South Carolina is not a community property state (in community property states all marital property is divided equally). However, in practice, with long-term marriages the family courts start with a presumption of a 50/50 division of marital assets and adjust that division slightly based on factors such as fault or third-party contributions to the marital estate. See Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (Ct.App.2006) and Avery v. Avery, 370 S.C. 304, 634 S.E.2d 668 (Ct. App. 2006). Doe explained this rationale as follows:
While there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage… Case law seems to bear out this trend…
We recognize that in many long-term marriages, one spouse becomes the primary breadwinner while the other spouse makes less or even no money in order to have the flexibility to keep the household running smoothly. This arrangement is agreed upon, often implicitly, among the parties, and it would be unfair to the spouse who undertook household duties for the family court to apportion the marital estate solely based on the parties’ direct financial contributions…
This equal division of marital assets can, of course, be altered in favor of one spouse depending on the circumstances of each case. Here, for instance, Wife’s adultery caused the breakup of the marriage, an appropriate consideration for equitable apportionment. However, we have consistently held that fault does not justify a severe penalty.
There are clearly flaws in this approach to equitable distribution. Why should the law treat the “homemaker” services of a high-income wage-earner as being so much more valuable that the “homemaker” services of a low-income wage-earner? Consider two circumstances. In one a frugal homemaker has managed the household budget of a limited wage-earner to accumulate a $100,000.00 marital estate. In the other, a spendthrift homemaker mismanages the household of a high wage-earner to accumulate a $100,000.00 marital estate. In theory all four spouses should walk away from their marriage with $50,000.00. But is the contribution of the frugal homemaker and the spendthrift homemaker really equal? Is the contribution of the high wage-earner and the limited wage-earner really equal? More importantly are the contributions of the spouses within each marriage really equal? While the Court of Appeals might point to an “implicit agreement” between spouses on the division of labor as justifying a presumption of an equal division of the marital estate, many spouses do not see that division as equal; in fact, it is often one spouse’s perception that the division of labor has been extremely unequal that prompts them to seek a divorce.
However, the logic that underpins the equal division of the marital estate completely breaks down (or is frankly ignored) when it comes to awarding alimony. For if the wage-earner and homemaker contributions are presumed equal (as they are for equitable distribution in long-term marriages), then it logically follows that the loss of the homemaker services is equal to the loss of the wage-earner’s wages. Or, as the math in this title indicates, if x (value of homemaker’s services) equals y (value of wage-earner’s income) then -x=-y. After spouses separate the homemaker has lost use of the wage-earner’s income and the wage-earner has lost use of the homemaker’s homemaking. Under the logic of equitable distribution both have lost something of equal value. Why then the need for alimony to equalize the parties’ post-separation lifestyle?
I do not argue that homemaker spouses are not entitled an equitable portion of the marital estate; homemaker services clearly (if indirectly) lead to the accumulation of the wealth that gives rise to the marital estate. Nor do I argue that homemaker spouses who receive one-half of the marital estate should not be awarded alimony. However, I do believe that the current fiction being used to justify an equal division of the marital estate in a long-term marriage logically undercuts any justification for alimony.
The remedy I would propose is two-fold. First, the courts need to get away from the presumption of an equal division of the marital estate in a long-term marriage and actually analyze how the efforts of each spouse enabled the marital estate to accumulate. A frugal and supportive homemaker should receive a higher portion of the marital estate than a similar homemaker who was less frugal and less supportive of the wage-earner’s career. A high wage-earner should receive a greater percentage of the marital estate than a similar wage-earner who made much less money. Second, in awarding alimony the court should be cognizant that the loss of homemaker services is an actual loss for the wage-earner, which the wage-earner will either need money or his or her own labor to obtain. An alimony award that equalizes the parties’ income will not equalize the parties’ lifestyles (homemaking requires less effort with the loss of the spouse; the wage-earner now needs to continue wage earning while doing his or her own homemaking) but will leave actually the homemaker much better off than the wage-earner.
There are two types of injustices with the current system. The first injustice is that of the caring and frugal homemaker married to an unambitious, diffident or spendthrift wage-earner. That homemaker leaves the marriage with one-half of a small marital estate (the diffident/spendthrift wage-earner’s efforts allowed for minimal wealth accumulation) and little or no alimony (the wage-earner does not earn enough to pay sizable alimony). The second injustice is of the high wage-earner married to the diffident, spendthrift or lazy homemaker. Not only did that high wage-earner’s efforts lead to the accumulation of substantial wealth (of which the homemaker now obtains half) but that wage-earner is now required to continue his or her great efforts to support a unemployed ex-homemaker. Both such spouses rightly perceive their plight as an injustice. The family law fictions we create to justify equitable distribution and alimony are not going to convince them that they are mistaken because they are not.