If you are facing alimony payments as a result of your recent divorce, you likely have many questions about how to handle the proceedings as the alimony payor. You might also want to know how the court determines the amount you’ll be paying and how long you have to support your ex-spouse.
Our family law attorneys at Fender Law Firm LLC share some helpful dos and don’ts for the alimony payor in South Carolina, including details about how the court calculates alimony and how you can change or terminate spousal support payments. If a South Carolina family court orders you to pay alimony, schedule a consultation with our legal team to ensure you understand the process and what mistakes to avoid.
Do: Understand How the South Carolina Family Court Calculates Alimony
The family court typically awards alimony if one spouse was financially dependent on the other during the marriage. Depending on the circumstances of the case, the judge will determine the amount and duration of the alimony.
In South Carolina, the court takes into account many factors when calculating the duration and amount of alimony, including:
- Marriage duration
- Marital standard of living
- Marital and nonmarital properties
- Marital misconduct or fault
- Physical and emotional conditions of each party
- Your and your spouse’s employment history and earning potential
The following are examples of how certain factors affect the court’s decision when calculating alimony:
Standard of Living
South Carolina considers standard of living when deciding alimony, meaning the judge will look at how the supported spouse lived during the marriage to determine an amount that allows them to maintain that lifestyle.
The judge will evaluate the supported spouse’s job history and earning ability and see how long it might take for them to complete the education or training necessary to continue their previous standard of living.
The family court also examines marital misconduct or fault, such as adultery or abuse, in their alimony calculations. The at-fault spouse might have to pay a higher amount for punitive alimony.
The supported spouse may not be awarded alimony if they commit adultery before the earliest of these two events:
- Signing a written property or marital settlement agreement
- Filing an order of separate maintenance and support or order approving a property or marital settlement agreement
If the supported spouse has custody of the dependent child or children, you may owe a higher alimony amount. If the custodial parent struggles to find full-time work or must stay home because of a child’s age or condition, the court might give a larger award of alimony.
Alimony Payor’s Financial Resources
The South Carolina family court will also take into account your financial resources and whether you can satisfy your needs and pay alimony at the same time.
While the above factors are common elements of judging alimony in a divorce case, the calculations are done on a case-by-case basis. You (the alimony payor) and your spouse also have the option to agree on alimony and other issues in the divorce through alimony mediation.
Do: Be Aware of How Long You Have to Pay Alimony
The court typically determines the duration of alimony payments based on the length of the marriage. A common standard is one year of alimony for every three years of marriage, but the judge might decide differently depending on the case. In some cases, the supported spouse stops qualifying for alimony when they remarry, but the judge could also award permanent alimony.
If you settle alimony through mediation, you and your ex-spouse will choose the duration.
Do: Learn About the Type of Alimony Payment Agreed Upon
Knowing the type of alimony payment in your agreement will give you essential information on whether you can modify or terminate the payments if something happens in the future. In South Carolina, the family court can award the following types of alimony:
- Alimony pendente lite – temporary alimony awarded to a spouse to provide financial support during divorce proceedings.
- Lump sum alimony – a set amount that you either pay in one full payment or in installments.
- Periodic alimony – typically, monthly payments that last only as long as it takes for the supported spouse to become financially independent.
- Reimbursement alimony – a type of alimony that helps one spouse recover money spent on the other spouse’s education, career, etc. For example, a judge might order you to pay reimbursement alimony if your spouse worked full time and helped pay for your college degree.
- Rehabilitative alimony – financial support for the supported spouse while they attend school or training to reenter the workforce. The court determines the duration of the alimony, and the recipient must show effort in good faith to become financially independent.
- Separate maintenance – a support payment awarded to a spouse when the parties aren’t divorcing but are living separately and not in a relationship.
Do: Determine Whether Your Alimony Payments Are Tax Deductible
If you finalized your divorce before December 31, 2018, your South Carolina alimony payments are deductible when filing your federal taxes. For the supported spouse, alimony payments are taxable income. However, divorces finalized in 2019 onward no longer qualify as deductibles or taxable income in South Carolina.
The following must be true for your alimony payments to qualify as tax deductible according to the IRS:
- Your divorce agreement was before 2019
- You and your spouse live in separate households
- Payments are in cash (including checks and money orders)
- Payments are only for alimony (not child support, etc.)
Do: Consider How Your Ex-spouse’s Living Situation Affects Alimony
South Carolina law allows termination of alimony if the supported spouse lives with another person in a romantic relationship for 90 or more days consecutively, which is known as cohabitation. When cohabitation becomes a factor, you can request a review of periodic, reimbursement, or rehabilitative alimony.
You should also note that you can still establish cohabitation if your ex-spouse periodically separates from the other person with the intent of avoiding the 90-day requirement.
Do: Identify Events That Allow You to Modify or Terminate Alimony
The following are events that enable you to modify or terminate certain types of alimony:
- Remarriage or continued cohabitation of ex-spouse
- Change in circumstances (job loss, pay reduction, etc.)
- Death of the supported spouse
However, you can only request changes due to the above for rehabilitative, periodic, or separate maintenance alimony. You owe financial support because your ex-spouse can’t support themselves at that time. If they start a serious relationship, such as marriage or cohabitation, or pass away, the supported spouse no longer needs financial assistance.
Changes in circumstances, including the supported spouse not attending school or losing a job, can also lead to alimony modification.
The rules are different for reimbursement and lump sum alimony. Reimbursement alimony ends when the supported spouse remarries or cohabitates with another person, but you can’t make modifications to the payments otherwise.
You also can’t modify lump sum alimony because the judge awarded a set amount of money to your ex-spouse. You’ll have to negotiate changes with your ex-spouse and agree on a new contract if they’re willing.
Don’t: Fail to Pay Alimony
Failing to pay your alimony payments to your ex-spouse can have serious consequences. When you fall behind on alimony, the court will issue a “Rule to Show Cause,” and you must appear in court to explain why you’re missing payments. When you aren’t paying alimony, you’re in contempt of court for violating orders.
If the judge finds you guilty, the court can force alimony compliance by withholding income and you could face fines, community service hours, or jail time. The judge might also require you to provide some type of security, such as a life insurance policy, as collateral to show you can provide spouse support payments in the future.
Don’t: Forget Your Estate Plan
If you pass away and don’t have a will in place, your ex-spouse might have a claim against your estate for alimony. You can establish a will to ensure your wishes regarding your assets are followed after your death.
Don’t: Rule Out Retirement Because of Alimony
You might be concerned about retiring from work if you still have alimony payments because your income might not support your needs and your ex-spouse’s alimony. In that case, you can request a hearing to determine whether your retirement constitutes a change in alimony.
However, you can’t just enter retirement to avoid paying alimony. The court will consider several factors before approving a modification, such as whether the retirement is voluntary or mandatory, whether retirement will cause a decrease in your income, and any health conditions you have.
Consult an Experienced Family Law Attorney in South Carolina
If you are an alimony payor in South Carolina, our family law attorneys at Fender Law Firm LLC can provide comprehensive legal advice to help your divorce proceedings go smoothly. We can stand up for you in court, or we can provide family mediation services for unbiased moderation while you and your spouse negotiate alimony and other issues.
To schedule a consultation with an attorney, call us at 843-379-4888.