Blog

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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Greg, these are basic principles that I learned from Mr. Dreher in domestic relations during the fall of 1967 as USC School of Law before most of your audience was born, when wife had a right to dower and marital fault was a bar to custody. I have lost this case in the court of common pleas, in the family court, and in the court of general sessions during the dark ages when nonsupport was a criminal case.

    Once upon a time, probably around 1971 or 1972, Bob Carpenter and I represented a defendant in criminal nonsuport case. I asked the magic question: “Are you willing to support your wife?” My client gave the magic answer: “Yes sir, I am.” Bob and I thought that would be the end of the case. It was, but not the way we thought. The late Judge Robert W. Hayes said, in the presence of the jury, “In that case why don’t you plead your client guilty?” Somehow, Bob managed to push me out of the courtroom with one hand while guiding the client with his other hand to the bar to plead guilty.

  • Roy Stuckey

    Greg, This is one of many pieces of legislation that are no longer meaningful. As you know, it is well-established in case law that a spouse who abandons the marital home without good cause is not barred from seeking spousal support. This issue is discussed in the 4th edition of Marital Litigation in South Carolina at pages 235-37.
    The statute is mentioned in footnote 5 on page 235. It has never been cited as a reason for denying support.

  • Gregory Forman

    Roy,

    No dispute that recent case law does not bar an abandoning spouse from alimony. However no recent case law cites § 63-5-20 on this issue (that statute was last cited on this issue in the early 1960’s).

    It is my understanding of South Carolina Family Law that statutory law has priority over what might be labelled the “common law” of judicial interpretation and space filling. I would like to see some intrepid attorney argue that § 63-5-20 still applies and bars an abandoning-without-good-cause spouse from receiving alimony.

  • Roy Stuckey

    Greg,

    The key language is in a criminal statute. It might be enough to avoid a criminal conviction for nonsupport, but I doubt that you will find a Family Court judge who is gullible enough to fall for the argument that desertion is a bar to spousal support. If you do, you have also found a family court judge who does not mind being reversed on appeal. There are many factors to consider in deciding whether to award spousal support. Whether a deserting spouse had just cause to leave is one of those factors, but the fact of desertion alone is not an absolute bar. One must weigh the equities.

  • Gregory Forman

    Roy,

    Title 63 is the children’s code, not the criminal code. This statute was frequently invoked prior to 1965 to deny wives alimony. I cannot see our appellate courts simply ignoring this statute if its application is raised at trial and on appeal.

    If I ever do the research and determine that the highlighted language was added to 63-5-20 after the enactment of 20-3-130, I think the appellate courts would be extremely unlikely to determine that the limitation isn’t applicable.

    I think the real issue was whether the adoption of 20-3-130 in 1990 implicitly overrides the highlighted portion of 63-5-20. If it doesn’t, then I would contend that 63-5-20 acts as a limitation of 20-3-130. Given that the two statutes can be harmonized (63-5-20 doesn’t contradict 20-3-130 but merely places constraints on its use) I think that even the implicit override argument is weak.

    63-5-20 may be archaic in light of contemporary alimony jurisprudence and the adoption of no-fault divorce but the adultery bar to alimony is similarly archaic and I don’t see any family court failing to apply that bar merely because it’s based on arguably outdated notions of female chastity.

    I think the courts simply don’t apply 63-5-20 because no one ever raises the issue. The blog was designed to show my colleagues that this statute exists and has potential application.

Archives by Date

Archives by Category

Multiple Category Search

Search Type