Should separation be required for a separate maintenance action?

Posted Sunday, August 21st, 2011 by Gregory Forman
Filed under Divorce and Marriage, Jurisprudence, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

In April 2011, the South Carolina Supreme Court heard oral argument in the case of Eileen Frances Theresa Busto Theisen v. Clifford Richard Theisen.  According to the Supreme Court’s roster of cases, the issue in this appeal is “whether physical separation is a pre-requisite for a party to receive separate maintenance and support.”  Since Supreme Court review is discretionary, I assume the Supreme Court intends to consider whether the Court of Appeals decision of  Ariail v. Ariail, 295 S.C. 486, 369 S.E.2d 146 (Ct.App. 1988), which held that physical separation is required before a spouse can file for separate maintenance, remains good law.

For me a decision in Theisen is eagerly anticipated.  A Supreme Court opinion overruling Ariail would be a revolution in South Carolina family law.  In Pennsylvania, where I practiced for one year before moving to South Carolina, a spouse could move into a separate bedroom and then file for separate maintenance.  In South Carolina spouses must actually be in separate residences to file for separate maintenance.

Attorneys I highly respect, such as Professor Roy T. Stuckey and Thomas F. McDow, believe South Carolina’s current policy is misguided.  They would contend that forcing a spouse to leave the marital home to begin family court proceedings when that party believes the marriage is irretrievable broken forces spouses to remain in psychologically destructive marriages.

While I understand and am sympathetic to this concern, I believe a change in policy would be a disaster.  Combining no fault divorce with no fault alimony has created an extreme imbalance of power in many marriages, with the primary homemaker spouse having the power to unilaterally end the marriage while demanding support from the primary wage-earner spouse–and often greatly disrupting the wage-earner’s relationship with the parties’ children.  In South Carolina, where a bi-polar approach to alimony [extremely generous and typically permanent when the supported spouse hasn’t committed adultery; barred when the supported spouse has], this imbalance of power is even greater.  I wish social scientists would actually research the effect that the combination of no-fault divorce and no-fault alimony, which began in the 1970’s, had on the decline in marriage rates and the increase in out-of-wedlock births.

South Carolina already allows an unhappy spouse to file for fault divorce without leaving the marital home.  Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995).  Right now an unhappy spouse who wants to end his or her marriage without having fault grounds for divorce has to undergo the hassle and risk of actually leaving the marital home.  This makes many spouses think twice about leaving, leads some such spouses to work on their marriage rather than leave, and forces the unhappy spouse to attempt settlement negotiations to end the marriage rather than seeking judicial intervention (which has the effect of giving the other spouse some leverage).

At its core this is a policy choice our legislature should be making.  Ariail is 23 years old and our legislature should have used this time to decide whether spouses should be able to dissolve their marriages without actually separating or proving fault.  However, on this issue, as on so many important areas of family law, the South Carolina legislature is simply too cowardly or detached to make and defend decisions on important issues regarding the preservation and dissolution of families.  Thus, our appellate courts are increasingly asked to make these policy choices.

In the context of traditional wage-earner/homemaker marriages, obligations that were reciprocal during the marriage become very one sided post-separation: the supporting spouse typically is required to provide the supported spouse a significant portion of his or her income; all the supported spouse is typically required to do is make the parties’ children available for visitation.  Allowing unhappy supported spouses to file separate maintenance actions–and demand the other spouse pay support and move out of his or her home and away from their children–without first requiring that spouse to prove fault or vacate the marital home gives way too much negotiating leverage to unhappy supported spouses.  Such policy would make marriage a sucker’s bet for any supporting spouse who didn’t demand a prenuptial agreement prior to wedlock.  When an opinion in Theisen is issued, we’ll see if the Supreme Court agrees.

6 thoughts on Should separation be required for a separate maintenance action?

  1. “Should separation be required for a separate maintenance action?”
    I would require it ….. but then I would also require proof of marriage.

  2. Roy Stuckey says:

    Greg, I don’t disagree with you about Arial. Arial and Barnes v. Barnes addressed the issue of whether a person could file for divorce based on one year separation if they lived in the same house during that year. I agree that it would be a bad decision to change that result.

    As I understand from your comments, the case before the Supreme Court is different. Whether a person can file an action for separate support and maintenance without moving out of the house involves the same considerations and policies that are discussed in Watson.

    As you know, lawyers around the state are employing all sorts of tactics to help people who are still living in the same house file actions for separate support and maintence, including having one party move out of the house the day before the action is filed (and perhaps move back in a day later). I have never heard a good reason for requiring one person to abandon the house before filing for separate support and maintenance. In fact, I think the law presently allows pre-separation filing, although most family court judges disagree with me.

    You don’t seem to be sympathetic to women who’ve given up their career opportunities to be stay at home moms, then find themselves in bad marriages with no ability to support themselves outside of their marriages. Even without “fault” as our law defines it, some of these women are in desperate situations.

    1. Roy:

      I am quite sympathetic to “women who’ve given up their career opportunities to be stay at home moms, then find themselves in bad marriages with no ability to support themselves outside of their marriages…” As previous blogs have indicated I find South Carolina’s adultery bar to alimony to be archaic and abominable. Even in an era of no-fault divorce and fewer barriers to entry for women in the professions, alimony is still a necessary part of family-supportive social policy.

      However there are two (additional) massive flaws in the way alimony is handled in South Carolina and until those flaws are remedied, I believe that any policy change that allows an unhappy spouse to seek alimony when there in no fault and not even a separation will destablize marriage and make marriage less attractive to wage-earner spouses.

      The first flaw is the family court’s use of alimony to equalize (or nearly equalize) incomes. South Carolina already recognizes that the homemaker’s contribution is equal to the wage earner’s contribution when it comes to property division. The loss of the homemaker contribution is a real loss that South Carolina’s alimony code fails to recognize. Two ex-spouses with equal or close-to-equal incomes are not living equivalently if the alimony payor has to devote much greater time and resources to employment (work clothes and transportation to work ain’t free and there are myriad other small expenses associated with employment) while the alimony recipient has more time (and greater experience) to devote to homemaking. I have blogged on this conceptual flaw.

      The second flaw with South Carolina’s current support structure is that support goes up easily when the payor’s income rises but does not go down so easily when income drops. I’ve yet to see the family court judge even blink before raising my clients’ support obligations when their incomes rise. It’s a continuous and vigorous fight to get support reduced when my clients’ incomes drop.

      Fix these two imbalances and I might support the right to seek support when there’s no fault and no separation.

      1. Roy Stuckey says:

        I don’t know anyone who is happy with the way alimony is handled in South Carolina. Today, entitlement and amount are almost entirely dependent on the philosophy of individual judges. That approach is not conducive to uniform, equitable outcomes.

        At some point, the Bar, the Supreme Court, and the legislature will have to face the problem and develop guidelines or formulas for setting alimony. A few years ago, one of my students wrote a paper in which she looked at alimony formulas in other states, then drafted a proposed alimony formula for SC. As I remember, it was not terribly complicated and, in fact, made sense. I still have the paper.

        1. Roy, not sure if you read this New York Times op-ed piece: Ending the Alimony Guessing Game. New York State recently adopted alimony guidelines for temporary alimony. The guidelines seem easy to understand and apply and pretty reasonable.

  3. Roy Stuckey says:

    So, why doesn’t South Carolina do the same thing? Who’s in charge?

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