When going through a divorce, one of the items that may come up is Spousal Support. Spousal support is also known as “alimony”. In some cases, alimony or spousal support may not be awarded, however there are many questions around how to determine the support amount if needed.
Spousal support is money that one spouse is ordered to pay for the support of the other spouse when they are no longer living together. 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 maintenance and support, and alimony is what it is called in divorce actions. The Family Court is required to allocate support between spousal support and child support.
There are six types of spousal support that may awarded by the Family Court: (1) permanent periodic alimony; (2) lump sum alimony; (3) rehabilitative alimony; (4) reimbursement alimony; (5) separate maintenance and support; and (6) such other form of spousal support as the Court may consider just and appropriate. The Family Court has the authority to award both temporary and permanent support.
“Permanent Periodic Alimony” is the most commonly awarded form of alimony in South Carolina, intended to restore the dependant spouse to the standard of living enjoyed during the marriage. Permanent periodic alimony usually terminates on the remarriage or cohabitation of the supported spouse or upon the death of either spouse. Permanent periodic alimony can be terminated or modified by the Family Court if there is a substantial change in circumstances that occurs in the future.
“Lump Sum Alimony” is a finite total sum to be paid in one installment or periodically over a period of time. Lump sum alimony is usually awarded only in exceptional circumstances and for compelling reasons, such as where it appears that the payor may not live up to regular alimony obligations. When awarded, lump sum alimony is non-modifiable and terminates only upon the death of the supported spouse. It does not terminate upon remarriage or cohabitation of the supported spouse.
“Rehabilitative Alimony” provides support for the dependent spouse to allow for additional training or education to help the supported spouse achieve his or her income potential and to enable the supported spouse to become self-supporting. When rehabilitative alimony is awarded, it is terminable upon the remarriage or cohabitation of the supported spouse, the death of either spouse, or the occurrence of a specific event to occur in the future. Rehabilitative alimony is also modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse pay the rehabilitative alimony. Rehabilitative alimony terminates on the remarriage or cohabitation of the supported spouse, or upon the death of either spouse, but it is not terminable or modifiable based upon a change circumstances in the future.
“Separate Maintenance and Support” is simply what spousal support is called when it awarded in a separate maintenance action rather than a divorce action.
“Other forms of spousal support” may be awarded by the Family Court. By definition this includes provisions for housing, transportation, and the like.
The type and amount of spousal support to be awarded by the Family Court are largely in the total discretion of the Family Court. However, the law requires that the Family Court consider the following factors when making those determinations:
- 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;
- The physical and emotional conditions of each spouse;
- The educational background of each spouse, together with the need of each spouse for additional training or education in order to achieve that spouse’s income potential;
- The employment history and earning potential of each spouse;
- The standard of living established during the marriage;
- The current and reasonably anticipated earnings of both spouses;
- The current and reasonably anticipated expenses and needs of both spouses;
- The marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- Custody of the children, particularly where conditions or circumstances rendered appropriate that the custodian not be required to seek employment outside the home, or where employment must be of a limited nature;
- Marital misconduct or fault of either or both parties (with exceptions);
- The tax consequences to each party as a result of the particular form of support awarded;
- The existence and extent of any support obligation from a prior marriage or any other reason by either party; and
- Such other factors the Court considers relevant.
Under South Carolina Law adultery which has not been condoned is an absolute bar to alimony, unless it occurs after a Marital Settlement Agreement is reached or the Court enters a Decree of Separate Maintenance, whichever first occurs.
The general rule is that alimony and separate support and maintenance payments are taxed to the recipient and deducted by the payor, if the payments meet criteria set by the Internal Revenue Service. The most important criteria are that the obligation to pay spousal support must by pursuant to a written instrument, payments must be made in cash, the payor and payee may not be members of the same household at the time of the payment, and the obligation must terminate upon the death or remarriage of the support spouse. The Internal Revenue Service, as well as the South Carolina divorce statutes, allows the parties or the Family Court to “private Order” the deductibility and taxability of payments..
Child support is different than spousal support and the two should not be confused. Both parents have a legal responsibility to provide financial support for their children. Child support that is given to a spouse is typically taken into consideration when determining the appropriate amount of spousal support.
Spousal support can be paid to the awarded spouse in different ways, based upon the divorce agreement. Some employers offer an automatic payroll deduction for child support or spousal support. Typically, the court will order payments to be paid either through the clerk of court (along with a collection fee) or to the party directly.
Do you need help with your divorce or spousal support case?
Contact Harden Law today for a consultation.