Vol. 10, No. 5, Pg. 40. Representing the (Innocent) Primary Wage-Earner in Divorce and Child Custody.

• Author: By Conrad Falkiewicz and Gregory Forman

South Carolina Lawyer

1999.

Vol. 10, No. 5, Pg. 40.

Representing the (Innocent) Primary Wage-Earner in Divorce and Child Custody

40Representing the (Innocent) Primary Wage-Earner in Divorce and Child CustodyBy Conrad Falkiewicz and Gregory FormanA primary wage-earner who does not precipitate the break-up of the marriage deserves to maintain the marital lifestyle and preserve his or her relationship with the children. Substantial attention is paid in the case law to maintaining the non-wage-earner or "homemaker" in the marital lifestyle and to preserving the homemaker's relationship with the children.

Using the same theories, a lawyer can make sure the wage-earner keeps enough income and marital assets to maintain the marital lifestyle and continue a relationship with his or her child or children.

South Carolina law describes marriage as both a contract (S.C. Code Ann. § 20-1-510, 530) and an "economic partnership." E.g., Mallett v. Mallett, 323 S.C. 141, 473 S.E.2d 804, 810 (Ct. App. 1986). Spouses in traditional marriages often sacrifice opportunities and develop skills in a complementary fashion.

"Homemakers" forego career development in the expectation that their spouses will take care of their families' economic needs. "Wage-earners" pursue careers while leaving most domestic and child care tasks to their spouses. In a lengthy marriage, both spouses become dependant on the other: one unable to earn a sufficient income to support the lifestyle and the other unable to run the household or provide adequate full-time child care.

Even in less traditional marriages, divisions between wage-earner and homemaker typically remain. When a lengthy marriage ends, one or both parties' expectations are dashed. Further, the expense and effort of maintaining two households means the parties face a reduction in living standards, and the issue becomes how the diminution should be allocated.

THE IMPORTANCE OF FAULT

Issues of fault permeate traditional-marriage divorces. Fault is a factor in dividing marital property. S.C. Code Ann. § 20-7-472 (2). It is a factor in alimony. S.C. Code Ann. § 20-3-130 (C)(10). Fault is also relevant in child custody determinations, as long as the parental misconduct is detrimental to the child. E.g., Jones v. Jones, 290 S.C. 49, 348 S.E.2d 178, 179 (Ct. App. 1986) (wife's drug use and adultery factor in child custody award to husband).

But "fault" has a different meaning in alimony and equitable distribution than it does as grounds for divorce. Behavior that is not grounds for divorce under S.C. Code Ann. § 20-3-10 may still be the cause of the marital breakup.

Consider a situation in which one spouse is imprisoned for life on a conviction for first-degree burglary, after which time the other spouse begins cohabitation with someone of the opposite sex. The burgling spouse would have grounds for divorce, though few would argue that this criminal behavior did not cause the marital breakup.

A wage-earner's behavior that creates a fault grounds for divorce may have been precipitated by the homemaker's financial irresponsibility, unrealistic demands or unconcealed contempt. Though not excusing the wage-earner's cheating, hitting, drinking or drugging, the other parties' misbehavior can still be the underlying cause of the marital breakup. One should not always equate a wage-earner's behavior giving rise to a "fault" divorce ground with "fault" as the cause of the marital breakup.

Most South Carolina appellate decisions dealing with the dissolution of lengthy marriages involve at-fault wage-earners and innocent homemakers. In these circumstances, it does not seem unfair to

42 require substantial support by the wage-earner, even if the wage-earner faces a major diminution in lifestyle. However, where the wage-earner is the innocent spouse (regardless of but especially in cases of the homemaker's fault), any post-divorce diminution in lifestyle seems unjust.

ALIMONY

If marriage is a contract, fault is its breach. Though a substantial equitable distribution award is consistent with the ending of the marital partnership, an award of alimony (i.e., future performance of an agreement to support) appears inconsistent with a finding of fault. Yet marriage is the rare contract that can be breached while continuing performance is demanded by the breaching party.

Other than instances of adultery, where alimony is generally barred (S.C. Code Ann. § 20-3130(A)), alimony can be, and at times must be, awarded despite a finding of fault against the supported spouse. See, Belton v. Belton, 325 S.C. 456, 481 S.E.2d 174, 176 (Ct. App. 1997) (remanding for award of permanent alimony despite finding of supported spouse's fault in marital breakup).

Commentators have had difficulty discovering a...