Until November 29, 1990, the rule was that an adulterous spouse does not receive alimony, even if the adultery occurred after the separation.

See Chapter 13, Dating, page 35. Then the legislature amended the statute that now states:

No alimony may be awarded a spouse who commits adultery before the earliest of two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order approving a property or marital settlement agreement between the parties.8

The better practice, and my advice, is not to engage in sexual acts with anyone other than your spouse until your divorce is final.

South Carolina recognizes four types of alimony: Permanent periodic alimony simply means payments every week or month for an indefinite period, usually until the death of one party or the remarriage or continued cohabitation of the party receiving alimony; Lump sum alimony is the payment of one fixed sum as alimony, however, this fixed sum may be paid in periodic installment payments; Rehabilitative alimony consists of regular payments for a specified period to allow the receiving spouse to obtain additional training or education to become self-supporting; and Reimbursement alimony is to compensate an innocent spouse for financial contributions to the marriage, including educational expenses and living expenses.

The old rule on taxation and deductibility of alimony was that, in general, the alimony recipient paid income tax on alimony while the payor claimed payment of it as a deduction. Effective January 1, 2019, Congress changed the rule, neither taxing nor allowing the deduction of alimony payments. When setting alimony, Judges understand the tax consequences and make adjustments accordingly.

The alimony statute requires the family court to consider the following factors that are the exact wording of the statute:

(1) 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;

(2) the physical and emotional condition of each spouse;

(3) the educational background of each spouse, together with the need of each spouse for additional training or education in order to achieve that spouse's income potential;

(4) the employment history and earning potential of each spouse;

(5) the standard of living established during the marriage;

(6) the current and reasonably anticipated earnings of both spouses;

(7) the current and reasonably anticipated expenses and needs of both spouses;

(8) the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

(9) 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;

(10) marital misconduct or fault of either or both parties, whether or not used as a basis for 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, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took palace subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(11) the tax consequences to each party as a result of the particular form of support awarded;

(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

(13) such other factors the court considers relevant.

My experience is that most judges place great weight on the length of marriage, the disparity in incomes, and the standard-of-living during the marriage. Many judges will not consider alimony in a marriage of less than ten years.

The court awards lump sum alimony where unusual circumstances make it preferable to periodic alimony. An example might be when a husband has, or is about to receive a large sum of money, and there is reason to believe that he will flee the state to avoid payment, will dispose of his assets, or is otherwise unreliable.

In proving a case for rehabilitative alimony it is necessary to show the expected costs of the spouse's additional education or training, the time that it will take, and the reasons why it is expected to make the spouse self-supporting. The factors used in determining periodic alimony also apply.

When alimony is the issue, what I am really trying to show the judge is that my client is a good person who was a good spouse, who acted responsibly in the marriage and deserves to be treated well in the breakup of the marriage.

My Favorite War Stories #17:
An Expensive One Night Stand

My client was a good woman who left a promising and lucrative career to be a step-mother. Even her husband admitted she was a very good step-mother. Even before the separation the husband flaunted his girlfriend, taking her to public events and providing an apartment for her. Because the husband earned a lot of money, I expected a large award of alimony for my deserving client. Several days before the final hearing, after about eight months of separation, the husband’s private detective found my client with another man. My client kissed away a lot of alimony with a one night relationship. The result was harsh but it was consistent with the laws and public policy of South Carolina.