New statute codifies law on alimony modification upon retirement

Posted Monday, July 16th, 2012 by Gregory Forman
Filed under Alimony/Spousal Support, Legislation, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

One of my blog’s readers posted a comment linking a new statute that codifies the law on modifying alimony upon the supporting spouse’s retirement.  South Carolina House bill 4738, which went into effect June 18, 2012, adds subsection B to S.C. Code § 20-3-170.  This new subsection reads:

Retirement by the supporting spouse is sufficient grounds to warrant a hearing, if so moved by a party, to evaluate whether there has been a change of circumstances for alimony.  The court shall consider the following factors:

(1) whether retirement was contemplated when alimony was awarded;

(2) the age of the supporting spouse;

(3) the health of the supporting spouse;

(4) whether the retirement is mandatory or voluntary;

(5) whether retirement would result in a decrease in the supporting spouse’s income; and

(6) any other factors the court sees fit.

This subsection doesn’t appear to change the criteria for modifying alimony upon a supporting spouse’s retirement.  Age, health, income and earning capacity are already codified factors for setting or modifying alimony and “whether retirement was contemplated when alimony was awarded” goes to whether retirement was an anticipated change of circumstance when alimony was previously set.  It will be interesting to see how the family court applies this subsection but this new subsection doesn’t limit the family court’s discretion on whether and how much to modify alimony when the supporting spouse retires.

Both the appellate courts and the legislature seem unwilling or unable to provide the types of limits on the family court’s discretion that would provide ex-spouses more certainty and alimony awards more uniformity.  This is consistent with the legislature’s failure to create alimony guidelines (which are slowly being adopted in other states) or pass the “short-term marriage alimony” provision proposed approximately a decade ago that would have allowed the family court to award alimony of limited duration for marriages of under a decade even if the supported spouse was incapable of rehabilitation.

6 thoughts on New statute codifies law on alimony modification upon retirement

  1. joe mendelsohn says:

    Greg, could you direct me to your latest comments on the new custody legislation? I printed it out,but misplaced it.

    Thanks, Joe M.

  2. I would suppose that retirement is always comptemplated, so the statute must men something more complex than that.

    1. I think the statute is implicitly referring to orders in which impending retirement is an explicit part of the determination of alimony. Just last week I had an agreement approved in which my client’s alimony would be reduced or eliminated if he was let go from his employment or if he retired upon reaching age 67. In such circumstances I wouldn’t want or expect his retirement to be a basis to modify alimony.

      However where an alimony order is silent on how retirement will affect alimony, I would want and expect retirement to authorize modification of alimony.

  3. Greg,

    You have commented that failure to address retirement in an agreement (remaining silent) would likely authorize modification of alimony upon retirement. Would you view it differently if the client was in his or her late 50’s or early 60’s at the time the final agreement was approved?

    1. Not if the order was silent on the retirement issue.

  4. Greg, I’m are going back to family court to get get alimony reduced in retirement. (1) do you are any of your bloggers know of rulings regarding ex-spouse getting rental income from real properties , although she received her share of the properties in the initial divorce settlement 16 years ago?
    (2). Should income from “post-divorce” retirement accounts be considered when computing alimony in retirement?
    I need some actual rulings to cite.
    Thanks. You have a very helpful website.

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