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Equitable distribution when spouses rarely lived together

The December 5, 2012 Court of Appeals opinion in Jenkins v. Jenkins, 401 S.C. 191, 736 S.E.2d 392 (Ct. App. 2012) addresses, without providing guidance, the interesting topic of how you equitably divide marital property when the spouses often lived apart.

The Jenkinses only lived together for only approximately three and a half years of their sixteen-year marriage. During this time Husband was in the military while Wife moved around for employment and educational opportunities. Shortly after their daughter’s birth in June 1994, the parties sent the child to live with Wife’s mother.  Shortly after that the parties separated. From 1994 through 2006 (when Wife’s mother died), their daughter sometimes lived with Wife alone but generally lived with either Wife’s mother alone or with Wife and Wife’s mother together.  Husband retired from the military on January 1, 2009. Upon his retirement, he began to receive $1,878 per month in military retirement benefits.  Husband had not resumed employment at the time of the final hearing.

At trial, in determining Wife’s entitlement to Husband’s military retirement benefits, the family court found Wife was only entitled to the portion of his benefits that accrued during the three and a half years the parties lived together.  It found approximately 17% of his retirement was marital (3.5 years together/20.42 years of service= .1714) and awarded Wife half that amount net 10% for taxes.  In support of this decision, the family court found:

This Court feels that to award [Wife] an amount greater than this would be to reward a spouse who 1) benefitted greatly from her estrangement from her husband[;] 2) was not a credible witness[;] 3) does not need the funds as greatly as the other party[;] and, finally 4) will, for the foreseeable future, always be in a much better financial position than the other party.

Wife sought reconsideration.  The family court then found that the whole retirement accruing during the marriage was marital (16 years of marriage/20.42 years of service = .7835) but only awarded her approximately 11% of the marital portion net 10% for taxes, increasing her monthly retirement benefit from $144.94 to $161.51.

The Court of Appeals held it was error to only award Wife 11% of the marital portion of the military retirement. The Court increased the award to 20% of the portion of Husband’s retirement benefits that accrued during the marriage (by my calculations 15.67% of the total retirement).

Both the family court and the Court of Appeals noted some factors justifying a deviation from a 50/50 division. Wife had a paralegal certification as well as a master’s degree in Public Policy and Social Policy from Georgetown University.  She had a monthly income of $8,500, and a substantially greater earning capacity than Husband.  Wife was in excellent health, whereas Husband had significant health issues that limited his ability to earn an income

In rejecting a 50/50 division of the marital portion of Husband’s retirement but increasing Wife’s percentage, the Court of Appeals noted:

Wife’s contributions to the marriage entitled her to a greater share of Husband’s military retirement benefits.  Specifically, Wife was the primary caretaker for the parties’  daughter throughout their marriage and assumed a greater financial role in their child’s upbringing than Husband.  Wife cites to several cases in support of her claim that she is entitled to share equally in Husband’s retirement benefits.  Even though these cases lend support for Wife’s argument that she is entitled to a greater share, we find the factual circumstances in those cases distinguishable from those of Husband and Wife. Unlike those cases, Wife and Husband shared a marital home for only a small portion of their marriage; Wife never traveled with Husband to any of his deployments, either in the States or abroad; and Wife had a superior education and income to that of Husband.

(emphasis in original).

Wife appealed a few other issues that the Court of Appeals affirmed.  She appealed the family court’s child support award, claiming that the family court erred in “only” imputing Husband $2,000 per month in income in setting his child support obligation and reducing the child support amount that was agreed to in the temporary order.  On appeal, Wife inexplicably argued for a lower imputed income than the $2,000 per month.  The Court of Appeals held the imputed income amount was reasonable.  It also rejected Wife’s argument that the family court erred in reducing Husband’s child support obligation because Husband failed to submit sufficient evidence of changed circumstances since the temporary order, noting:

[T]he prior child support order was issued pendente lite; therefore, any change in circumstances was not dispositive of Husband’s obligation.  The temporary child support order was simply that, a temporary agreement reached in contemplation of further negotiations and/or judicial proceedings.

Wife also appealed the requirement that she pay the remaining debt on a Nissan Sentra.  Husband had initially purchased this vehicle but he could not afford it and the bank repossessed it. Wife eventually got the vehicle back and owned that car on the date of the final hearing.  Wife argued that Husband’s past use of the Sentra made it inequitable that she pay that whole debt.  The Court of Appeals rejected that argument, noting:

Husband’s financial declaration reflects his monthly car payment was $410, and Wife’s financial declaration reflects her monthly car payment was $732.  Based on the parties’ incomes, we find it reasonable to require each party to pay for their own vehicle.  Although both of these vehicles were purchased during the course of the parties’ marriage, we find that Wife’s sole use and ownership of the Nissan Sentra on the date of the final hearing support the family court’s decision to require Wife to pay the outstanding debt on the vehicle.

(citations omitted).

It would be nice if the Court of Appeals explained how it determined that awarding Wife 20% of the marital portion of Husband’s retirement is the right amount.  Did the Court of Appeals pick this percentage out of a hat?  Also, there are few cases in which the court deviated from a 50/50 division due to one party’s greater earning capacity.  Here the court deviated 30% from a 50/50 split and justified it, in part, on the different earning capacities.  For cases in which the parties lived together the bulk of the marriage, are we going to start seeing appellate decisions that deviate substantially from 50/50 due to different earning capacities?  I doubt it.

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