Alimony is one of the most contentious issues in a South Carolina divorce. Your best resource is a South Carolina divorce attorney that is familiar with the Family Court judges in your area and can advise you on what to expect if you let a judge decide how much and for how long you will pay spousal support to your ex spouse. This page is about spousal support after a South Carolina divorce, including when courts order alimony, how the amount of spousal support is set in South Carolina, and how and when South Carolina courts stop alimony once it's awarded.
When Does the Court Order Alimony
Alimony is also sometimes called spousal support although there may be a difference but for the purposes of this article they are used interchangeably. It's designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support. Spousal support is different from child support. Where child support is a simple mathematical calculation using guidelines published by South Carolina, spousal support is very much in the discretion of the judge.
It's rare to see permanent spousal support ordered in a marriage of less than 10 years or so, and also rare to see it awarded in cases where the incomes of the two spouses are more or less equivalent. To state it the other way, alimony is usually reserved for situations where one spouse has been economically dependent on the other for most of a lengthy marriage. However, there have been cases of spousal support being awarded in a marriage as short as seven years when the breadwinner was at fault in the break up of the marriage.
There is a possibility of rehabilitative alimony after shorter marriages. Rehabilitative support is the solution some courts apply when one of the spouses needs some time to transition back into the job market. Perhaps the prototypical rehabilitative alimony case is the teacher who's been away from the classroom for a few years and who needs to take a few courses to renew her teaching certificate. The court might order her ex-husband to pay her modest alimony for two or three years so she can do this and restore her income.
There is no formula for setting the amount of spousal support; instead, the determination of alimony rests in the discretion of the trial court judge. Alimony is to be granted only on a showing of need by one party together with the requisite ability to pay by the other. The facts eligible to be considered in setting spousal support include the parties’ respective earning ability and future prospects, their ages and health, the length of the marriage, the value and type of property, and the conduct of the parties.
Can Alimony be Changed or Terminated
Unless there is an agreement to the contrary, alimony is always modifiable. Changing alimony generally requires a showing of a fundamental change in circumstances, and it's rare to see alimony increased just because the payor's fortunes have improved. More typical would be the case where the payor's income has taken a downturn since the award of alimony, for reasons the court believes are not self-imposed. In those cases, the court may reduce alimony or may eliminate it entirely.
Alimony stops when either party dies, when the spouse receiving alimony remarries or cohabits for at least ninety days. Cohabitation means something more than simply having sex with each other, or even spending a night together. It takes more of a pattern of occupying the same residence, as evidenced by things like delivery of mail and voting registration, storage of clothing, eating meals together, etc. Alimony can also stop by an agreement of the parties entered in court or by a court order where there is a showing that alimony is no longer necessary.
Alimony and Taxes
Currently, alimony gets treated differently from child support on your tax return but this is changing. In previous years, alimony was tax deductible to the person who paid it, and included in the taxable income of the person who received it. This changes under the Tax Cuts and Jobs Act (TCJA). The old-law treatment continues for alimony payments made under pre-2019 divorce agreements. But for payments made under post-2018 agreements, things will change dramatically since alimony payments will no longer be tax deductible. For individuals who must pay alimony, this change can be expensive because the tax savings from being able to deduct alimony can be substantial. Child support is not taxable to the person who receives it and not tax deductible to the person who pays it. That means that when you and your spouse have dramatically different incomes, there may be some tax advantages to using alimony in 2018, even if a judge wouldn't ordinarily award it.
The tax advantages of using alimony can be so powerful that people going through divorce are tempted to label as alimony some payments that are really child support or property settlement. But Uncle Sam has already anticipated that. The government's response is in the form of two tests:
The payments must be in cash. Checks or money orders are acceptable, but not debt, property, or services.
The payments must be provided for in a divorce or a written agreement
You can't claim alimony during any year for which you file a joint tax return.
You can't pay alimony during a time when you and your spouse live in the same residence.
It has to be specifically noted as spousal support or alimony.
Congress recognized the temptation to characterize property settlements as alimony, so the 1984 Tax Reform Act contains provisions calling for the recapture of "excess" alimony that looks too much like a property settlement. Specifically, the rules provide that if alimony is excessively "front-loaded" (concentrated too much in the first two years of payments), the paying spouse must "recapture" it. (That means the paying spouse must include it in his or her gross income).
You know you're safe if alimony doesn't decrease by more than $10,000 during any one of the first three years in which alimony is paid.
Next, the test for alimony fixed as child support is actually three separate tests.
You can't call it child support
You can't change it based on something that happens to a child
You can't change it based on something that's associated with something that happens to a child
Of course, these tests go away after 2018 and it does not appear that alimony would be tax deductible even if that is specifically set out in your divorce decree.
Alimony Law In South Carolina
The amount to be awarded for spousal support, as well as a determination of whether a spouse is entitled to alimony, is within the sound discretion of the family court. Smith v. Smith, 264 S.C. 624, 628, 216 S.E.2d 541, 543 (1975). An abuse of discretion occurs when the decision is controlled by an error of law or is based on factual findings without evidentiary support. Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct. App. 2004).
The purpose of spousal support is to place the supported spouse, as close as is practical, in the same position of support as during the marriage. Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988). If the claim for alimony is well-founded, the family court has the duty of making "an alimony award that is fit, equitable, and just." Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001). The family court should consider the following factors in awarding spousal support:
(1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5) standard of living established during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses of the parties; (8) marital and nonmarital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; and (12) prior support obligations; as well as (13) other factors the court considers relevant.
Davis v. Davis, 372 S.C. 64, 79-80, 641 S.E.2d 446, 454 (Ct. App. 2006) (citing S.C. Code Ann. § 20-3-130(C) (Supp. 2009)). The South Carolina Supreme Court has held "[t]hree important factors in awarding periodic alimony are (1) the duration of the marriage; (2) the overall financial situation of the parties, especially the ability of the supporting spouse to pay; and (3) whether either spouse was more at fault than the other." Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004). In making an alimony award, "[n]o one factor is dispositive." Pirri v. Pirri, 369 S.C. 258, 267, 631 S.E.2d 279, 284 (Ct. App. 2006).
Further, alimony is intended to be neither a reward nor a punishment. Kane v. Kane, 280 S.C. 479, 484, 313 S.E.2d 327, 330 (Ct. App. 1984). "Marital fault is only one of the factors the family court must consider in making an award of alimony." Gilfillin v. Gilfillin, 334 S.C. 213, 222, 512 S.E.2d 534, 538 (Ct. App. 1999), rev'd on other grounds, 344 S.C. 407, 544 S.E.2d 829 (2001). South Carolina courts have awarded spouses support in spite of the fact that they had fault in the breakup of their marriages. See Lee v. Lee, 282 S.C. 76, 79-80, 316 S.E.2d 435, 437-38 (Ct. App. 1984) (affirming the award of alimony to wife of $150 per month for six months when her habitual drunkenness caused the breakup of the marriage and she was able to work); see also Murray v. Murray, 271 S.C. 62, 64, 244 S.E.2d 538, 539 (1978) (affirming the family court's award of alimony of $400 per month for six months when wife's conduct caused the disintegration of the marriage and she was able to work).
For a Divorce lawyer in Greenville, Spartanburg or Pickens County call
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Wayne Patterson, Attorney at Law
10 Century Dr.
Greenville, SC 29607
Wayne is a Greenville family law attorney including probate, elder law, trusts, child custody, special needs trusts and South Carolina divorce.
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Military wages can be garnished to collect alimony. You must submit a form called an "Income Withholding Order". This form is then sent to the Defense Finance and Accounting Service at the address below in order to initiate the garnishment of military wages for alimony. The Income Withholding Order is the only form that will authorize the military to withhold money. Even a divorce decree that orders a member of the military to make alimony payments is not sufficient. The form can be mailed or faxed to the following office:
To apply for payments under the Uniformed Services Former Spouses' Protection Act, a completed application form (DD Form 2293) signed by a former spouse together with a copy of the applicable court order certified by the clerk of court should be served either by facsimile or by mail, upon the:
Defense Finance and Accounting Service
P.O. Box 998002
Cleveland, Ohio 44199-8002
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