As divorce lawyers in Mount Pleasant, some clients ask us to help them reduce or terminate their alimony payments in South Carolina. In South Carolina, some alimony payments can last for a lifetime because the most common form of alimony awarded by the court is permanent alimony called “periodic alimony.” Although this type of alimony is permanent, there are four situations why such alimony may stop or may be reduced in South Carolina: (1) death of either ex-spouse; (2) remarriage of the supported spouse; (3) continued cohabitation of the supported spouse; or (4) a substantial change in circumstances such as retirement, poor medical health, or loss of income for either ex-spouse.
1. Death of an Ex-Spouse Stops Alimony in South Carolina
An alimony obligation does not pass to the heirs or estate of the paying party (sometimes called the “obligor” or “supporting spouse”), and an alimony benefit does not pass to the heirs or estate of the receiving party (sometimes called the “obligee” or “supported spouse”). The alimony obligation terminates upon the death of either ex-spouse.
2. Remarriage of an Ex-Spouse Stops Alimony in South Carolina
If the ex-spouse receiving alimony remarries, then alimony automatically terminates.
3. Continued Cohabitation of the Supported Spouse Stops Alimony in South Carolina
If the obligee continuously cohabitates with a person with whom they are romantically involved for ninety or more consecutive days, the court can terminate alimony. If the two periodically separate to circumvent the ninety-day requirement, a court can still find that continuous cohabitation has occurred.
4. A Substantial Change in Circumstances May Stop or Reduce Alimony in South Carolina
Under South Carolina Code Section 20-3-170(A), a person paying alimony can petition the family court to reduce their alimony payments if there is a “substantial” or “material” change in the parties’ circumstances or finances. The change must have been unanticipated at the time of the original agreement or an award of alimony by the court. The party seeking modification has the burden to show by a preponderance of the evidence that the unforeseen change has occurred.
Examples of Substantial Changes in Circumstances in South Carolina:
- Increased or Decreased Income of the Supporting or Supported Spouse – If either spouse is laid off or their business fails, a judge may reduce or increase the alimony obligation.
- A Decline in Health of the Supporting or Supported Spouse – A decline in health by either ex-spouse can be considered by a family court judge if it results in decreased income, decreased net worth, or increased expenses.
- A Change in the Living Situation of the Supported Spouse – A change in the living situation of a supported spouse may be grounds to reduce alimony. One example could be the spouse beginning to live with someone else, even if not a romantic partner, so that the person’s financial needs are reduced.
- An Inheritance by the Supported Spouse – In one case, the South Carolina Court of Appeals declined to terminate an alimony obligation because the paying spouse failed to prove that the supported spouse received income from her inheritance. Based upon the discussion in the court’s opinion, however, it seems that a court can reduce or terminate alimony if the supported spouse inherits enough money.
- Original divorce decree contemplates a change – Sometimes, the original agreement approved by a court during the divorce will consider a future event for alimony recalculation, such as children emancipating or property being sold. It is imperative that the original decree and agreement be reviewed before filing to reduce alimony.
Examples of What May Not be Substantial Changes in Circumstances in South Carolina:
- Homemaker Returning to Work – When a homemaker is raising a small child, it might be contemplated by the parties that he or she will return to work in the next couple of years. In one Court of Appeals case, the court found that the Wife’s increase in income was contemplated by the parties at the time of trial so a reduction in alimony was not warranted.
- Brief or Temporary Decrease in Income – If a paying spouse has a variable income and shows a significant decrease one year, the court may still average a few years together instead of using only the recent down year.
- When a Future Reduction in Income was Foreseen at the Time of Alimony Agreement or Court Award – If the receiving spouse can show that the decrease in income was contemplated when the parties reached their agreement on alimony, a court might be restricted in its ability to reduce the alimony when the reduction later occurs.
- Normal Appreciation of Assets – If a supported spouse has assets that appreciate over time, and the appreciation is not extraordinary, the court won’t likely use this fact to reduce alimony.
- Unwarranted Debts – If a supporting spouse’s financial situation becomes strained because he or she accumulated debt the court feels was unwarranted, that spouse will not likely receive relief from the court regarding an alimony reduction. For example, if a supporting spouse claims his or her income decreased but still finds a way to spend large amounts of money on luxury items, a court might consider this fact when deciding whether to reduce alimony.
- Health Issues that Do Not Affect Finances – If a spouse experiences serious medical problems such as heart attacks but his or her income is higher than it was at the time of the initial award, a judge is not likely to reduce the alimony and may even have the ability to increase it.
- Speculative Change in Circumstances – If the effect of a change in circumstances is only speculative, it may be better to wait until the effect is known before filing the modification case.
Voluntary Reduction of Income
Cases where a supporting spouse voluntarily reduces income are challenging to assess. There are countless situations where a person may justifiably accept a reduction in income. Some examples include:
- To move closer to the children;
- To move closer to a sick relative to substantially assist in that relative’s care;
- To accept a position that has lower pay now with the expectation it will yield much greater income in the long run; or
- To take a break from full-time employment to go to school with the expectation it will yield much greater income in the long run.
In cases like these, the court will have a lot of discretion to look at the entire picture for both the ex-husband and the ex-wife and determine whether a reduction is appropriate. The uncertainty of what a court could do can make it difficult to accept the lower position and risk not being able to stay current with an alimony obligation. The supporting spouse should also know that if a court grants a reduction now so that the ex-spouse can increase his or her earning potential down the road, there is a good chance the court will increase the alimony when the better-earning potential is reached in the future.
Retirement Can Impact Alimony Payments in South Carolina
This one technically falls under the “Change in Circumstances” heading, but we decided to call it out because it is a situation that will eventually come into play in almost every case, and it’s one that supporting and supported spouses must plan for years in advance. When a court considers whether to reduce or terminate alimony based upon retirement, the court must consider:
- whether retirement was contemplated when alimony was awarded;
- the age of the supporting spouse;
- the health of the supporting spouse;
- whether the retirement is mandatory or voluntary;
- whether retirement would result in a decrease in the supporting spouse’s income; and
- any other factors the court sees fit.
Statutory Factors the Court Considers in Reducing Alimony in South Carolina
In a reduction of alimony case, the court will still consider the factors proscribed by S.C. Code Ann. Section 20-3-130(C) as if it were setting an initial alimony award. These factors are:
- duration of the marriage;
- the physical and emotional health of the parties;
- educational background of the parties;
- employment history and earning potential of the parties;
- standard of living established during the marriage;
- current and reasonably anticipated earnings of the parties;
- current and reasonably anticipated expenses and needs of the parties;
- marital and non-marital properties of the parties;
- custody of children;
- marital misconduct or fault;
- tax consequences;
- prior support obligations; and
- other factors the court considers relevant.
Retroactive Reduction of Alimony in South Carolina
A court is not likely to grant a retroactive reduction in alimony payments that are or were due prior to the filing date of the modification case. It is important to file the case and establish the filing date to gain the maximum benefit of any reduction. A person asking for a reduction or termination in alimony should also ask for any life insurance obligation to also be modified.
Non-Modifiable Alimony in South Carolina
While courts do not order this, some agreements provide for non-modifiable alimony. This has potential pros and cons for both parties depending on how circumstances may change. It is important for the attorney to review the prior agreement prior to filing a case to reduce or terminate alimony to ensure that there is no provision that prohibits a modification case.
Contact Our Divorce Lawyers for a Consultation
Our divorce lawyers can help with a request to stop or reduce alimony or defend against modification of alimony claims. If you are considering whether you are entitled to a reduction or termination of alimony, or if your ex-spouse has filed for a reduction or termination of alimony, call the lawyers at Futeral & Nelson for a case review.