According to Dictionary.com, alimony is defined as “an allowance paid to a person by that person’s spouse or former spouse for maintenance, granted by a court upon a legal separation or a divorce or while action is pending.” In every state, alimony laws vary, so you will need to consult your legal counsel for the best advice. However, this article aims to give South Carolina readers information about what to expect when it comes to alimony in their state.
How Is Alimony Calculated?
How much alimony will you have to pay? And for how long?
In determining alimony amounts, the court examines the disadvantaged spouse when they are coming up with a support payment amount. There are certain factors that go into how long one spouse must support the other after a divorce takes place.
Some of these factors are:
- The length of the marriage. Support obligations for a marriage lasting 20 years will differ from a marriage that lasted 5 years.
- Emotional/physical health and condition of the disadvantaged spouse. The court may order support if one spouse is quite ill.
- Education. Does one spouse have a Master’s degree, while the other only holds a high school diploma? Will this prevent them from getting back into the workforce?
- Work history. Someone who has a long, continuous employment history shows that they are capable of paying support. Likewise, if the disadvantaged spouse has a good and continuous work history, he or she may not even need the support, as they are capable of doing it themselves.
- Financial health. Divorce can and will change your finances. To prevent defaults on loans and mortgages, support may be ordered.
- Anticipated earnings and/or expenses. Your support payments may be increased or decreased as a result.
- Custody of children. To raise a child is a rewarding but expensive venture. The court usually considers alimony and child support payments at the same time.
- Adultery. If adultery is committed, the cheater cannot get alimony in South Carolina.
- Taxes. Thanks to new tax laws and regulations that have gone into effect, the tax end of alimony is a subject all on its own. We will discuss this later, so you understand these new laws.
The judge will ask the divorcing couple a few key questions:
- Do you or your spouse require alimony?
- If so, why is it needed?
- Can you or your spouse actually afford to pay alimony without hardship?
- Is this a fault divorce?
How Long Will I Pay Alimony?
Like most legal matters, this depends on your situation. If you settle the divorce, you will be able to choose. Many divorces end this way – settling and not going to trial.
You can ask the court to modify the alimony if you are paying “rehabilitative” or “periodic sum” payments. This makes sense: Your ex should not be enjoying extra money coming in if they are already remarried or in a job that pays enough to live. The courts can also be asked to lower your alimony payment if the circumstances surrounding your individual situations change. If your payments are beyond your control, you can also ask the courts for assistance with that, too.
Some changes cannot be made, however. You cannot modify lump sum or reimbursement support payments. To negotiate these, you should speak with your spouse directly. You can attempt to get them to agree to a new contract, but that will depend on your own situation.
When Will the Court Order Alimony?
Unlike child support, which uses a simple mathematical calculation that the state of South Carolina publishes, the awarding of spousal support is up to the judge’s discretion.
That being said, it is rare to see spousal support ordered in a marriage of less than ten years. It is also rare to see it awarded in cases where the incomes of the two spouses are just about the same amounts.
Alimony is usually only awarded in situations in which one spouse has been dependent upon the other economically. There have been cases of spousal support being awarded in a marriage that have been shorter than ten years; however, only where the primary earner or breadwinner was at fault for the dissolution of the marriage.
You may encounter the possibility of rehabilitative alimony, which we will discuss. This is the solution used by some courts when one of the spouses needs time to get back into the job market with skills they can use in a current and productive workforce.
For instance, you might find a teacher who has been out of the classroom for so many years that practices and protocols have changed, or a mechanic who is not skilled in fixing newer cars. Individuals like these may need funds to attend schools or classes that teach these skills, and the spouse will pay modest alimony amounts to allow this to happen and in turn help achieve self-sufficiency.
Types of Alimony
In South Carolina, there are four types of alimony. The goal behind these payments is to help a disadvantaged spouse support themselves.
This is a lump sum payment, or a payment made in one go. One check is written and handed over. For instance, a wife may write a husband a check for $25,000 a day before the divorce decree is signed by the justice of the peace.
This one is a bit hard to explain without an example.
Imagine that a husband worked for many years and was the only source of income while his wife went to school. The husband paid for educational expenses like books, fees, and other supplies. The court may order the wife to reimburse her husband for the “opportunity expenses” incurred while she was in college.
Permanent Periodic Sum
This is the sort of payment that usually comes to mind when somebody thinks about alimony. A periodic sum alimony payment means that one spouse will pay a set amount each and every month until the court terminates it. These periodic sum payments are only paid for a limited time. This means that the spouse responsible for paying them must do so until the other spouse dies or gets married again. Spouses can also come to an agreement about when the spousal support will come to an end.
Rehabilitative payments are a type of alimony that goes on for a limited time. Court ordered rehabilitation payments are put in place so a disadvantaged spouse can increase their power to earn money. Rehabilitation is not used in a health sense here; rather, it refers to schooling or vocational education.
For instance, suppose you had a wife who stopped her career in order to raise the couple’s children. The technology, business practices, and overall skill set requirements changed while the wife was away for 18 years. The wife will probably have a hard time finding a job. The court can then order the husband to pay rehabilitative alimony so she can learn the skills necessary to thrive and grow in the workplace, sustaining herself for the future.
Separate Maintenance and Support Alimony
This is what you might hear alimony called if a couple is separated and in the middle of divorce or a separation. This is temporary and lasts until a final order is put in. Not unlike periodic alimony, this period is paid on a regular basis, usually by the month, and can be altered or even dissolved if there is a substantial change in the circumstances before the end of the contract. You might hear this referred to as alimony pendente lite, which means it is temporary until further orders are given by the court.
New Tax Laws and Alimony
As you are likely aware, a major change to the federal tax code took effect on January 1, 2019. This concerns alimony payments, and you should have a basic understanding as you approach making your own alimony payments.
Before, most types of spousal support or alimony payments were deductible for the spouse who was paying (payor spouse), and the recipient of the payments was required to list the monies as income on their federal tax returns. At the start of 2019, this 75-year-old deduction on taxes was eliminated for the spouse making the payments. The recipient spouse will no longer have to claim the payments as income.
This means that alimony will become even more expensive for the payor spouse. Because spouses tend to be in differing tax brackets when spousal support is awarded, this change could seriously reduce the combined income of the two spouses. Any divorces that were finalized on or before December 31, 2018 are NOT subjected to these changes in the tax laws. Any divorces that were finalized after this date will be subject to the new laws.
How Can I Terminate or Modify Alimony?
Certain events may terminate alimony or permit the modification of the amount that is owed. Permanent or periodic alimony is one that continues until either spouse dies or the recipient spouse gets remarried. In some instances, periodic alimony may be dissolved if the recipient spouse enters into a romantic relationship or begins living with another individual. Generally speaking, all types of alimony will terminate with the death of either spouse.
Alimony is almost always able to be modified. Changing alimony usually requires you to show a fundamental change in your financial circumstances, and it is rare to see an increase of alimony just because the payor spouse has increased their earnings. More likely than not, you would encounter a case in which the payor’s income has taken a dip since alimony was awarded, for reasons the court believes to not be self-imposed. In cases like this, the court may reduce the alimony or just eliminate it altogether.
Alimony will stop when either party passes away, or when the spouse receiving the alimony cohabits for at least 90 days or remarries. Cohabitation does not simply mean spending one or two nights together. It refers to a pattern of occupying the same residence, and you get mail there, eat meals and sleep there, register to vote in that district, etc. Alimony can also stop if both parties agree that it is no longer necessary.
Other Helpful Things to Know About Alimony
You can still get alimony if you are separated. South Carolina does not have “legal separation,” but they do have “temporary orders” hearing. This temporary order hearing asks the court for child support and also temporary spousal support while the case is pending. This ensures both parties are supported while everything is getting sorted out.
Special Note on Death and Alimony
After you pass away, everything you own is transferred to your estate. Your ex-spouse may have a claim against your estate for the remaining amount of the spousal support you were paying before you died. You should be mindful of this as you plan your estate. Be sure that you have a will in place.
A Settlement Can Have Two Winners
Trials are always a risk. The judge may make a decision that leaves both spouses disappointed in some way. All couples divorcing in South Carolina have to go to mediation as a result of this.
By doing this, the big questions get answered, such as custody decisions and property division. This is also where spousal support is decided. Choosing to settle means you can get a monthly payment you both can agree on, and you can end it in just a few years.
Success in getting alimony or opposing the awarding of such funds is dependent upon each individual situation. Your divorce judge has the discretion to decide whether or not alimony should be awarded, and how much should be awarded.
The decision this judge makes can cost thousands for many years, and the amount awarded can really make or break somebody’s life. Be sure to speak with your own legal counsel at length about how to best approach the situation for you and your spouse.