Fault and alimony in South Carolina

Posted Sunday, June 14th, 2020 by Gregory Forman
Filed under Alimony/Spousal Support

Since 1990, when South Carolina adopted its current alimony statute, there have been surprisingly few published appellate decisions on how fault affects alimony. The statute itself, S.C. Code § 20-3-130, makes adultery by the supported spouse a bar to the award of alimony. Thus it’s not surprising (or informative) that there are a number of decisions analyzing whether a supported spouse committed adultery.

There have been no recent reported decisions addressing how a supported spouse’s habitual intoxication should affect alimony. The last reported opinion addressing alimony for a habitually intoxicated supported spouse is Lee v. Lee, 282 S.C. 76, 316 S.E.2d 435 (Ct.App.1984), which affirmed an award of $150 per month in alimony for six months. It is doubtful the appellate court would approve such a limited alimony award now.

There has been only one published opinion since 1990 addressing an alimony award to a physically cruel supported spouse (although the family court granted the divorce on no-fault grounds). In Sharpe v. Sharpe, 307 S.C. 540, 416 S.E.2d 215 (Ct.App. 1992), the wife actually conspired to kill her husband. The family court required husband to keep wife on his company’s health insurance plan as a form of alimony, and Court of Appeals affirmed this award. I know one local attorney who believes this award was to keep Ms. Sharpe’s health care from being the responsibility of the South Carolina taxpayers (he indicates she was incarcerated as a result of the conspiracy).

One might understand why in 1990 (when there wasn’t reliable paternity testing) South Carolina legislators would have wanted to place such a strong sanction on a supported spouse’s adultery–although, even then, that ban was both sexist and patriarchal, and it remains unique in United States family law. If one views marriage as primarily a means to legally bind men to children then strongly punishing a wife whose actions potentially break that linkage is conceivably justified. In today’s culture it simply seems a method a treating a woman’s body as her husband’s possession. I don’t think any politician supports that view of marriage–at least in public.

Although desertion as a fault ground fell into increasing disuse after the separation time period for a no-fault divorce was reduced to one year (the same period required to prove desertion), Gilfillin v. Gilfillin, 334 S.C. 213, 512 S.E.2d 534 (Ct.App. 1999), notes wife’s desertion as the family court’s basis to award wife only $3,200 per month in alimony. However, as wife suffered from serious mental conditions that she believed her husband exacerbated, the Gilfillin opinion does not appear to sanction her desertion strongly in setting her alimony.

It’s odd that, of the three commonly used fault divorce grounds, adultery is the only one which leads to an automatic alimony ban. I’ve long thought that our culture is too tolerant of domestic violence and habitual intoxication within a marriage and too intolerant of adultery. Only gaslighters blame their spouse for their own domestic violence and habitual intoxication but adultery is more often a symptom than the cause of a troubled marriage. Further, domestic violence and habitual intoxication directly impact the children. Typically, adultery does not. Yet it is only adultery that South Carolina has chosen to sanction with an outright ban on alimony.

In contrast to the dearth of case law on how fault impacts a supported spouse’s alimony, there is plenty of case law on a supporting spouse’s fault being a factor in alimony. In Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988) the Court of Appeals authorized permanent alimony on a fourteen-month marriage because husband had physically abused wife. In response to husband’s argument that a short marriage should not result in permanent alimony, the Court of Appeals held:

Unlike most cases, fault is a substantial factor in awarding alimony in this case. Dr. Johnson, not Mrs. Johnson, is to blame for the shortness of the marriage. When the duration of the marriage is seen in its proper light, the equities favor Mrs. Johnson, not Dr. Johnson. An at fault spouse cannot destroy a marriage and then claim its short duration entitles him to more favorable consideration when the economic adjustments attendant to divorce are made.

There are myriad cases in which an adulterous husband was made to pay alimony to his wife. McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998), still holds the South Carolina record for highest alimony award in a published opinion (even though it reduced the award for $11,000 to $7,500 per month). In Bojilov v. Bojilov, 425 S.C. 161, 819 S.E.2d 791(Ct. App. 2018), the Court of Appeals affirmed a $200 per month alimony award to a higher-income wife in part due to husband’s adultery. There are no recent published opinions addressing a supporting spouse’s habitual intoxication as a factor in alimony–possibly because the habitually intoxicated have employability issues that impact their earning capacity.

In my experience, at the trial court level, marital fault is one of the most important factors–after length of marriage, and the parties reasonably anticipated income and expenses–in determining alimony. In Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114 (2004), the South Carolina Supreme Court acknowledged the “[t]hree important factors in awarding periodic alimony are (1) the duration of the marriage; (2) the overall financial situation of the parties, especially the ability of the supporting spouse to pay; and (3) whether either spouse was more at fault than the other.” However thirty years of appellate court opinions provide almost no guidance on how a supported spouse’s fault should affect the alimony award. We could use more case law on the issue.

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