Is permanent alimony a good thing or a bad thing?
This was the question from an old friend regarding my last post. South Carolina is one of the few states remaining where permanent alimony is the primary option that must be considered by the court when alimony is at issue. Is this a good thing or a bad thing?
The problem with our strong preference for permanent alimony is that it prevents judges from crafting orders that are unique to the issues involved with the individual families that come before them. Permanent alimony is akin to mandatory minimum sentencing in criminal court: regardless of the facts of the individual case, a court must impose a certain minimum sentence for everyone with similar charges.
This is a “one size fits all” policy. There are certainly times when permanent alimony is appropriate. Very long term marriages where one party (usually the wife) has spent her prime working years in the home raising children, caring for the home and taking care of her husband. Her employability at age 50 or so will be minimal and she will very likely need some form of support until she reaches social security eligibility, and perhaps beyond. (Permanent alimony does not automatically end at retirement!)
On the other hand, as in the facts of the Ricigliano case, certain people don’t need (or even want) an award of permanent alimony, but do need short term financial assistance until they can get back into the workforce.
Generally, the purpose of alimony is to place the supported spouse, to the extent possible, in the position she enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct.App.2001). In Ricigliano, Husband had been employed during the marriage and had earned a good income. Due to a relatively recent relocation to South Carolina, he had stopped working to care for the kids. Judge Wylie (one of our most experienced, respected and fair judges) tried to craft an order that would help Husband get back on his feet financially for a short term; which was all Husband needed.
Mr. Ricigliano had really never been a “supported spouse” for any length of time during the marriage and could place himself in the position he “enjoyed” during the marriage once he obtained a decent job. An award of permanent alimony was simply not appropriate, but some form of temporary financial assistance would be needed. However, the Court of Appeals told Judge Wylie that he must impose the “mandatory minimum sentence” if he was going to award any form of alimony.
South Carolina’s preference for permanent periodic alimony is antiquated and appropriate to middle 20th century norms where is was customary for wives to be supported for life by their husbands. This is clearly not the case today. Women are graduating from colleges, law schools and medical schools in equal proportion to men. It is much less common these days for women to be homemakers, and more common for both parties to work and have careers.
When Husband and Wife are both working and have careers, how then can a judge reasonably make an award of alimony when he only has one option? Furthermore, if a person knows they are on the hook for permanent periodic alimony it will be very easy for them to perform a “cost v benefit” analysis: should they litigate the divorce and try to paint their spouse in a bad light that could make them appear unworthy or not entitled to alimony? For example, if a 45 year old executive realizes she may be required to pay her 46 year old husband $1,000 per month in permanent periodic alimony all she has to do is add up the numbers: $12,000 per year for 20 years is $240,000! She may be more than willing to pay her attorney $50,000 to smear her husband and try to avoid alimony. If she wins, she gains about $190,000. An easy call.
Litigation in family court is extremely destructive to the families in our communities and all steps should be taken to reduce litigation whenever possible. An organization formed this year to try to change the alimony laws in South Carolina, South Carolina Alimony Reform. We need to widen the options for judges so that they can craft support awards in a rational way that meet the specific needs of today’s families. This will very likely help to reduce litigation over alimony and provide a way for people to create financial plans that meet the specific needs of their family.