One common obstacle in a divorce or separate maintenance proceeding is determining if alimony should be paid by one spouse to the other—and if so, how much.
Clients often ask us whether they are going to have to pay alimony, or whether they are entitled to receive alimony. The answer is not so easy. When dealing with child support, for most people (parties who have a combined income of less than $360,000 a year), it is sometimes as easy as plugging in the numbers into South Carolina’s child support guidelines. If the same numbers are presented to the various judges across the state for purposes of child support, the vast majority of the time the courts would render an award of child support in the same amount.
The law in South Carolina has established guidelines for child support that the judges rely upon. Alimony is different, because there are no similar guidelines. Each case is treated differently, and the courts will weigh the unique factors as presented in each individual case and will make a determination. It is very possible that the same factors could be presented to ten different family court judges, and the judges would set ten different awards.
The law in South Carolina says the court shall consider the following factors in making such a determination:
- The duration of the marriage, together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
- The physical and emotional condition of each spouse;
- The educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;
- The employment history and earning potential of each spouse;
- The standard of living established during the marriage;
- The current and reasonably anticipated earnings of both spouses;
- The current and reasonably anticipated expenses and needs of both spouses;
- The marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- Custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
- Marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, with some exceptions;
- The tax consequences to each party as a result of the particular form of support awarded;
- The existence and extent of any support obligation from a prior marriage, or for any other reason of either party; and
- Such other factors the court considers relevant.
Each of these factors is subjective, and—even if we don’t consider the “wild card” nature of the thirteenth factor—each family court judge may give greater weight to one category over another. After the Court weighs the above factors and applies them to the facts of each case, the judge may or may not award alimony, and, if he does, he will determine the amount to be paid.
Each case is different. If you believe alimony will be an issue in your case—whether you would be the one paying it or receiving it—you should take steps to protect your rights. If you would like to speak to a family law attorney about your case, feel free to call us at 864.582.0416 or toll-free at 888.230.1841 to schedule a consultation.