South Carolina’s alimony lottery

Posted Friday, February 19th, 2010 by Gregory Forman
Filed under Alimony/Spousal Support, Jurisprudence, Of Interest to General Public, South Carolina Specific

I had a recent phone conference with a New Jersey attorney as we discussed the advantages of disadvantages of fighting an alimony case in South Carolina versus fighting it in New Jersey.  As I discussed the factors that the South Carolina courts might examine in deciding alimony, New Jersey counsel kept stating incredulously: “they’d really consider that?”  I get a similar response whenever I discuss South Carolina’s alimony structure with out-of-state counsel.  Imagine the worst aspects of a lottery combined with roulette and you have a pretty good mental image of how South Carolina decides alimony.

One thing is certain: commit adultery while the marriage is breaking up but prior to the execution of a formal separation agreement or final order deciding alimony and the court is forbidden to award you alimony. See S.C. Code Ann. § 20-3-130.  Outside of the adultery bar, a spouse can engage in reprehensible conduct and still receive alimony (though such conduct makes the award of alimony less likely).  I have seen cases in which wives [it’s almost always wives who receive alimony; in 16 years of practice, I have only seen three cases in which husbands received alimony, none of them receiving permanent alimony] have received alimony despite being incapacitated by alcohol or prescription drugs or so lazy that even they couldn’t explain what they did with their days.  On the other hand, I have seen cases in which some minor misconduct by the wife was used to justify greatly reduced alimony or a denial of permanent alimony.  I have seen cases in which after a long term marriage an innocent wife was left with a much lesser lifestyle than her skirt-chasing husband; I have seen cases in which an ex-husband was left working himself to exhaustion to pay alimony to a wife who had no job, no children to care for, and apparently no incentive to work.

The adultery bar to alimony leads to great injustice: a husband can have sex with his wife’s sister, her brother, and half the College of Charleston cheerleading squad, and then leave his wife to shack-up with the wife’s best friend, while clearing out the family bank account, but let the wife have a sexual relationship while the parties engage in protracted litigation over the divorce and she’s not getting alimony.  Period.  I actually had a client lose her alimony claim for having a sexual encounter the weekend before trial when the parties had been separated for four years, the litigation had gone on for two years, and the husband was a serial adulterer.  Opposing counsel and I were only $50.00 a month apart on settling alimony with opposing counsel indicating that her client would probably accept my client’s alimony demand.  I figure that one sexual encounter cost my client over $100,000.00 (she had been repeatedly warned not to commit adultery).  I cannot conceive of a sexual encounter that could be worth $100,000.00, but perhaps I have a limited imagination.

The situation can be even worse for temporary alimony awards, in which the court bases its temporary alimony award upon a review of affidavits and in which a spouse who has limited concern for long-term consequences has the ability to lard the affidavits with inflammatory and unprovable allegations of horrific conduct by his or her spouse.  Like I noted above: imagine the worst aspects of a lottery and a roulette wheel.

Given the tremendous potential variability in alimony awards, and the fact that adultery, and only adultery, creates an absolute bar of alimony, numerous family law practitioners believe there has to be a better way for South Carolina to decide alimony.  Short of creating a formula similar to the child support guidelines I am not sure what this better way would be.  It is clear to most South Carolina family law practitioners that the adultery bar to alimony causes great injustice and should be abolished.  However, this bar is imposed through legislation, not through judicial case law, and how could one ever convince a South Carolina legislator to vote for something that reduces the “punishment” for adultery?  It’s doubtful this bar to alimony will be abolished in my lifetime.

Some creative, mostly feminist, family law attorneys have tried to argue that the adultery bar to alimony is unconstitutional because it disproportionately impacts women: the female gender is the one overwhelmingly denied alimony due to their adultery.  The wife raised this issue in McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998) but the Court of Appeals didn’t need to address it because it agreed with the family court that husband had not met his burden of proving wife committed adultery, and therefore found she was not barred by statute from receiving alimony.

While I sympathize with these feminist’s constitutional challenge to South Carolina’s adultery bar to alimony, I don’t think they’ve thought through the logical consequences of their argument.  For if the adultery bar to alimony is unconstitutional due to its disproportionate impact upon women, the alimony statute is equally unconstitutional due to its disproportionate impact upon men.  In fact, both statutes are disproportionate in the exact same manner: it’s only because the overwhelming percentage of people paying alimony are men that the adultery bar to alimony overwhelming impacts women.  The day after our appellate courts find that the adultery bar to alimony is unconstitutional because of its “unfair” impact upon women, I will begin arguing that the alimony statute is unconstitutional because of its “unfair” impact upon men.  If this ever happens, and I highly doubt it ever will, it will be hugely entertaining–a least to me–to observe the family and appellate courts comport themselves like pretzels to explain why alimony isn’t unconstitutional if the adultery bar to alimony is.

13 thoughts on South Carolina’s alimony lottery

  1. MJ Goodwin says:

    So what do they do differently in New Jersey? I am (as I suspect other readers of this blog may be) woefully ignorant of the alimony laws outside our borders.

  2. MJ:

    Not really sure about everything that’s different in New Jersey but I know that other states don’t consider fault (both the spouse seeking alimony and the spouse paying alimony) to anywhere near the extent that South Carolina does in determining the amount of and entitlement to alimony.

  3. George says:

    “It is clear to most South Carolina family law practitioners that the adultery bar to alimony causes great injustice and should be abolished.”
    I disagree.
    A friend of mine was ordered to pay $1400 to his ex-wife who gave a bear to three children from another man during their marriage.

  4. Jan says:

    Well, ladies you now not to hire this attorney if you are filing for divorce. The purpose of alimony is not to punish the x spouse for committing adultery. Typically the man makes more money. This is especially true in long term marriages where the wife/mother tends to take a job that allows for more flexibility to take care of the kids. After so many years the man typically has an affair or two or three so the the marriage ends. Alimony is paid to the partner that makes the less amount of money so that (typically) she can maintain some semblance of the lift style that she had during the marriage.

    Also what is left out of this is that if the receiver of alimony gets married again or lives with anyone for 90 days then alimony stops. No alimony is for the financial protection of the spouse that in most cases was running the ship while the supposed “captain” was running it aground…

    1. Eric says:

      One of the up votes is mine but I meant to downvote… I think Jan missed the point completely.

    2. Wyman says:

      It is not always true that a someone living with another person for 90 consecutive days will end the permanent alimony. I have seen cases where there was proof of this, but it was disallowed by the judge to even be presented. Like Mr. Foreman says, it is a combination of the lottery mixed with roulette in SC.

  5. Unfair laws says:

    South Carolina law does not give the judge the opportunity to look at each circumstance and make an educated decision. A man can pay years of alimony, his ex-wife can be engaged for months even years and and as long as she doesn’t move in with the fiance the ex-husband continues to pay for her to live.

  6. Norman Campbell says:

    What bothers me is being judged an alimony when there was no adultery. We went through the year’s separation and still I was judges to pay alimony. I know that the rule was I had to compensate her so that she could continue living in a lifestyle she is accustomed to but to do this for life? (Till she remarries or passes away).
    Since the divorce my ex has done nothing to improve her lifestyle. She doesn’t work and counts on my alimony payment to get by.

  7. Wyman Oxner says:

    No one should have to pay someone else for the rest of their lives simply for marrying the wrong person. No matter what caused the break up the alimony should be for rehabilitative purposes only or at least end at some point short of death. If you can work, you can support yourself like everyone else in America should do. Alimony has become like a lottery in many cases where the person paying is struggling to survive and the person receiving is living a life of leisure without having to work on a job for income. Many times the receiver is making more than the payer. There are times when the ex is receiving alimony, part of the payer’s retirement, and social security. This is like winning the lottery.

    There are government programs such as Welfare, Food Stamps, and Medicaid to help someone who is indigent. The court system should not be allowed to take one person’s income and distribute it to someone else for a lifetime. It causes two people to try an live on one income for life. This is so wrong. Alimony needs to be reformed so that it is fair to BOTH parties.

  8. John khoury says:

    Gregory Forman is BAR NONE the best family attorney in Charleston SC. I have seen him try four different cases with my family included and although he can be hard to deal with it’s to make sure you know which side of the line is right. I will never use another attorney other than Greg Forman for family matters in my life. I recommend him to EVERYONE men and women. His argument in this statement is a very valid point. I hate to see someone take a shot at Him for giving a accurate assessment of the state institution that mediates family law.

  9. Beth P. says:

    Best article I have ever seen on the award of alimony in SC. I practice family law down in Beaufort County and your blog has helped me think through many issues over the years and for that I thank you!

  10. Kelly says:

    I think the judges should be allowed to decide for themselves on a case by case basis. I was married for 18 years to a porn/masterbation addict who did not ALLOW me to work. After 17 1/2 years of putting up with the disgusting porn crap I had an affair. I get nothing. I moved all over the country away from my family to support his career. Gave up having any career of my own. If South Carolina developed this law based on what the Bible says about adultery, then porn (lust) is also defined in the Bible as adultery.

  11. David says:

    My case is a No Fault divorce so my comment here will not be in line with the Adultery aspect of Alimony. We were married 20+ years at the time of filing (the second filing within 2 years that she initiated). I have a Federally Mandated retirement age of 65 and am currently 60 (4.5 years to retirement) and currently make approximately 2.5 times what she earns. She is Upper Level Management in a large hospital network, earns 6 figures, is 52 (12+ years to 65), and has no mandated retirement. I have run 11 earning/alimony scenarios using 65 as the end date for us both for my calculations and in every scenario she will out earn me. The worst case, using the current alimony amount and assuming it’s not modified at my retirement, she will out earn me by 55.4% and even if alimony is eliminated upon my retirement she will still out earn me by 32.3%. The best case (alimony reduced by 80%) she will still out earn me by 7.1%. The Judge awarded me the Marital Home in the Temporary Hearing approximately 1.5 years ago. Since 2 of the requirements that the Judge “must consider” regarding Alimony state “earning potential” and “reasonably anticipated earnings” my question is how much weight do SC Judges typically give those 2 requirements? There’s no question that I currently out earn her, however, the end date of those earnings is set in stone and approaching rapidly. Conversely, she has no end date and will still continue to move up the ladder within her profession. Thanks for any input.

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