Supreme Court holds that waiver of adultery’s bar to alimony does not violate public policy

The South Carolina Supreme Court decision in Eason v. Eason384 S.C. 473, 682 S.E.2d 804 (2009) corrects an obvious injustice, holding that a written agreement between separated spouses to not use adultery as a bar to entitlement to alimony is enforceable and not a violation of public policy.  Given that South Carolina statutory law already provides that alimony may be awarded to a spouse who commits adultery if a formal written property or marital settlement agreement has already been signed (S.C. Code Ann. § 20-3-130(A)), one might have thought that a pendente lite agreement “that neither party will use adultery as a bar to alimony” would protect Ms. Eason’s right to alimony if she subsequently committed adultery.  However the family court judge held otherwise, finding the agreement was an unenforceable contract and in contravention of public policy.

The irony is that it was Mr. Eason who wanted the agreement as issue.  He had his own attorney draft the agreement so that he could move in with his girlfriend while the parties litigated their divorce.  However, when Ms. Eason sought alimony at trial he argued that their agreement violated public policy and the family court agreed.  The Supreme Court reversed and remanded the matter back to the family court to determine the proper alimony award for Ms. Eason.

Given that South Carolina law already limits adultery’s bar to alimony when the parties have a formal property or marital settlement agreement, it is unclear what public policy was being violated by the Easons’ agreement.  The family court’s ruling seems particularly harsh in that it was Mr. Eason who wanted the agreement.  The law expects folks to live up to their agreements; it’s not surprising that the Supreme Court wouldn’t allow Mr. Eason to weasel out of his.


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