With the topic of divorce in Greenville, S.C. comes a host of issues both financial and emotional in nature. A primary concern for many is alimony. That is, whether a former spouse will be ordered to provide financial support to the other partner once the divorce is finalized. Under South Carolina’s divorce law, alimony is available to either spouse, dependent on the circumstances, and any alimony awarded, including duration and amount, is left to the judge’s discretion. Below, we discuss what you need to know about alimony.
Factors That Affect Alimony in Greenville, S.C.
While alimony may be at the judge’s discretion, the state’s statute describes a range of factors that a judge must consider when making a determination, such as:
- The standard of living during marriage
- How long the marriage lasted and the ages of each spouse at the time of marriage and also at the time of divorce
- Each partner’s employment history and potential income
- Each spouse’s emotional and physical condition
- Child custody, if applicable
- Each partner’s level of education and need for further training or education to achieve his or her full earning potential
- Any marital misconduct that took place
- Each person’s current and reasonably anticipated earnings, expenses, and needs
- Tax consequence to each person as a result of a financial award
- Each person’s nonmarital and marital property
- Whether or not either partner has a previously-existing support obligation
Most divorces in Greenville are no-fault. While the existence of fault is a factor that the judge will consider, it will not prevent the award for alimony. Under the statute, alimony may not be awarded to an adulterous spouse.
There is no set formula for calculating spousal support. However, the determination rests with the discretion of the trial court judge. Financial support is granted only when one spouse shows a need for the support and the other shows the ability to pay.
The state recognizes four types of alimony:
- Lump Sum
The court may award a lump sum amount that is to be paid all at once or in installments. The obligation is terminated upon the death or either spouse, but not in cases of cohabitation or remarriage.
- Periodic Alimony
This type of award is paid out for a duration as specified by the court and can either be permanent or temporary. The obligation ends when a spouse dies or when the recipient of the alimony cohabits or remarries someone else. Even if the award is permanent, the spouse who is paying may request a modification due to drastically changed circumstances. For instance, if the paying spouse loses his or her job.
- Reimbursement Award
This type of alimony is awarded based on events or circumstances that occur during the marriage and where the court feels it is appropriate to reimburse a spouse from the future earnings of the other spouse. This kind of award may be deemed appropriate if, for example, one partner worked to support the family while the other studied towards a degree.
- Rehabilitative Alimony
In cases of divorce in Greenville, S.C., this type of award is only short-term and aimed at providing the receiving spouse with support while he or she attends a training or education program to acquire skills to become self-supporting.
What About Alimony and Taxes?
When it comes to tax returns, alimony is treated differently from child support. Alimony is tax deductible to the person paying it and is included in the taxable income of the spouse receiving it. So, if the spouses have significantly differing incomes, there may be a few tax advantages to using alimony, even in instances where a judge would not usually award it.
In fact, the tax advantages can be so impactful that people who are going through divorce are tempted to label some other types of payments or settlements as alimony. However, the government does anticipate this, and it responds in the form of two tests. Firstly, the payment must be made in cash, and secondly, money orders or checks are acceptable, but not services or property. Further, alimony payments must be provided for in a written or divorce agreement and cannot be claimed during a year for which a joint tax return is filed. Alimony may not be paid during a time when both spouses live in the same residence, and the payment must be noted as alimony or spousal support.
What’s more, Congress recognized the temptation to label property settlements as alimony. That is why the 1984 Tax Reform Act has provisions that call for the recapture of any excess alimony that looks to be a property settlement. The rules provide that if the alimony is deemed to be excessively front-loaded, in other words, concentrated too much within the first couple of years of payment, the paying spouse is obliged to recapture it – include it in their income.
Typically, you are safe if the alimony does not decrease by over $10,000 during any of the first three years in which it is paid.
Can Alimony Be Terminated or Altered?
Unless there is an agreement stating otherwise, alimony can always be modified. However, to change alimony in South Carolina usually requires a showing of a fundamental change in a spouse’s circumstances, and it is unusual to see the award increased just because the paying spouse has had improved fortune. Typically, cases where the payor’s income has taken a downturn since paying alimony, for reasons the court believe to be not self-imposed, could see the court reduce alimony or even eliminate it altogether.
Alimony ceases when either spouse dies, when the spouse receiving the money remarries, or even cohabits for a minimum period of ninety days. Cohabiting is considered more than just spending a night together, though, and relates more to a pattern of living in the same dwelling as evidenced by voting registration, the delivery of mail, eating meals together, and storage of clothing. Further, alimony may be stopped by an agreement of both parties entered in a court or via a court order showing that payment is no longer required.
Are You Getting Divorced?
If you are going through a divorce or considering one, whether or not there should be ongoing support between you and your spouse can be a hotly contested issue. Talk to a knowledgeable family law attorney at Elliott Frazier who has the experience to represent your best interests at a difficult time in your life. The lawyers can help you navigate the divorce courts in Greenville, and ensure you receive the alimony you may be entitled to.