Alimony & Spousal Support
Alimony & Spousal Support Lawyer Dedicated to Protecting Your Financial Future
Table of Contents
Frequently Asked Questions About Alimony
Am I going to have to pay alimony?
There are certain factors the court considers as primary factors in determining whether a spouse is required to pay alimony. The length of the marriage, disparity in incomes of the parties, and whether any party is at fault in the breakdown of the marriage are primary factors the court will consider. Generally (but not always,) a court will consider an alimony award if the parties have been married for at least 10 years. If one party earns significantly more than the other, this is also ripe for an alimony award.
Can alimony be terminated after we have been separated and filed a case for divorce?
Yes, alimony can be terminated if you are able to prove your spouse’s adultery that took place even after date of separation or filing a case for divorce.
How long do I have to pay alimony?
It depends on what the Court orders. If you are in a long-term marriage, informally defined as at least 10 years, while one spouse was the primary breadwinner while the other stayed at home and cared for the home and children, there is a higher likelihood that the earning spouse will be required to pay permanent alimony. Permanent alimony is to be paid until the payor or payee spouse dies, or the payee spouse remarries. Some situations may call for rehabilitative alimony where a spouse has been out of work for a period of time, but still has the ability to go to work and become self-supporting. In such cases, the court may consider ordering alimony for a period of time to get the supported spouse on his or her feet after which the obligation terminates.
What Is Alimony or Spousal Support?
Some important considerations you may have in preparing for or contemplating a divorce are whether you will be required to pay alimony and if so, how much. Or, if you are the dependent spouse, how much support can you obtain and for how long. Each case is different and presents its own set of facts and circumstances that influence how a judge will rule on this issue.
Our family court has authority to award spousal support or alimony and incidents of spousal support on a temporary and final basis. Alimony means direct payments to the other spouse whereas incidents of support include payments on behalf of the other spouse, including mortgage payments, health insurance, car payments, and the like.
The amount, type and length of alimony are left to the discretion of the judge and there is no set standard. The court is required to weigh certain factors set by law, including the incomes of the parties, legitimate monthly expenses of the parties, who has custody of the children, the child support obligation of a spouse, length of the marriage, and other factors.
Each party is required to file a Financial Declaration with the Court which is a sworn statement of your total monthly income, expenses, and asset values, among other requirements. The Court takes the sworn financial statement into consideration when deciding what, if any, support obligation a spouse is required to pay.
Generally, if you are in a long term marriage of at least 10 years, have been the homemaker, raised your children, have been dependent upon your spouse for most of the marriage, and your spouse is financially capable of paying support, you are a candidate for alimony. The court considers the circumstances of the parties including whether either worked during the marriage, the income disparity, whether a party can go back to work to earn an income, whether additional training or certifications would be impactful in obtaining additional income for a spouse, and other relevant factors in determining whether to award alimony.
An award of alimony at a Temporary Hearing does not guarantee the same alimony award will be granted at a final hearing. The amount and length of alimony is also judge dependent, meaning some judges award higher sums than others.
Types of Spousal Support
Types of alimony include lump sum, rehabilitative, or permanent periodic. Lump sum alimony is a lump sum payment of support and once paid, there is no obligation to pay any more support. This is a rare form of support as most people do not have significant cash to pay over to their spouse to satisfy support.
Rehabilitative alimony is support paid for a fixed period of time with the goal of getting the supported spouse on his or her feet to be able to earn a sufficient income without the need for support in the future.
Permanent periodic alimony is a monthly sum of support to be paid until the payor dies, the supported spouse dies, or the supported spouse remarries or cohabitates with someone tantamount to a marriage.
Alimony is not taxable nor deductible so that any support obligation is without tax consequence to either party. It cannot be taxed as income to the spouse receiving the support. It cannot be deducted by the spouse paying the support.
Temporary (Pendente Lite) Alimony
Temporary alimony is support awarded at a Temporary Hearing. The Court will consider the needs of the supported spouse and the ability to pay by the supporting spouse, the length of the marriage, and other factors, in determining whether and how much to award in temporary support. These and other factors the court considers in awarding alimony must be addressed in your affidavit for the hearing.
Sometimes, the Court will award incidents of support, such as requiring a spouse to pay the mortgage payment of the home where the supported spouse resides, or to maintain health insurance coverage for the supported spouse. These can be considered as part of the overall support your spouse is ordered to pay because it is money out of his or her pocket.
How Alimony Is Determined
An alimony award is solely within the discretion of the judge. There are no alimony guidelines the court considers in its award. It must weigh several factors outlined by statute in issuing its award, such as the physical and emotional condition of each spouse, educational background and the need for additional training or education to meet a spouse’s potential earnings, the employment history of each spouse, the standard of living during the marriage, anticipated earnings and expenses of each spouse, marital and nonmarital properties of the parties, which party has custody of the children, marital misconduct, and other support obligations of either party.
Modifying or Terminating Spousal Support
Change in Financial Circumstances
Under certain circumstances, you may be able to reduce the support you are required to pay or your spouse may be able to increase the amount of support paid. There must be a showing of a material and substantial change of financial conditions for this to happen. Loss of income through disability or other circumstances out of your control could be grounds to reduce or terminate support. On the other hand, a significant increase in pay may be a ground to seek an increase in support. South Carolina favors paying supported spouses until either party dies or the supported spouse remarries or cohabitates with someone akin to a marriage, therefore, these cases can be difficult.
Remarriage or Cohabitation
In South Carolina, if a supported spouse remarries, his or her support from a previous spouse will terminate. South Carolina also allows for termination of support in the event a supported spouse is engaged in a relationship tantamount to a marriage. This means, he or she must be proven to be cohabitating with someone romantically for a period of 90 consecutive days or more. Travel or temporary separation does not restart this time period. Cohabitation cases are difficult to prove and can be of significant expense.
Why You Need a Spousal Support Lawyer
Your request for spousal support or request to deny or limit support requires assistance from competent legal counsel. Many times, a supporting spouse underreports his or her income requiring that evidence be gathered to assist in determining his or her true income. Conversely, a spouse wanting to be supported fails or refuses to go back to work, or to work at his or her potential. These are all factors the court will consider in whether or how much to award in support. In addition, the factors set by statute must be proven to the Court in a competent manner to obtain a successful outcome.
Common Issues in Alimony Cases
In South Carolina, if you are committing adultery whether prior to or after separation from your spouse and it is proven, this results in an automatic bar to alimony. This fact alone can be catastrophic for a spouse in need of support.
Just because you are married less than ten years does not mean you may not qualify for alimony. The facts and circumstances of your case are important in determining whether you have a case for alimony.
The court will heavily rely on the parties’ financial declarations at the first hearing in determining the needs of the parties and the ability of a party to pay support. It is important to gather as detailed information as possible about your monthly expenses for the past several months to provide the court insight on what it takes to run your household each month. Part of that analysis also concerns the lifestyle you and your spouse had while living together. For instance, if you traveled significantly, purchased designer clothes and otherwise lived a wealthy lifestyle, the court will need to know this. It is usually a good idea to have a financial expert assist in preparing your financial declaration for these purposes.
Ready to get started?
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.