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Can a deserting (without good cause) spouse get alimony?

How many family law attorneys are aware of S.C. Code § 63-5-20?  In my experience not many. With the proper fact pattern that statute might be revived to remarkable effect.

Back in the good ole days (ironic affect intended) only wives could get alimony, divorce could only be granted for fault (until the late 1940’s South Carolina didn’t allow divorce period) and folks stuck in bad but tolerable marriages were expected to stick it out.  And there was a statute governing alimony, which is now § 63-5-20, and now reads:

Obligation to support.

(A) Any able-bodied person capable of earning a livelihood who shall, without just cause or excuse, abandon or fail to provide reasonable support to his or her spouse or to his or her minor unmarried legitimate or illegitimate child dependent upon him or her shall be deemed guilty of a misdemeanor and upon conviction shall be imprisoned for a term of not exceeding one year or be fined not less than three hundred dollars nor more than one thousand five hundred dollars, or both, in the discretion of the circuit court.  A husband or wife abandoned by his or her spouse is not liable for the support of the abandoning spouse until such spouse offers to return unless the misconduct of the husband or wife justified the abandonment.  If a fine be imposed the circuit court may, in its discretion, order that a portion of the fine be paid to a proper and suitable person or agency for the maintenance and support of the defendant’s spouse or minor unmarried legitimate or illegitimate child.  As used in this section “reasonable support” means an amount of financial assistance which, when combined with the support the member is reasonably capable of providing for himself or herself, will provide a living standard for the member substantially equal to that of the person owing the duty to support.  It includes both usual and unusual necessities.

(B) Any person who fails to receive the support required by this section may petition to a circuit court of competent jurisdiction for a rule to show cause why the obligated person should not be required to provide such support and after proper service and hearing the circuit court shall in all appropriate cases order such support to be paid.  Any such petition shall specify the amount of support required.  Compliance with the circuit court order shall bar prosecution under the provisions of subsection (A) of this section.

There are elements of this statute that are clearly archaic.   Subsection B refers to petitioning the circuit court for enforcement because this code section predates the establishment of a uniform statewide Family Court by statute in 1976.  This section also predates the establishment, via constitutional amendment, of no-fault divorce in South Carolina in 1979.  It predates the enactment in 1990 of the current alimony statute, S.C. Code § 20-3-130.  The precursor to Section § 63-5-20 used to be even more archaic.  The 1912 version as cited in State v. Stone, 111 S.C. 496, 98 S.E. 333 (1919), makes alimony the sole obligation of husbands:

Any able-bodied man who shall, without just cause or excuse, abandon or fail to supply the actual necessities of life to his wife or to his minor, unmarried child or children dependent upon him, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned for a term not exceeding one year, or be liable to a fine not exceeding two hundred dollars: Provided, that if he, either before or after conviction, shall give bond, with one or more sureties, approved by the clerk of the court, in the sum of not less than $300, conditioned upon his supporting and maintaining his said wife or said minor unmarried child or children, he shall not be imprisoned or the fine imposed until the condition of said bond is broken.

Legislative history of the current code section does not indicate when this statute became gender neutral.  It also doesn’t indicate when this consequential language was added:

A husband or wife abandoned by his or her spouse is not liable for the support of the abandoning spouse until such spouse offers to return unless the misconduct of the husband or wife justified the abandonment.

However that language offers the argument that, despite the subsequent adoption of Section 20-3-130, and despite the adoption of no fault divorce, a spouse who abandons without good cause is not entitled to alimony.  I’ve been represented husbands in cases were we intended to raise the issue at trial but, to-date, they have always settled before trial.  However when one can argue that the supported spouse abandoned the marriage without cause, one can also argue that  § 63-5-20 bars that spouse from alimony.

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