What Types of Alimony are There and How Does the Court Determine Alimony?
South Carolina’s alimony statute, § 20-3-130, lists all the types of alimony and the factors in setting alimony. There are basically four types of alimony in South Carolina: permanent periodic alimony, rehabilitative alimony, lump sum alimony and reimbursement alimony. Alimony is designed to allow the supported spouse to maintain the marital lifestyle.
Permanent periodic alimony is permanent (paid until either spouse dies, the supported spouse remarries or the supported spouse cohabits for a period of 90 days or more) and paid periodically (generally monthly or twice monthly). It can be changed or terminated on a showing of a substantial change of circumstances. Permanent periodic alimony is the most common form of alimony and the alimony most favored in South Carolina. When the parties are not yet divorced, permanent periodic alimony is called separate support and maintenance or spousal support.
Rehabilitative alimony is alimony set for a period of years and paid periodically. It is terminated when either spouse dies, the supported spouse remarries or the supported spouse cohabits for a period of 90 days or more. Rehabilitative alimony can only be awarded when there is evidence presented (and when the court finds) a likelihood that the supported spouse can become self-supporting within the rehabilitative time frame. It is frequently awarded when the marriage is short or when the support spouse can become self-supporting through further education or training.
Lump sum alimony is alimony that is fixed in amount. It can be paid all at once or in set payments: however the total amount of alimony awarded is fixed and unalterable. It is terminated when the supported spouse dies but not when the supported spouse remarries or the payor spouse dies. Lump sum alimony is typically awarded when the supported spouse needs a fixed amount of support or when the parties desire the certainty of a fixed support obligation.
Reimbursement alimony is designed to reimburse the supported spouse for investment in the supporting spouse’s education or business. This investment does not necessarily need to be a financial investment; it can include investments of time and energy in taking care of the household (including children) or the household expenses while the other spouse expends effort and funds in developing a business or obtaining an education. Often reimbursement alimony becomes necessary when spouses separate before the supporting spouse has established a history of greater earnings than was anticipated and when that spouse established a business or completed his or her education.
Alimony is generally designed to enable the supported spouse to maintain the marital lifestyle; reimbursement alimony is designed to enable the supported spouse to enjoy the lifestyle he or she would have had in the future had the parties remained married. It is based on principles of equity and expectation. The typical reimbursement alimony case involves a supported spouse who balances work, homemaking and children while the other spouse obtains a professional degree only to have the other spouse end the marriage once the degree is obtained. South Carolina believes that reimbursement is required for the supported spouse based on his or her reasonable expectation that the years of sacrifice would lead to mutual benefits.
Alimony can generally be awarded despite the supported spouse’s fault in the breakup of the marriage. However, alimony cannot be awarded where the supported spouse has committed adultery prior to the issuance of a final order of separate maintenance and support or the formal signing of a written property or marital settlement agreement.
A family court judge has wide discretion in setting alimony. Whether alimony is awarded and the amount of alimony awarded can vary greatly depending upon the judge hearing the case. The primary factors the court considers in setting alimony are the lifestyle enjoyed during the marriage; the length of the marriage; whether there are any dependant children that might restrict the supported spouse’s ability to work full-time; the age, health and education of the parties at the time alimony is being set; the fault in the breakup of the marriage; the parties’ respective earnings and earning capacities; the parties respective reasonable living expenses; and the tax consequences of any alimony award (alimony is generally taxable to the supported spouse).
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