Alimony Flashcards
(38 cards)
What is the first factor to be considered by the court in awarding alimony?
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;
What is the second factor to be considered by the court in awarding alimony?
2) the physical and emotional condition of each spouse;
What is the third factor to be considered by the court in awarding alimony?
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;
What is the fourth factor to be considered by the court in awarding alimony?
4) the employment history and earning potential of each spouse;
What is the fifth factor to be considered by the court in awarding alimony?
5) the standard of living established during the marriage;
What is the sixth factor to be considered by the court in awarding alimony?
6) the current and reasonably anticipated earnings of both spouses;
What is the seventh factor to be considered by the court in awarding alimony?
7) the current and reasonably anticipated expenses and needs of both spouses;
What is the eighth factor to be considered by the court in awarding alimony?
8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
What is the ninth factor to be considered by the court in awarding alimony?
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;
What is the tenth factor to be considered by the court in awarding alimony?
10) marital misconduct or fault of either or both parties, whether or not 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 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;
What is the eleventh factor to be considered by the court in awarding alimony?
11) the tax consequences to each party as a result of the particular form of support awarded;
What is the twelfth factor to be considered by the court in awarding alimony?
12) the existence and extent of any support obligation from a prior marriage for any other reason of either party;
What is the thirteenth and final factor to be considered by the court in awarding alimony?
13) such other factors the court considers relevant.
What are the four (4) types of alimony awards?
Per SC Code § 20-3-130:
1) Periodic
2) Rehabilitative
3) Lump Sum
4) Reimbursement
What is Permanent Periodic Alimony?
Per SC Code § 20-3-130(B)(1):
- It terminates on remarriage or continued cohabitation of supported spouse (90 or more consecutive days);
- It terminates on death of either spouse (unless secured as allowed in subsection (D)); AND
- It is modifiable or terminable based on (substantial) change in circumstances.
Note, this is the preferred type of alimony by family courts in SC.
What is Lump Sum Alimony?
Per S.C. Code § 20-3-130 (B)(2)
- It is a FINITE SUM, whether it is in one payment or in multiple installment payments periodically over time;
- It terminates on death of supported spouse only;
- It is nonmodifiable;
- It is not the preferred method of alimony in SC, therefore it can only be considered in exceptional circumstances where it appears that the payor spouse may not make regular alimony payments. Its principle justification is the unreliability of the supporting spouse or by agreement of the parties (see Richardson v. Richardson, 309 S.C. 31 419 S.E.2d 806 (Ct. App. 1992)).
What is Rehabilitative Alimony?
Per S.C. Code § 20-3-130 (B)(3)
- It is also a FINITE SUM paid in one payment of in multiple installment payments periodically over time;
- It terminates on remarriage or continued cohabitation of the supported spouse;
- It terminates on the death of either spouse (unless secured as allowed in subsection (D)); and
- It is modifiable or terminable, but only when based upon unforeseen events frustrating the efforts of the supported spouse to become self-supporting or ability of the supporting spouse to pay support. (see Johnson v. Johnson for a list of factors to consider when awarding rehabilitative alimony established pre-statute).
What is Reimbursement Alimony?
Per S.C. Code § 20-3-130 (B)(4):
- It is a FINITE SUM paid in one payment or in multiple installment payments periodically over time;
- It terminates on remarriage of supported spouse;
- It terminates on death of either spouse (unless secured as allowed by subsection (D)); and
- It is NOT modifiable based on change of circumstances.
This is an important tool, in light of the fact that professional degrees are not subject to equitable apportionment.
What is the 90 Day Rule pertaining to the potential termination of alimony?
Per S.C. Code § 20-3-130(A):
“Continued Cohabitation” is defined as when “…the supported spouse resides with another person in a romantic relationship for a period of ninety (90) or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety (90) days and the two periodically separate in order to circumvent the ninety-day requirement. “
Why would the court award alimony in a domestic relations case?
- As Compensation: for loss in standard of living, disparity in earning capacity, loss of earnings or earning capacity due to caring for children or others, loss of investment made into other spouse’s earning capacity, disparity in ability to recover premarital standard of living due to the contribution of non-marital assets to the marriage or of foregone opportunities.
- As Punishment for marital misconduct.
Can alimony be barred in certain cases?
Yes. Per SC Code 20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two (2) events: (1) the formal signing of a written property or marital settlement agreement or (2) 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.”
Before Alimony provisions were set by statute in SC, what case set forth ten (10) of the (13) considerations of the court and what are some of the facts of that case?
Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988).
Facts: H & W signed a pre-nup. After only 14 months of marriage, W filed for divorce on grounds of physical cruelty. H sought enforcement of the pre-nup. W counterclaimed for a divorce, alimony, and other relief. The Family Court held that the pre-nup was invalid and awarded W rehabilitative alimony of $300 per month for a year. W appealed, claiming that the alimony award was inadequate to maintain the standard of living she had become accustomed to during the marriage and that there was no evidence showing that she would be able to support herself after the rehabilitative alimony period.
Holding: The Family Court erred in awarding W rehabilitative alimony, rather than permanent, periodic alimony, despite fact that marriage lasted only 14 months because Husband was responsible for short duration of marriage, rehabilitative alimony would have restored Wife to standard of living she had before marriage, rather than standard of living she enjoyed during marriage, Husband’s financial resources and earning capacity far exceeded Wife’s, and Husband had financial ability to meet his own needs while supporting wife at standard of living she enjoyed during marriage.
The Court said:
“Alimony may be awarded as periodic payments or in a lump sum. It may also be awarded as permanent support or as temporary, rehabilitative support. The power to award lump sum alimony should be exercised only where special circumstances require it….Similarly, rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference for permanent, periodic support.”
The factors to be considered in awarding rehabilitative alimony include: (1) the duration of the marriage: (2) the age, health, and education of the supported spouse; (3) the financial resources of the parties; (4) the parties’ accustomed standard of living; (5) the ability of the supporting spouse to meet his needs while meeting those of the supported spouse; (6) the time necessary for the supported spouse to acquire job training or skills; (7) the likelihood that the supported spouse will successfully complete retraining; and (8) the supported spouse’s likelihood of success in the job market. There must be evidence demonstrating the self sufficiency of the supported spouse at the expiration of the ordered payments in order for rehabilitative alimony to be granted. Citing Toler v. Toler, 356 S.E.2d 429 (Ct. App. 1987).
If you fail to seek alimony in a divorce or a separate support and maintenance action, will you still be able to seek it in the future?
NO. Failure to seek alimony in a divorce or separate support and maintenance case will waive the right to seek it in the future.
HOWEVER, the issue of alimony may be reserved for future determination by the Family Court.
What must you show in order to reserve the issue of alimony?
In order to reserve alimony, absent an agreement, you must show “…an identifiable set of circumstances that is likely to generate a need for alimony in the reasonably near future.”
Donahue v. Donahue. 299 S.C. 353, 384 S.E.2d 741 (1989)
