Modification of Alimony in South Carolina
South Carolina has a stated preference for periodic (permanent) alimony, which means that alimony must be paid for as long as the parities remain alive and unmarried. We do have rules to allow for a subsequent modification or termination, but they are tricky.
Only two types of alimony in South Carolina are subject to modification once a divorce decree has been issued: Periodic Alimony and Rehabilitative Alimony. In this post I will briefly discuss what a person mush show in order to request a modification or termination of periodic alimony.
South Carolina law states that periodic alimony can be modified when the “…circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed since the rendition of such judgment…” S.C. Code Ann. § 20-3-170. How much of a change, when did the change happen, how did the change happen, etc., are factual issues that must be considered and ruled upon by the Family Court.
It is common for a modification request to be met with the objection that basis of the request was actually something that was, or should have been, anticipated at the time of the divorce, and should therefore be denied. In fact, “the requirement that a change in circumstances be unanticipated in order to justify modification of an alimony award is a long standing and well established rule of law dating back more than thirty years.” Schadel v. Schadel.
But not so fast. In Roof v. Steele the court of appeals ruled that this issue of “anticipation” was not so cut and dry:
In light of Calvert and subsequent Court of Appeals cases, courts usually consider only those changes that were unknown to the parties at the time of the separation decree in determining if a substantial change has occurred warranting a modification of alimony. The original divorce decree generally addresses these expected changes. However, there are some future changes which may be in contemplation of the parties at the time of the decree but, due to other considerations, cannot be addressed at that time in the divorce decree.
In other words, just because an event is anticipated at some future time does not mean that a request for modification will automatically fail. For example, consider a stituation where a couple has two children ages 6 and 8 and the divorce decree provides Wife with both child support and alimony. Even though both parties knew at the time of the divorce the children would grow older and eventually leave high school, 12 years will have passed since the divorce decree. This is what is meant by “other considerations” that can not be addressed at the time of the divorce decree.
Even if a future event was anticipated at the time of the divorce, other considerations may not have been able to be anticipated at the time of the divorce. These “other considerations” will have to be tried to the Family Court Judge who will then make the call regarding the propriety of the modification request. Or, if the parties choose to proceed in a more dignified manner, they can resolve the issue using the collaborative practice model or mediation. Either way, as long as there is a good faith basis for the request, the issue will need to be resolved.
My next post will discuss modification of rehabilitative alimony.