Supreme Court acknowledges investment income is a factor in awarding alimony but affirms alimony award in which family court declined to set a specific figure for such income

Posted Wednesday, March 20th, 2019 by Gregory Forman
Filed under Alimony/Spousal Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The March 20, 2019, South Carolina Supreme Court opinion in Sweeney v. Sweeney, 420 S.C. 69, 800 S.E.2d 148 (2019), “establishes” something I had assumed was already well established: in setting alimony, the family court should consider investment income available to the parties. After all, the sixth alimony factor is “the current and reasonably anticipated earnings of both spouses.” S.C. Code Ann. § 20-3-130(C)(6).

The issues in Sweeney were two fold. First, the parties’ experts disagreed on what rate of return to apply to Wife’s share of the parties’ liquid assets, with Husband’s expert suggesting a higher rate of return and more aggressive liquidation of principal. Second, the family court did not make a factual finding on what income Wife could earn from her share of the liquid assets.

After the Court of Appeals affirmed the family court’s award of $5,000 per month of permanent periodic alimony to Wife, Husband sought, and was granted, certiorari. The Supreme Court affirmed. In affirming, the Supreme Court noted that the family court clearly considered Wife’s potential investment income in setting alimony and held that the family court was not required to determine an actual numerical value to apply to investment income. The Supreme Court further emphasized the “reasonably anticipated” (emphasis in original) nature of investment income, suggesting that the family courts should use a conservative rate of return in considering the investment income potential of liquid assets.

So while potential investment income is a factor in alimony, the family court’s should apply a conservative rate of return and be conservative about liquidation of principal in determining alimony. Further, the family court is not required to determine an actual investment income figure in its alimony factual findings.

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