Adultery as a Complete Bar to Alimony in South Carolina
In South Carolina, we have four “fault” grounds and one “no-fault” ground for divorce as defined by S.C. Code Ann. §20-3-10 (1976) as follows:
1) Adultery;
2) Desertion for a period of one year;
3) Physical Cruelty;
4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness causes by the use of any narcotic drug; or
5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.
An individual may choose to proceed with a fault ground divorce for a number of reasons. One consideration is the time it takes them get the divorce. In the case of adultery, physical cruelty and habitual drunkenness, S.C. Code Ann. § 20-3-80 (1976) allows an individual to bring their divorce action as soon as the fault ground arises. Furthermore, one may be granted a divorce within three months after filing such an action. Practically speaking, however, the divorce does not always get granted that quickly as all other issues arising out of the marriage other than the divorce itself (i.e. custody, visitation, property division, support, etc.) may not be agreed upon or have been properly litigated within a three month time frame.
Other reasons that family court litigants choose to file for a fault ground divorce include, but are not limited to, simply creating a record that their spouse’s actions led to the breakdown of the marriage, to increase the likelihood of being awarded attorney’s fees on a temporary and/or final basis, or in a general attempt to appear favorable throughout the litigation process.
However, one of the main reasons an individual and their attorney may choose to go forward with a fault ground in their divorce action, arises in situations where the spouse alleging fault could be on the hook for alimony. Alimony is an award of monetary support from one spouse to another as a substitute for the support which is normally incident to the marital relationship. See. Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981). The primary goal in awarding alimony is to put spouse receiving alimony in a position to enjoy a similar standard of living he or she enjoyed during the marriage.
S.C. Code Ann. §20-3-130(C) (1976) lays out the factors a family court judge will consider in making an award of alimony as follows:
In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:
(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 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 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, 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 place 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.
As you can see by the factors delineated above, marital misconduct or fault is but one of the factors which will be considered. However, S.C. Code Ann. §20-3-130(A) (1976) specifically states in pertinent part that “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) 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.” Whereas other fault grounds could still be considered as to whether or not a spouse who may otherwise be entitled to alimony or spousal support will in fact get the same; adultery is a complete bar to such support according to our statutes.
Although there is sound rationale for awarding alimony and/or spousal support to the payee spouse in many cases, you may be shocked (read ‘not shocked at all’) to learn that you will be hard pressed to find a payor spouse who is happy to pay it. I can recall a few ultra-amicable cases where the payor spouse voluntarily paid spousal support or alimony because they “wanted to do the right thing” or “wanted to give their ex a chance to get back on their feet.” However, you are much more likely to find an individual who shares the same sentiment as American Journalist/Humorist, Arthur “Bugs” Baer, who famously quipped that ”Alimony is like buying oats for a dead horse.” Now, that may seem a bit harsh; but tell that to an individual who is looking at the prospect of paying several thousand dollars per month (or any amount for that matter) in permanent period alimony to a spouse they know has engaged in adultery. THAT is a reason to proceed on the fault ground of adultery.
