Family Law

Should South Carolina Adopt a "Formula" Approach to Determine Alimony?

By J. Benjamin Stevens

When I meet with potential clients, I tell them the things that people most often fight about are children and alimony.  Those two items are also the two main factors that drive the cost of litigation in Family Court.  By way of contrast, one of the things that is litigated the least is child support, because South Carolina uses Child Support Guidelines that are applied in virtually all cases.  While litigation takes place over some of the factors that are used in the Guidelines, such as a party's actual gross income for instance, once the factors are known, the amounts are plugged in and the amount of child support is known.

On the other hand, there are no such guidelines for alimony in South Carolina.  Section 20-3-130 of the SC Code of Laws provides that there are 13 factors that the Family Court must consider in making an award of alimony or spousal support.  In addition, there are six different types of spousal support that the Court can award.  In practice, judges tend to vary widely in their alimony awards, based on their view of the pertinent facts of each particular case.  I tell my clients that if you present the identical facts to ten different judges, you could easily get ten different answers as to what type, how much, and how long alimony must be paid.

Should South Carolina adopt a formula to answer those questions?  Some states have adopted formulas to determine spousal support instead of taking a "factor-based" approach.  Kelsey & Trask, a family law firm based in Massachusetts, published The Divorce Spousal Support Calculator: An Alimony Formula Resource, which is very helpful.  Jason C. Brown of the Minnesota Divorce & Family Law Blog says that he sees judges in his jurisdiction award approximately $1,000 per month in alimony for every $60,000 in income, exclusive of cases in which a child support obligation is required.

Mr. Brown proposes that "guidelines" be applied in alimony cases, as follows:

• The legislature should create a grid that resembles the child support "needs" grid. Take the combined income of the parties and indicate how much each party "needs" to meet their ongoing expenses. No debate about lifestyle or historical spending.
• If the requesting spouse has sufficient income to meet that 'need' grid value, no alimony. Case closed.
• Assuming they establish a case of "need" on the grid, the next question involves the amount of the obligation.
• As to "amount," a simple guideline that requires payment of $1,000.00 for every $5,000.00 in gross monthly income can serve as a cap. It is generally assumed that an individual can earn at least $20,000 per year (1.5 times minimum wage). Simple math determines how much the obligor must pay.
• As to duration, keep it simple: alimony payments will be paid for a period of time equal to one-half of the marriage.

I find his approach to be an interesting one, but I have not yet decided whether I agree or not.  My experience has been that other factors can (and should) be taken into consideration, and I have not yet seen a formula that can adequately do so.  For instance, if a spouse encounters health problems or becomes disabled, should that spouse be treated just the same as an otherwise healthy one?  I appreciate Mr. Brown initiating this discussion, as I believe it is worthwhile.  You can read more about his proposal by clicking here.  I also invite and welcome my readers' comments and thoughts about this subject.

Full post as published by SC Family Law Blog on December 01, 2010 (boomark / email).