The December 9, 2020, Court of Appeals opinion in Jackson v. Jackson, 432 S.C. 415, 853 S.E.2d 344 (Ct.App. 2020), demonstrates the problems that can develop in equitably dividing the marital estate when there is a long gap between the parties’ separation and the filing for marital dissolution.
In Jackson, the parties separated in 2006. In 2007 Husband was convicted of check and credit card fraud. He was in prison until 2008. In 2008, Wife obtained a child support order but didn’t file for divorce until 2014. Many of the issues on appeal stemmed from whether assets and debts accumulated in this eight-year period were marital.
One of the two non equitable distribution issues on appeal was whether Husband should have been ordered to pay for a portion of the parties’ lone unemancipated child’s school graduation and school trip. The family court ordered Husband to pay guidelines child support but also ordered him to pay half these expenses, finding he had agreed to do so during his testimony. The Court of Appeals found he had agreed to pay some of the graduation expense and therefore affirmed the requirement that he contribute half. It reversed the requirement that he pay for half the class trip, finding that this was not an “educational expense” under the child support guidelines and that Husband had not agreed to pay any of it.
The Court of Appeals further affirmed the award of $200 per month in permanent periodic alimony (increasing to $300 per month on the daughter’s emancipation). It found that Husband–despite his disability– had much greater income and was at fault in the breakup of the marriage. The family court granted Wife a divorce on the ground of Husband’s adultery and he did not appeal that issue. Husband argued that Wife was able to maintain the marital lifestyle without his support because the marital lifestyle was quite modest. The Court of Appeals noted that the lifestyle enjoyed during the marriage was only one of the thirteen alimony factors and that the other factors supported an award of alimony.
Husband appealed myriad equitable distribution issues. It found Husband had failed to demonstrate that credit card debt he incurred after the separation was marital because he failed to prove the debt was incurred for marital purposes. While he alleged Wife used some of the credit cards, he failed to produce evidence supporting his claim and Wife testified otherwise. The family court found Wife more credible on the issue. Given Husband’s access to the credit card statements and his failure to produce proof of Wife using these credit cards, that credibility determination was not one the Court of Appeals found mistaken. It thus affirmed that these debts were not marital.
Husband argued his restitution from his criminal charges were a marital debt, alleging Wife financially benefitted from his fraud. The Court of Appeals affirmed the family court’s determination that this debt wasn’t marital, finding there was no evidence that Husband had “use[d] the ill-gotten gains to support the marriage.”
Husband appealed the family court’s finding that his tax liability for years between 2002 and 2010 were not marital debts. The parties stopped filing joint taxes in 1998. Between 1998 and the parties’ separation in 2006, Husband provided support to Wife totaling less than $500 annually. Because Wife did not financially benefit from Husband’s under-withholding, the Court of Appeals affirmed that these tax liabilities were not marital.
Husband argued that a property Wife partially inherited from her family in 2001 and then completely purchased in 2010 should have been treated as marital. The family court found none of the interest in the property was marital. The Court of Appeals held that the 1/7th interest she inherited in 2001 was not marital but the remaining interest was. However, it refused to award Husband any portion of the marital interest as he had contributed little (he paid the electric bill on one occasion) towards its accumulation.
The family court found Husband did not oppose sharing any future settlement he might receive from Social Security, Workers’ Comp, or his employer’s buyout and ordered him to share equally any settlement he might receive. Husband argued this was error, but failed to cite any authority to support his arguments. The Court of Appeals therefore affirmed the awards of Worker’s Comp and his employer’s buyout. However, it reversed the award of Social Security benefits. Federal law forbidding the assignment of Social Security benefits. 42 U.S.C. § 407(a) (2018). Therefore, the family court lacked subject matter jurisdiction to divide this benefit.
The Court of Appeals found Husband’s two remaining equitable distribution issues either unpreserved or did not involve an actual controversy.
Long gaps between the date of separation and the date of filing for marital dissolution can lead to the problems that Jackson demonstrates. Determining which post-separation debts simply benefitted one party, and therefore shouldn’t be treated as marital, and whether the one party should get any credit for post-separation assets the other party acquires are vexing problems not amenable to easy solutions.
