South Carolina’s alimony lottery

I had a recent phone conference with a New Jersey attorney as we discussed the advantages of disadvantages of fighting an alimony case in South Carolina versus fighting it in New Jersey.  As I discussed the factors that the South Carolina courts might examine in deciding alimony, New Jersey counsel kept stating incredulously: “they’d really consider that?”  I get a similar response whenever I discuss South Carolina’s alimony structure with out-of-state counsel.  Imagine the worst aspects of a lottery combined with roulette and you have a pretty good mental image of how South Carolina decides alimony.

One thing is certain: commit adultery while the marriage is breaking up but prior to the execution of a formal separation agreement or final order deciding alimony and the court is forbidden to award you alimony. See S.C. Code Ann. § 20-3-130.  Outside of the adultery bar, a spouse can engage in reprehensible conduct and still receive alimony (though such conduct makes the award of alimony less likely).  I have seen cases in which wives [it’s almost always wives who receive alimony; in 16 years of practice, I have only seen three cases in which husbands received alimony, none of them receiving permanent alimony] have received alimony despite being incapacitated by alcohol or prescription drugs or so lazy that even they couldn’t explain what they did with their days.  On the other hand, I have seen cases in which some minor misconduct by the wife was used to justify greatly reduced alimony or a denial of permanent alimony.  I have seen cases in which after a long term marriage an innocent wife was left with a much lesser lifestyle than her skirt-chasing husband; I have seen cases in which an ex-husband was left working himself to exhaustion to pay alimony to a wife who had no job, no children to care for, and apparently no incentive to work.

The adultery bar to alimony leads to great injustice: a husband can have sex with his wife’s sister, her brother, and half the College of Charleston cheerleading squad, and then leave his wife to shack-up with the wife’s best friend, while clearing out the family bank account, but let the wife have a sexual relationship while the parties engage in protracted litigation over the divorce and she’s not getting alimony.  Period.  I actually had a client lose her alimony claim for having a sexual encounter the weekend before trial when the parties had been separated for four years, the litigation had gone on for two years, and the husband was a serial adulterer.  Opposing counsel and I were only $50.00 a month apart on settling alimony with opposing counsel indicating that her client would probably accept my client’s alimony demand.  I figure that one sexual encounter cost my client over $100,000.00 (she had been repeatedly warned not to commit adultery).  I cannot conceive of a sexual encounter that could be worth $100,000.00, but perhaps I have a limited imagination.

The situation can be even worse for temporary alimony awards, in which the court bases its temporary alimony award upon a review of affidavits and in which a spouse who has limited concern for long-term consequences has the ability to lard the affidavits with inflammatory and unprovable allegations of horrific conduct by his or her spouse.  Like I noted above: imagine the worst aspects of a lottery and a roulette wheel.

Given the tremendous potential variability in alimony awards, and the fact that adultery, and only adultery, creates an absolute bar of alimony, numerous family law practitioners believe there has to be a better way for South Carolina to decide alimony.  Short of creating a formula similar to the child support guidelines I am not sure what this better way would be.  It is clear to most South Carolina family law practitioners that the adultery bar to alimony causes great injustice and should be abolished.  However, this bar is imposed through legislation, not through judicial case law, and how could one ever convince a South Carolina legislator to vote for something that reduces the “punishment” for adultery?  It’s doubtful this bar to alimony will be abolished in my lifetime.

Some creative, mostly feminist, family law attorneys have tried to argue that the adultery bar to alimony is unconstitutional because it disproportionately impacts women: the female gender is the one overwhelmingly denied alimony due to their adultery.  The wife raised this issue in McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998) but the Court of Appeals didn’t need to address it because it agreed with the family court that husband had not met his burden of proving wife committed adultery, and therefore found she was not barred by statute from receiving alimony.

While I sympathize with these feminist’s constitutional challenge to South Carolina’s adultery bar to alimony, I don’t think they’ve thought through the logical consequences of their argument.  For if the adultery bar to alimony is unconstitutional due to its disproportionate impact upon women, the alimony statute is equally unconstitutional due to its disproportionate impact upon men.  In fact, both statutes are disproportionate in the exact same manner: it’s only because the overwhelming percentage of people paying alimony are men that the adultery bar to alimony overwhelming impacts women.  The day after our appellate courts find that the adultery bar to alimony is unconstitutional because of its “unfair” impact upon women, I will begin arguing that the alimony statute is unconstitutional because of its “unfair” impact upon men.  If this ever happens, and I highly doubt it ever will, it will be hugely entertaining–a least to me–to observe the family and appellate courts comport themselves like pretzels to explain why alimony isn’t unconstitutional if the adultery bar to alimony is.

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