In 2012 South Carolina amended the alimony modification statute, S.C. Code § 20-3-170(B), to include specific factors for the family court to consider on whether to modify or terminate alimony when a supporting spouse retires. Those factors are:
(1) whether retirement was contemplated when alimony was awarded;
(2) the age of the supporting spouse;
(3) the health of the supporting spouse;
(4) whether the retirement is mandatory or voluntary;
(5) whether retirement would result in a decrease in the supporting spouse’s income; and
(6) any other factors the court sees fit.
This code section, and the case of Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004), authorize a request to modify or terminate alimony based upon retirement to be brought on a motion in the original case, although Smith suggests “filing a new action for a modification may be preferable.” Certainly when the supporting spouse wishes to develop evidence to support the modification claim, or when factual disputes are likely, a new action is advisable. If the supporting spouse wishes to modify or terminate alimony prior to trial, a motion for temporary relief can always accompany the new action.
As of April 17, 2015, no reported South Carolina cases interpret S.C. Code § 20-3-170(B).
This case is an interesting one as it addresses the problem that can arise regarding retirement dates for individuals who are payor spouses and who have pensions. Often, a party who has a pension uses a later retirement date when providing the value of a pension for equalization purposes. However, this later becomes a problem when the party decides to retire earlier than they had represented during the settlement discussions as is what happened in this case. The decision in this case recognizes the inequity that can arise and the repercussions that the differing pension values can have for support purposes. It also provides the legal community with direction as to how a party’s pension income should be determined for support purposes when they decide to take an earlier retirement date than the date used for equalization purposes. This case provides counsel with an interesting analysis to use in cases such as this one.
Can alimony be terminated if the paying spouse becomes disabled under Social Security Administration? He has became disabled, 58 years of age,
cannot work, receiving SSI.
Hello – I would also like to know if lump sum alimony, paid over 10 years, can be terminated if the payor becomes disabled under SSA at age 59 and cannot work. :)
Greg,
As a practical matter, the Charleston County Family Court makes us file a new action if the original Order is more than 1 year old.
This case is an interesting one as it addresses the problem that can arise regarding retirement dates for individuals who are payor spouses and who have pensions. Often, a party who has a pension uses a later retirement date when providing the value of a pension for equalization purposes. However, this later becomes a problem when the party decides to retire earlier than they had represented during the settlement discussions as is what happened in this case. The decision in this case recognizes the inequity that can arise and the repercussions that the differing pension values can have for support purposes. It also provides the legal community with direction as to how a party’s pension income should be determined for support purposes when they decide to take an earlier retirement date than the date used for equalization purposes. This case provides counsel with an interesting analysis to use in cases such as this one.
Can alimony be terminated if the paying spouse becomes disabled under Social Security Administration? He has became disabled, 58 years of age,
cannot work, receiving SSI.
Hello – I would also like to know if lump sum alimony, paid over 10 years, can be terminated if the payor becomes disabled under SSA at age 59 and cannot work. :)
Thank you!