Chapter Six Alimony

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Six ALIMONY¹

A. In General

1. Summary of Alimony Law in South Carolina

Comprehensive legislation about alimony was enacted in 1990, and it applies to all actions for divorce or for separate maintenance and support filed on or after November 29, 1990. South Carolina Code Ann. § 20-3-130 (Supp.) now codifies much of the pre-existing case law about alimony.

The case which most clearly illustrates the current state of the law with respect to alimony in South Carolina, as well as some of the concerns about it, is Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988). Dr. Johnson, a dentist, married his dental hygienist on May 11, 1985. They had signed a premarital agreement. The wife left after 14 months on July 14, 1986, due to verbal and physical abuse. Dr. Johnson sought enforcement of the premarital agreement, and the wife counterclaimed for a divorce, alimony, and other relief. The family court held that the agreement was invalid and granted rehabilitative alimony of $300 per month for 12 months. Mrs. Johnson appealed, arguing that the alimony was inadequate to maintain the standard of living that she enjoyed during the marriage and that there was no evidence to show she would be able to support herself at that level after a 12-month rehabilitative period. The following quote from the Court of Appeals' opinion provides an overview of the law of alimony in South Carolina:

Alimony is a substitute for the support which is normally incident to the marital relationship. Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981). Ordinarily, the purpose of alimony is to place the supported spouse, as nearly as is practical, in the position of support she enjoyed during the marriage. See Voelker v. Hillock, 288 S.C. 622, 344 S.E.2d 177 (Ct. App. 1986).
Alimony may be awarded as periodic payments or in a lump sum. Section 20-3-130, Code of Laws of South Carolina, 1976; McCune v. McCune, 284 S.C. 452, 327 S.E.2d 340 (1985). It may also be awarded as permanent support or as temporary, rehabilitative support. See Section 20-3-130; cf. Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736 (1963) (permanent alimony); Herring v. Herring, 286 S.C. 447, 335 S.E.2d 366 (1985) (temporary, rehabilitative support). If a claim for alimony is well founded, the law favors the award of permanent, periodic alimony. See O'Neill v. O'Neill, 293 S.C. 112, 359 S.E.2d 68 (Ct. App. 1987).
The power to award lump sum alimony should be exercised only where special circumstances require it. Millis v. Millis, 282 S.C. 610, 320 S.E.2d 66 (Ct. App. 1984). Lump sum awards are not favored and should be given only in exceptional cases or when consented to. Matheson v. McCormac, 186 S.C. 93, 195 S.E. 122 (1938). An award of lump sum alimony must be supported by some impelling reason for its necessity or desirability. Millis v. Millis, supra.
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 purpose of rehabilitative alimony is to encourage a dependent spouse to become self supporting after a divorce. Toler v. Toler, supra. [292 S.C. 374, 356 S.E.2d 429 (Ct. App. 1987)]. It permits former spouses to develop their own lives free from obligations to each other. Id. However, it should be approved only in exceptional circumstances, in part, because it seldom suffices to maintain the level of support the dependent spouse enjoyed as an incident to the marriage. See id.; Voelker v. Hillock, supra.
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. Toler v. Toler, supra.
In this case, the court found as a fact that Mrs. Johnson's standard of living during the marriage was much higher than her premarital standard of living and more than her income after dissolution of the marriage could sustain. Without explaining why rehabilitative alimony was appropriate, the judge fixed alimony at an amount which, at best, would restore her to her standard of living before she married, not, as the law requires, the standard of living she enjoyed during the marriage. This was an error of law amounting to an abuse of discretion.
The record reveals a great disparity in the financial resources and earning capacities of the parties. Moreover, it shows that Dr. Johnson has the financial ability to meet his own needs while supporting Mrs. Johnson at the standard of living she enjoyed during the marriage. It is likewise apparent that Mrs. Johnson could not possibly sustain her marital standard of living on her own earnings at the end of the period of rehabilitation. To require Dr. Johnson to pay a paltry $3,600 in support of his former spouse is plainly insufficient. These circumstances mandate an award of permanent, periodic alimony.
Dr. Johnson argues, and the family court agreed, that the short duration of this marriage weighs in favor of rehabilitative alimony. He overlooks the fact that his own conduct was responsible for its quick demise. Mrs. Johnson was entirely blameless for the failure of the marriage. When she married, she was entitled to expect a lifelong partnership which would provide her with a high standard of living and great financial security. Without cause, Dr. Johnson brought those prospects to an end. In effect, he now asks us to treat the result of his own misconduct as an equity in his favor.
Unlike most cases, fault is a substantial factor in awarding alimony in this case. Dr. Johnson, not Mrs. Johnson, is to blame for the shortness of the marriage. When the duration of the marriage is seen in its proper light, the equities favor Mrs. Johnson, not Dr. Johnson. An at[-]fault spouse cannot destroy a marriage and then claim its short duration entitles him to more favorable consideration when the economic adjustments attendant to divorce are made.
We reverse the award of rehabilitative alimony and remand for an award of permanent, periodic alimony. See Voelker v. Hillock, supra. The factors which should guide the judge's discretion in making the award are set forth in Lide v. Lide, supra. While based upon the reasonable needs of the wife to maintain her marital standard of living, the award should also take into account her own earning capacity. Alimony should not serve as a disincentive for her to improve her employment potential nor dissuade her from providing, to the extent feasible, for her own support. Josey v. Josey, 291 S.C. 26, 351 S.E.2d 891 (Ct. App. 1986).

Johnson at 300-303, 372 S.E.2d at 113-115.

Although the 1990 amendments to S.C. Code § 20-3-130 (Supp.) codify the factors to consider in awarding alimony, cases decided since 1990 do not reflect any significant changes in the appellate courts' treatment of alimony issues.

2. Historical Justifications and Criticisms of Alimony

Alimony is money that one spouse is ordered to pay for the support of the other spouse in an action for divorce, whether pendente lite or on the merits of the case. There is no difference between alimony and separate support and maintenance, except that separate support and maintenance is what spousal support is called in actions for separate support and maintenance, and alimony is what it is called in divorce actions. (There is a separate chapter on actions for separate support and maintenance.)

Alimony, like divorce, was unknown at the common law. It exists because statutes authorize it and courts see fit to award it. Insight into the origin and purposes of alimony is provided in C.J.S., which explains:

Alimony is founded on the natural and legal duty, the [common law] and statutory obligation, of one spouse to support the other spouse, which continues as long as they remain husband and wife, and which is not removed by asking for or obtaining a divorce. Alimony for one spouse by another has been called a substitute for the statutory right to marital support during coverture, and it has also been termed an allowance in lieu of a spouse's legal obligation to support the other spouse.

27B C.J.S. Divorce § 307.

Alimony was originally a remedy of the English ecclesiastical courts developed at a time when complete divorce was available only by special legislative action, and gender roles in the marriage were rigid and unquestioned. The husband had a legal and customary duty to support his wife. This duty continued after divorce because there was no divorce in the modern sense, but only legal separation. When judicial divorce became available in the 18^th century, alimony remained a remedy even though its initial justification - the duty of the husband to support his wife - no longer applied. One explanation was that the duty to support one's wife could not be extinguished by the husband's own misconduct. Following that rationale, some jurisdictions allowed alimony claims only by "innocent" wives divorcing "guilty" husbands. Other jurisdictions, focusing on the wife's financial dependency, in theory allowed claims by guilty women as well. This view was eventually adopted by the English ecclesiastical courts from their concerns that the wife might otherwise "be turned out destitute on the streets or led into temptation," the assumption being that women were limited to domestic skills and could not support themselves by employment. The

...