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New statute codifies law on alimony modification upon retirement

One of my blog’s readers posted a comment linking a new statute that codifies the law on modifying alimony upon the supporting spouse’s retirement.  South Carolina House bill 4738, which went into effect June 18, 2012, adds subsection B to S.C. Code § 20-3-170.  This new subsection reads:

Retirement by the supporting spouse is sufficient grounds to warrant a hearing, if so moved by a party, to evaluate whether there has been a change of circumstances for alimony.  The court shall consider the following factors:

(1) whether retirement was contemplated when alimony was awarded;

(2) the age of the supporting spouse;

(3) the health of the supporting spouse;

(4) whether the retirement is mandatory or voluntary;

(5) whether retirement would result in a decrease in the supporting spouse’s income; and

(6) any other factors the court sees fit.

This subsection doesn’t appear to change the criteria for modifying alimony upon a supporting spouse’s retirement.  Age, health, income and earning capacity are already codified factors for setting or modifying alimony and “whether retirement was contemplated when alimony was awarded” goes to whether retirement was an anticipated change of circumstance when alimony was previously set.  It will be interesting to see how the family court applies this subsection but this new subsection doesn’t limit the family court’s discretion on whether and how much to modify alimony when the supporting spouse retires.

Both the appellate courts and the legislature seem unwilling or unable to provide the types of limits on the family court’s discretion that would provide ex-spouses more certainty and alimony awards more uniformity.  This is consistent with the legislature’s failure to create alimony guidelines (which are slowly being adopted in other states) or pass the “short-term marriage alimony” provision proposed approximately a decade ago that would have allowed the family court to award alimony of limited duration for marriages of under a decade even if the supported spouse was incapable of rehabilitation.

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