On January 16, 2020 the South Carolina Supreme Court denied certiorari in Moore v. Moore, 427 S.C. 26, 828 S.E.2d 224 (Ct. App. 2019). After eight prior published appeals denying alimony termination based upon allegations of continuing cohabitation, Moore is the first “final” published opinion in which a supporting ex-spouse successfully terminated his alimony on this basis–with the Court of Appeals finding continued cohabitation after the family court initially denied his claim.

Twice previously I had blogged about the practical impossibility of terminating alimony on this basis. The Moore case establishes a pathway to a successful prosecution of this claim.

In 2012 South Carolina passed a statute, S.C. Code § 20-3-170(B), in which one subsection set forth criteria for the family courts to consider when modifying alimony upon a supporting spouse’s retirement. One assumed the goal was to create greater certainty and uniformity for retirement-based alimony reduction/termination cases. However this subsection lists six factors for the family court to consider, with one factor, “any other factors the court sees fit,” essentially creating infinite factors.

In the nine years since the statute was passed, no reported decisions have interpreted this subsection. Thus, in any trial or temporary hearing to reduce/terminate alimony based upon the supporting spouse’s retirement, the parties essentially rely upon a family court judge’s (likely unknowable) interpretation of this subsection. While the expanded scope of appellate review from Lewis and Stoney means that ultimately a family court judge’s interpretation of these factors will be given less deference, this is of no help for temporary hearings, attorneys who don’t handle appeals, or litigants who cannot afford appeals. Even when appealed, adverse trial decisions are likely to remain in place for two or more years while the appeal moves forward.

Combine the broad discretion of the catch-all factor with the lack of interpretation from the appellate courts and the ability of family court attorneys to advise clients on the likely outcome of such cases is little better now than it was before this statute was enacted. Because of this, I haven’t risked taking a retired spouse’s alimony reduction/termination case to a contested hearing in the past decade–preferring to settle every single one without asking a family court judge to weigh in.

My risk aversion to taking such cases to contested hearings is heightened by two common factors in such retirement-based alimony reduction/termination cases. First, even upon retirement, the supporting spouse almost always has greater income. Second, the supporting spouse almost always has greater wealth upon retirement. Both these factors lead me to conclude that alimony might be reduced upon retirement but that it won’t be eliminated.

There are myriad reasons supporting spouses typically have greater income even upon retirement. Unless the supported spouse earned substantial income in the years leading up to retirement, that spouse’s social security benefits will generally be based upon the supporting spouse’s income–and that benefit level will therefore be half that of the supporting spouse’s. If the supporting spouse had a defined benefit pension, that spouse likely accumulated years towards that pension after the divorce and therefore will receive more than half the monthly benefit (as not all the pension will be marital). When the supporting spouse had a defined contribution retirement plan (such as an IRA or 401k), that spouse typically funded the plan to a greater extent after the divorce and thus has a greater income stream from retirement assets upon retirement. Finally, many high income professionals (those most likely to pay alimony) retire in stages: from full-time employment to part-time employment or consulting, to full retirement. Thus, they often continue to have some wage income even when “retired.” All these factors perpetuate an income disparity that survives retirement. In such circumstances, I do not believe alimony would be fully terminated. While the transition from full-time to part-time to no employment allows multiple alimony reduction attempts, few folks wish to engage in multiple litigations in their senior years to address alimony.

In my experience, the supporting spouse also enters retirement with greater wealth. There are two reasons for this. First, even with the alimony obligation, most supporting spouses still have greater income after divorce (frankly, they also typically spend more time on employment after the divorce) and this greater income leaves them a greater ability to generate wealth. Second, the high-income spouse typically has more experience and a greater ability to handle money. I see many alimony modification cases in which the supporting spouse has invested his or her share of the marital estate while the supported spouse dissipated those assets over time.

Unlike a continued substantial disparity in income–which would clearly be a factor in deciding how much to reduce and whether to terminate alimony–a disparity in post-retirement wealth shouldn’t be a consideration. The parties had an “equitable” distribution of their marital assets and debts at the time of their divorce; if one party simply did a better job growing (or not dissipating) those assets that should inure solely to that party’s benefit. However, I fear a family court judge would consider this disparity under the catch-all factor and use it to justify a continuation of alimony or to reduce alimony by a lower amount than would be justified otherwise. It will take some intrepid family law attorney to litigate and appeal this issue to get a definitive answer. As much as I would like to be that attorney, I cannot justify my clients litigating alimony through trial and appeal simply so I can have a “test case.”

In my experience when supporting spouses retire (or even semi-retire) they expect their alimony to terminate. When I review their financial circumstances upon retirement, they almost always have substantially greater income and wealth than their ex-spouse. I have yet to risk trial to terminate their alimony because I never thought such an attempt would succeed.

A retiring supporting spouse with greater income and wealth likely faces a continuing, but reduced, alimony obligation. While a semi-retiring alimony obligor can seek further modification upon full retirement, that subsequent case will likely, for the same reasons, only result in further reduction.

For retiring alimony obligors who want a definite end date on their alimony obligation, the best option is to negotiate a lump sum payment to end alimony. That is the only way I have successfully ended alimony upon retirement. While the prospect of writing a sizable check (in one case it was low six figures) to end an alimony obligation that they had assumed would end upon retirement, is never ideal, for all of my clients it has been a preferred option over paying reduced alimony indefinitely.

At the time of divorce, it is difficult to predict the parties’ financial circumstances at the time of retirement, and further difficult to predict how a family court judge would interpret the retirement alimony factors. Therefore, I advise my alimony paying clients not to expect alimony to terminate upon their retirement. Any supporting spouse who wants a definitive end date on alimony either needs to commit homicide on their spouse (I don’t advise that), suicide (I don’t advise that either), or negotiate lump sum alimony.

When, in 1990, South Carolina enacted its current alimony statute, S.C. Code § 20-3-130, it provided three grounds to automatically terminate permanent periodic alimony: 1) either party’s death; 2) the supported spouse’s remarriage; and 3) the “continued cohabitation” of the supported spouse. The statute further defined continued cohabitation as:

the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

Obviously it’s clear when a party dies or the supported spouse remarries. Proving continued cohabitation has proven more difficult. Through 2013, no reported South Carolina case affirmed the termination of alimony based upon this ground. Finally, that year, the Court of Appeals affirmed such termination in the case of McKinney v. Pedery, 406 S.C. 1, 749 S.E.2d 119 (Ct.App.2013). Yet, two years later, the Supreme Court reversed the Court of Appeals and found that such continued cohabitation had not been proven. In her concurrence, Justice Hearn noted, “As the statute is written, it is virtually impossible to terminate any award of alimony as a result of the continued cohabitation of the supported spouse.” McKinney v. Pedery, 413 S.C. 475, 776 S.E.2d 566, 574 (2015). Thus it seemed the appellate court might never approve an alimony termination on this basis.

The April 3, 2019 Court of Appeals opinion in Moore v. Moore, 427 S.C. 26, 828 S.E.2d 224 (Ct. App. 2019), may finally be the published case in which alimony is terminated based upon continue cohabitation. In Moore, the parties reached an agreement in 2003 setting Husband’s alimony at $3,800 per month. They reached another agreement in 2011 reducing Husband’s alimony obligation to $3,250 per month based upon his reduced income.

In 2013 Husband filed a second alimony modification action, seeking to terminate his obligation based upon Wife’s continued cohabitation or reduce his obligation based upon further reduced income. At trial, the family court refused to terminate Husband’s obligation but reduced it to $2,250 per month and required him to contribute $10,000 towards Wife’s attorney’s fees. Both parties then filed motions to alter or amend and the family court reduced Husband’s obligation to $1,800 per month. Both parties then appealed.

On appeal, the Court of Appeals terminated Husband’s alimony obligation because it found he had proved continued cohabitation. The evidence cited by the Court of Appeals to substantiate this finding:

  • One of the parties’ daughters, Stephanie Brown, testified that she believed Wife was living with her current boyfriend, Scott Erickson, and that Wife had put pressure on her not to testify.
  • Another of the parties’ daughters, Lauren Kott, testified that she was at Wife’s house almost daily from March to July, 2013, that Wife and Erickson were living together, and that Wife and Erickson “strategically planned nights apart so they were not together for 90 consecutive days.” Kott also testified to Wife’s attempts to hide this cohabitation from Husband, including having Erickson provide funds to Wife’s sister that was then provided to Wife so that it would not look like Erickson was contributing to Wife’s household expenses. This daughter also noted Wife put pressure on her not to testify.
  • Erickson testified that he had a key to Wife’s home, was involved in a romantic relationship with Wife, and that many of his and some of his son’s items were at Wife’s home. While he denied living with Wife, he noted that if his testimony had any impact on Wife’s alimony, it would create a conflict in his relationship with Wife.
  • Wife’s ex-fiancé, Andy Cromer, testified that he and Wife began living together in 2004 or early 2005. He testified he and Wife were living together when Husband filed an action to terminate alimony in 2009, and they lived together until the summer of 2011. He testified that during his deposition, he gave vague answers because he was engaged to Wife and did not want to hurt her case against Husband. Wife told Cromer she did not want to get a full-time job because Husband should have to take care of her. Cromer said he and Wife had conversations about the 90-day rule, and Wife was well-versed in the South Carolina family court guidelines.
  • Brown further testified Wife told her “she knew she had to stay somewhere when she was with [Cromer], that she could not stay at his house 90 consecutive days because that was in their original divorce agreement.” Brown testified that her perception was Wife lived with Cromer because she had things at his house, she was always there when she called, and they had family functions at his house.

The Court of Appeals noted Wife’s relationship with Cromer was relevant to show Wife’s pattern of separating to avoid the 90-day rule. In terminating Wife’s alimony, the Court of Appeals held,

While it is true Husband did not present proof that Wife cohabitated with a paramour for a continuous period of 90 days, contrary to the family court we find he did present testimony that Wife intentionally separated from Erickson to avoid the 90-day requirement. After our de novo review, we find substantial evidence was presented in this case that Wife had a history of living with her boyfriends and separating to avoid the 90-day rule.

Because it terminated Wife’s alimony, the Court of Appeals did not address Wife’s argument that her alimony should not have been reduced. It also reversed Wife’ s award of attorney’s fees and remanded the matter back to the family court to address both parties’ claims for attorney’s fees. It further remanded Husband’s request for reimbursement of alimony he paid after Wife’s continued cohabitation began.

While McKinney notes how hard it is to prove continued cohabitation, Moore may be the case that demonstrates it is possible. Certainly Wife’s attempts to evade the 90-day rule coupled with her attempts to have witnesses either not testify or be deliberately vague and evasive in their testimony, leads to a conclusion that Wife was not credible in her testimony regarding cohabitation and that if there was not 90 days of continued cohabitation it was simply because Wife was periodically separating to circumvent the rule.

One of my harder tasks practicing family law in South Carolina is advising ex-spouses with alimony obligations whether and how much their obligation might change based on reduced income. The July 27, 2016 Court of Appeals opinion in Woods v. Woods, 418 S.C. 100, 790 S.E.2d 906 (Ct. App. 2016) does not provide additional clarity on this topic.

In Woods, Husband agreed to pay Wife $8,000 per month in alimony at the time of their 1999 divorce. The agreement contained two provisions regarding modifiability of alimony that appear to partially contradict the other:

The parties agree that this permanent, periodic alimony shall not be modifiable by [Husband] for a period of [three] years from the date of the approval of this Agreement so long as [Husband’s] total gross income (as defined by the Internal Revenue Code, including but not limited to tax exempt income) is not less than [$500,000] per year. In the event that [Husband] conveys any of his interest in Gilliam & Associates, Inc., in any form, including but not limited to an acquisition, merger, recapitalization, restructure, or other transference or disposal in any fashion whatsoever which provides a benefit to [Husband] and which reduces his income to below [$500,000] per year, [Husband] acknowledges that this conveyance shall be subject to review by the Family Court for the Second Judicial Circuit for the purposes of a reduction of alimony.

And

It is the intent of the parties that the provisions of this Agreement shall govern all rights and obligations of the parties as well as all rights of modification; and, further, that the terms and conditions of this Agreement and any Order approving the same shall not be modifiable by the parties or any court without the written consent of the Husband and Wife. The parties specifically agree, except as set forth herein, that neither the Family Courts of the State of South Carolina nor any other court shall have jurisdiction to modify, supplement, terminate, or amend this Agreement or the rights and responsibilities of the parties hereunder, except as to child support, custody and visitation, which the parties understand to be modifiable as a matter of law.

In 2010 Husband filed an action to reduce his alimony, claiming his income had substantially decreased. Wife sought to dismiss Husband’s action, arguing that the second paragraph of the agreement referenced above deprived the family court of jurisdiction to modify alimony. Ultimately the family court denied Wife’s motion to dismiss, reduced Husband’s alimony to $4,000 per month, and denied Wife’s request for attorney’s fees. It further ordered that alimony would be further reduced by the amount of social security benefits to which Wife would be entitled when she reaches age sixty-two even if she defers taking benefits at that time.

Husband filed a motion for reconsideration, seeking retroactive application of the reduced alimony amount. His attorney initially served Wife’s attorney with this motion via facsimile, and Wife’s attorney stipulated that he received this motion via facsimile. The family court granted Husband’s motion and Wife asked the family court to reconsider this ruling, holding that Husband’s motion was untimely. Ultimately the family court found the motion to be timely. Wife appealed both the final order and the order from Husband’s motion to reconsider.

The Court of Appeals first determined that the parties’ divorce decree did not divest the family court of jurisdiction to modify alimony. It noted that one provision of the divorce decree specifically anticipated alimony modification if Husband’s income was reduced.

However, the Court of Appeals reduced Husband’s alimony reduction to $6,000.00 per month. It acknowledged Husband’s reduction in income but questioned whether it was unanticipated. It noted Wife’s failure to seek employment since 1999. It noted that Husband’s alimony obligation often exceeded his annual income. In setting alimony at $6,000 the Court of Appeals appeared concerned over Wife’s disincentive to work.

The financial analysis provided in this opinion makes it difficult to understand how the Court of Appeals settled on the $6,000 figure. The analysis at one point notes:

Wife’s financial advisor testified … [i]f Wife received no alimony and liquidated her approximately $838,000 in assets, she estimated the money would last approximately seven years at her current rate of a little over $5,000 in monthly expenses.

Liquidating $5,000 per month for 84 months would be $420,000. Even assuming a 30% tax rate and no return on the remaining assets, it isn’t clear how $838,000 in assets would be liquidated at that rate in that time period.

In a subsequent section addressing attorney’s fees, the Court of Appeals noted:

Husband’s net worth increased from approximately $1 million at the time of the divorce to $3.3 to $3.4 million at the time of the alimony modification trial. During that same period, Wife’s net worth decreased from approximately $1 million to $837,437, and she had redeemed a total of $86,651 from her investments to pay her litigation expenses.

Such information might have been useful to the alimony modification analysis. At $8,000 per month, Husband’s alimony obligation is just under 3% of his net worth annually. His $2.3 million increase in net worth since the divorce is sufficient to cover almost 24 years of his original alimony obligation. Suddenly any alimony reduction seems generous. On the other hand, the original obligation does appear to have been a disincentive to Wife working.

The Court of Appeals reversed the family court for setting an automatic alimony reduction when Wife reached age 62. It noted that Wife was not required to seek Social Security benefits at that time, and that the family court could not anticipate Husband’s ability to pay at that time. The Court of Appeals found Husband’s motion to reconsider was timely, based on Wife’s attorney’s acknowledge of timely receipt of that motion via facsimile. It noted that service via facsimile was neither specifically authorized nor prohibited, but held that “[a]ctual and timely service defeats any claim that service was not in accordance with the Rules.”

Finally the Court of Appeals required Husband to contribute one-half of Wife’s attorney’s fees and costs in the amount of $48,835.00, noting that “Husband was in a better financial position to pay his own attorney’s fees and to contribute toward a substantial portion of Wife’s fees.”

Two takeaways from Woods. First, Woods demonstrates the trap divorcing spouses fall into when they enter agreements with language that appears to divest the family court of jurisdiction to modify alimony except by agreement. I have seen similar “boilerplate” language in numerous separation agreements and do not believe a supporting spouse ever believed he (it was always a he) was waiving his right to seek alimony modification, but merely indicating that he couldn’t unilaterally change his alimony unless his ex-wife agreed. If parties intend to divest the family court of its statutory authority, I believe the language doing so should be explicit and prominent–much like the required language for agreements requiring arbitration.

Second, it is rarely a good idea to seek to reduce an alimony obligation when the supporting spouse can maintain his or her (generally his) lifestyle under the current obligation. Here, Husband has spent $150,000 on his own attorney’s fees and costs, and is required to pay $48,835 of Wife’s fees and costs, all to see his alimony reduced by $2,000 per month. Not considering the lost income from divesting almost $200,000 to pay fees, it will be 100 months until he breaks even. And that does not even consider the stress and time devoted to this litigation.

On July 22, 2015, three and a half years after the Court of Appeals remanded the family court’s increase in an Ex-Wife’s alimony to $1,547.65 per month in the case of Roof v. Steele, 396 S.C. 373, 720 S.E.2d 910 (Ct. App. 2011), the Court of Appeals, in the case of Roof v. Steele, 413 S.C. 543 776 S.E.2d 392 (Ct. App. 2015) set the obligation at $1,550 per month. That’s a whole lot of work for what ended up being a $2.35 per month increase.

In the original Roof case, Ex-Wife had sought an alimony increase when her Ex-Husband was no longer able to provide her health insurance through his employer. The family court increased Ex-Wife’s alimony award by the amount health insurance would cost her, and Ex-Husband appealed. The Court of Appeals held that Ex-Wife’s inability to remain on Ex-Husband’s health insurance was an unanticipated substantial change of circumstances but that merely ordering an alimony increase sufficient to cover that expense was not appropriate.

By the time of remand Ex-Husband’s income had increased from $5,000 per month during the marriage to approximately $6,755 per month plus an annual $7,600 incentive bonus. Ex-Wife’s income at a frame shop she ran with a partner was $1,000 per month. An insurance agent testified the current cost to insure Ex-Wife would be $1,612.27 monthly. However, she anticipated once the Affordable Health Insurance Act enrollment began, Ex-Wife could be covered for approximately $640 to $720 per month.

Despite evidence that Ex-Wife’s medical condition limited her employment, and limited her ability to work full time, the family court imputed her minimum wage. The family court further found she failed to mitigate her medical expenses by not applying for Social Security Disability or Medicaid (Ex-Wife indicated a belief that she could not remain self-employed if she received these benefits). Faulting Ex-Wife as being wilfully complacent on these issues, it awarded her $761.51 per month in alimony and ordered her to reimburse Ex-Husband overpayment since the remand. She appealed.

The Court of Appeals found the family court’s factual findings on Ex-Wife’s income and mitigation of expenses were not sustained by the record. Ex-Wife’s numerous medical conditions meant that she could not work set hours and therefore should not be imputed minimum wage. The Court of Appeals further found that Ex-Wife’s failure to apply for these benefits should not affect the alimony award. It increased her alimony award to $1,550 per month. Since there was no longer an overpayment no reimbursement was required.

When Ex-Husband obtained a reversal in 2011, it is doubtful either party thought his obligation would basically be unchanged after remand. The expense–and for Ex-Wife and her attorney, the tenacity–to fight 3 ½ years to reach basically the same result must strike all parties as highly ironic.

In 2012 South Carolina amended the alimony modification statute, S.C. Code § 20-3-170(B), to include specific factors for the family court to consider on whether to modify or terminate alimony when a supporting spouse retires. Those factors are:

(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 code section, and the case of Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004), authorize a request to modify or terminate alimony based upon retirement to be brought on a motion in the original case, although Smith suggests “filing a new action for a modification may be preferable.” Certainly when the supporting spouse wishes to develop evidence to support the modification claim, or when factual disputes are likely, a new action is advisable. If the supporting spouse wishes to modify or terminate alimony prior to trial, a motion for temporary relief can always accompany the new action.

As of April 17, 2015, no reported South Carolina cases interpret S.C. Code § 20-3-170(B).

I occasionally get telephone calls from men whose ex-wife’s are receiving alimony but also appear to be living with a boyfriend.  They want to know if they can terminate alimony on that basis.  I am never optimistic.

In 2002, the South Carolina legislature amended S.C. Code § 20-3-150 to define the “continued cohabitation” necessary to terminate permanent periodic or rehabilitative alimony. As a result:

“continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.  The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

In the decade since this amendment, there have been seven reported South Carolina appellate decisions on this issue and none has found “continued cohabitation” sufficient to terminate alimony.  Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct. App. 2011); Eason v. Eason, 384 S.C. 473, 682 S.E.2d 804 (2009); Fiddie v. Fiddie, 384 S.C. 120, 681 S.E.2d 42 (Ct.App. 2009); Feldman v. Feldman, 380 S.C. 538, 670 S.E.2d 669 (Ct.App.2008); Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008); Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007); Degenhart v. Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct.App.2004).  Semken actually reversed the family court determination that there was continued cohabitation.  Today the Supreme Court dismissed its writ of certiorari in Biggins as improvidently granted.

There are numerous hurdles to proving ninety-day continuous cohabitation.  The ex-wife’s neighbors are rarely willing to testify against her.  Hiring a private investigator for a ninety-day period is prohibitively expensive.  Often a divorced wife and her boyfriend will maintain separate residences, even if they spend almost every night together, and these separate residences appear sufficient to defeat a finding of continued cohabitation.

Short of an ex-wife and her boyfriend sharing a lease without either keeping a separate residence and having both names on the utilities, or an admission by the ex-wife of continued cohabitation, I find it hard to conceive of the factual scenario in which I would likely obtain sufficient “proof” of  ninety-day “continued cohabitation” to terminate alimony.

If any readers have been parties or attorneys to a case in which the family court has terminated alimony based upon “continued cohabitation,” please post a comment describing the facts that led to this termination.  And to my alimony-paying readers who hope to terminate their obligation based on a claim on “continued cohabitation,” I wish you luck but wouldn’t hold out hope.

Some of the more cryptic opinions to come out of the South Carolina Supreme Court simply state “We granted a writ of certiorari to review the court of appeals’ decision in [case name]. We now dismiss the writ as improvidently granted.”

Between the request for certiorari and such brief dismissals, the petitioner and his or her attorney are whipsawed through emotions: the initial burst of hope when the Supreme Court grants certiorari; the concerted, thoughtful effort of crafting briefs; the zealous attempt to persuade the Supreme Court at oral argument of the injustice done by the Court of Appeals; and, finally, the crushing realization that the Supreme Court found your argument was so weak that it didn’t merit further discussion.  I imagine it would be less depressing to have certiorari denied than to have it granted but then dismissed as improvident.

When the Supreme Court granted certiorari in Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct.App. 2011), I was hopeful that it might provide some clarity to the 2002 amendment to S.C. Code § 20-3-150 that defined “continued cohabitation” for the purpose of terminating permanent periodic or rehabilitative alimony as:

mean[ing] the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.  The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

Since this amendment no reported appellate decision has found a supported spouse’s cohabitation met this requirement: not Biggins; not Eason v. Eason, 384 S.C. 473, 682 S.E.2d 804 (2009); not Fiddie v. Fiddie, 384 S.C. 120, 681 S.E.2d 42 (Ct.App. 2009); not Feldman v. Feldman, 380 S.C. 538, 670 S.E.2d 669 (Ct.App.2008); not Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008); not Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007); not Degenhart v. Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct.App.2004).

I was hopeful that Biggins might finally determine, that in at least one case, the evidence was sufficient to terminate alimony based on “continued cohabitation.” Instead it took seven days for our Supreme Court to go from oral argument to certiorari dismissal, 401 S.C. 362, 737 S.E.2d 502 (2013).  I am beginning to think that no fact pattern short of an admission of continued cohabitation by the supported spouse will be sufficient to invoke the alimony termination provision.

Next Tuesday I have the second Supreme Court oral argument of my career for a case in which I was granted certiorari.  Even before today I was wary of the dreaded “DISMISSED AS IMPROVIDENTLY GRANTED.”  My sympathies go out to Mr. Biggins and his attorney.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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