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Does a short marriage justify the award of rehabilitative alimony rather than permanent alimony?

Most family law attorneys and divorcing parties seem to believe a short marriage suggests an award of rehabilitative rather than permanent alimony.  I’m not so sure.  Next month the Court of Appeals will hear oral argument in the appeal of Karen Allen-Hines v. Franklin Hines.  One of the issues on appeal is whether the family court erred in awarding wife rehabilitative alimony instead of permanent periodic alimony.  If the Court of Appeals affirms it will be the first published opinion affirming rehabilitative alimony over the supported spouse’s objection in over 23 years.

Under South Carolina law, permanent alimony is the preferred form of alimony and rehabilitative alimony requires “special circumstances.” As noted in Jenkins v. Jenkins, 345 S.C. 88, 545 S.E.2d 531, 535 (Ct.App. 2001) (citations omitted):

Although rehabilitative alimony may be an appropriate form of spousal support in some cases, permanent periodic alimony is favored in South Carolina.  If a claim for alimony is well-founded, the law favors the award of permanent periodic alimony.   Rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference for permanent periodic support.  The purpose of rehabilitative alimony is to encourage a dependent spouse to become self-supporting after a divorce.  It permits former spouses to develop their own lives free from obligations to each other.  However, it should be approved only in exceptional circumstances, in part, because it seldom suffices to maintain the level of support the dependent spouse enjoyed as an incident to the marriage.

On August 29, 1988, the Court of Appeals affirmed an award of one year rehabilitative alimony over wife’s objection in Bryan v. Bryan, 296 S.C. 305, 372 S.E.2d 116, 119 (Ct.App. 1988).  This is the last reported South Carolina appellate opinion to do so.

Since then the our appellate courts have repeatedly reversed awards of rehabilitative alimony, often remanding for a determination of permanent alimony.  See Jenkins, supra (reversing rehabilitative alimony award and remanding for award of permanent alimony); Belton v. Belton, 325 S.C. 456, 481 S.E.2d 174, 176 (Ct.App. 1997) (reversing rehabilitative alimony award and remanding for award of permanent alimony); Carroll v. Carroll, 309 S.C. 22, 419 S.E.2d 801, 802 (Ct.App. 1992) (reversing award of nine months of alimony at rate of $800.00 per month because trial court didn’t make “finding[s] of special circumstances” to justify either a lump sum or rehabilitative alimony award); Crawford v. Crawford, 301 S.C. 476, 392 S.E.2d 675, 680 (Ct.App. 1990) (reversing and remanding award of rehabilitative alimony where no evidence that wife would be able to be self-sufficient at the end of the three-year rehabilitation period); Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107,114 (Ct.App. 1988) (reversing rehabilitative alimony award and remanding for award of permanent alimony).

During this time, the appellate courts have further rejected supporting spouses’ claims that the court should have only awarded rehabilitative alimony. Canady v. Canady, 296 S.C. 521, 374 S.E.2d 502, 504 (Ct.App. 1988) (rejecting husband’s claim that court should have only awarded rehabilitative alimony in eighteen-year marriage).  In the two reported decisions since 1988 in which the appellate courts have affirmed rehabilitative alimony it was because the supported spouse did not challenge the award. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610, 613 (Ct.App. 2002) (family court awards rehabilitative alimony of $1,000.00 per month for twelve months in six year marriage where husband committed adultery; alimony award not challenged on appeal); C.A.H. v. L.H., 315 S.C. 389, 434 S.E.2d 268, 269 (1993) (affirming “$150.00 per month as rehabilitative alimony for a period of one year” over husband’s objection where “Wife sought ‘relocation alimony’ for the expenses involved in having to quickly move out of the marital home upon her discovery of the sexual abuse.”).

The Bryan opinion is 23 years old and rehabilitative alimony was affirmed, in part, because wife testified at trial “she needed between $2500 and $3000 a month for two years to get her back on her feet,” thus indicating that rehabilitative alimony was sufficient.  The last reported case to reverse an award of permanent alimony and remand for consideration of whether rehabilitative alimony is more appropriate was Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413, 417 (Ct.App. 1987).

No doubt there are cases in which a supported spouse needs a few years to obtain further education, get retrained into his or her past profession, or wait for the children to become old enough to resume full-time employment.  In those cases rehabilitative alimony may still be appropriate.  However, I am curious as to whether the Hines appeal will indicate that rehabilitative alimony is appropriate merely because the marriage was short term.  Until some appellate court affirms a rehabilitative alimony award based merely upon the brevity of the marriage, I think the general assumption about short marriages leading to rehabilitative alimony may be mistaken.

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