The common questions from our clients in any potential divorce is “How much alimony will I be required to pay and for how long? The answer to these questions is difficult to determine and ultimately is up to the Judge to determine.
With this determination comes many subjective factors involved in any Judge’s decision making. Is the Judge male or female? Younger or older? What side of the bed did the Judge wake up on the day that your case is going to court? Does the Judge like the client? Whether we like it or not, our law grants Judges a great deal of discretion in making alimony awards.
South Carolina is a state that favors marriage and preserving the family unit as much as possible. It is also a state that favors supporting a former spouse as much as possible.
There is a list of factors by law the Court is required to weigh in determining alimony awards both at a temporary and a final hearing:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of support awarded;
(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
At a temporary hearing, the Court heavily weighs the actual needs of a supported spouse versus the ability to pay by the payor spouse, length of the marriage, and potential earnings of each spouse. Where a spouse is underemployed and can earn more than he or she is earning, this is also a factor that the Court must consider. There are numerous factors the Court must weigh in determining whether a spouse is underemployed that goes beyond the scope of this article.
The Court will also only consider how the parties have been conducting themselves leading up to the time of a temporary hearing, i.e., was husband paying the mortgage payment, car payment and other expenses for wife for a period leading up to the time of the hearing? In such case, the Court will be more inclined to maintain the status quo of what the parties had been doing leading up to the time of the hearing.
Each party is required to file a sworn Financial Declaration disclosing his and her income and expenses each month, along with assets and debts. The Court renders the needs of a party and ability to pay based off the financial circumstances of the parties. If child support is also awarded, it comes into consideration in determining whether alimony should be awarded and how much.
Alimony awards tend to be higher at temporary hearings than at a final hearing. Unfortunately, high alimony awards can and will serve as a disincentive for a spouse to settle for anything less than what he or she is receiving temporarily which means that the supporting spouse is “stuck” paying the award until the case goes to trial if not settled before then.
Alimony is a hot topic in this State and has been for a while given the great disparity of awards between judges. Where there is a long-term marriage with great disparity of incomes and the ages of the parties are past peak earning years, permanent periodic alimony is a sure bet. This means the payor spouse is required to pay support until the death of either party, the payee remarries, or the payee engages in a relationship tantamount to marriage.
