Representing The (Innocent) Primary Wage-Earner in Custody and Divorce (March 1999)

Co-authored with Conrad Falkiewicz; Published in South Carolina Lawyer, March 1999

A primary wage-earner who does not precipitate the break-up of the marriage deserves to maintain the marital lifestyle and preserve his or her relationship with the children. Substantial attention is paid in the case law to maintaining the non-wage-earner or “homemaker” in the marital lifestyle and to preserving the homemaker’s relationship with the children. Using the same theories an attorney can make sure the wage-earner keeps enough income and marital assets to maintain the marital lifestyle and continue a relationship with his or her child or children.

South Carolina law describes marriage as both a contract (S.C. Code Ann. § 20-1-510, 530) and an “economic partnership.” E.g., Mallett v. Mallett, 323 S.C. 141, 473 S.E.2d 804, 810 (Ct. App. 1986). Spouses in traditional marriages often sacrifice opportunities and develop skills in a complementary fashion. “Homemakers” forego career development in the expectation that their spouses will take care of their families’ economic needs. “Wage-earners” pursue careers while leaving most domestic and child care tasks to their spouses. In a lengthy marriage both spouses become dependant upon the other: one unable to earn a sufficient income to support the lifestyle and the other unable to run the household or provide adequate full-time child care. Even in less traditional marriages, divisions between wage-earner and homemaker typically remain. When a lengthy marriage ends, one or both parties’ expectations are dashed. Further, the expense and effort of maintaining two households means the parties face a reduction in living standards and the issue becomes how the diminution should be allocated.

The Importance of Fault

Issues of fault permeate traditional-marriage divorces. Fault is a factor in dividing marital property. S.C. Code Ann. § 20-3-620 (B)(2). It is a factor in alimony. S.C. Code Ann. § 20-3-130 (C)(10). Fault is also relevant in child custody determinations, so long as the parental misconduct is detrimental to the child. E.g., Jones v. Jones, 290 S.C. 49, 348 S.E.2d 178, 179 (Ct. App. 1986) (wife’s drug use and adultery factor in child custody award to husband).

But “fault” has a different meaning in alimony and equitable distribution than it does as grounds for divorce. Behavior that is not ground for divorce under S.C. Code Ann. § 20-3-10 may still be the cause of the marital breakup. Consider a situation in which one spouse is imprisoned for life upon a conviction for first-degree burglary, after which time the other spouse begins cohabitation with someone of the opposite sex. The burgling spouse would have grounds for divorce, though few would argue that this criminal behavior did not cause the marital breakup. A wage-earner’s behavior which creates a fault ground for divorce may have been precipitated by the homemaker’s financial irresponsibility, unrealistic demands or unconcealed contempt. Though not excusing the wage-earner’s cheating, hitting, drinking or drugging, the other parties’ misbehavior can still be the underlying cause of the marital breakup. One should not always equate a wage-earner’s behavior giving rise to a “fault” divorce ground with “fault” as the cause of the marital breakup.

Most South Carolina appellate decisions dealing with the dissolution of lengthy marriages involve at-fault wage-earners and innocent homemakers. In these circumstances it does not seem unfair to require substantial support by the wage-earner, even if the wage-earner faces a major diminution in lifestyle. However, where the wage-earner is the innocent spouse (regardless of but especially in cases of the homemaker’s fault), any post-divorce diminution in lifestyle seems unjust.

Alimony

If marriage is a contract, fault is its breach. Though a substantial equitable distribution award is consistent with the ending of the marital partnership, an award of alimony (i.e. future performance of an agreement to support) appears inconsistent with a finding of fault. Yet marriage is the rare contract which can be breached while continuing performance is demanded by the breaching party. Other than instances of adultery, where alimony is generally barred (S.C. Code Ann. § 20-3-130(A)), alimony can be, and at times must be, awarded despite a finding of fault against the supported spouse. See, Belton v. Belton, 325 S.C. 456, 481 S.E.2d 174, 176 (Ct. App. 1997) (remanding for award of permanent alimony despite finding of supported spouse’s fault in marital breakup).

Commentators have had difficulty discovering a consistent rationale or policy behind South Carolina’s alimony cases. Roy T. Stuckey and F. Glenn Smith, Marital Litigation in South Carolina at 203-04 (2^nd ed. 1997). Maintenance of the standard of living established during the marriage is a major factor in alimony. S.C. Code Ann. § 20-3-130 (C)(5). Yet, this goal is rarely attainable. As Stuckey notes, “[w]hile this objective may be laudable, the reality is that two households cost more to operate than one household. After a divorce, both spouses should expect their standards of living to diminish.” Marital Litigation, supra, at 204. Appellate cases frequently describe the homemaker’s need for funds to support the living standard. See, e.g., Belton, supra. Rarely if ever does the wage-earner make the same argument, even though under the alimony statute, the wage-earner is equally entitled to maintain the standard of living. Where the wage-earner neither desires nor precipitates the marital breakup, it is the wage-earner, not the homemaker, who should be able to maintain the marital living standard. This maintenance of living standard should also recognize and compensate for the wage-earner’s loss of the homemaker contribution.

In representing the not-at-fault wage-earner, a practitioner should show how an award of alimony would diminish the wage-earner’s living standard. Further, in looking at maintaining living standards, one should look to the loss of the homemaker’s services as a loss to the wage-earner. South Carolina’s equitable distribution statute finds the homemaker’s contribution to be part of the acquisition, preservation, depreciation, or appreciation in value of the marital property. S.C. Code Ann. § 20-3-620 (B)(3). Typically, in a lengthy marriage, the courts find this homemaker contribution to be equal in value to the wage-earner contribution. E.g., Kirsch v Kirsch, 299 S.C. 201, 383 S.E.2d 254 (Ct. App. 1989); Johnson v Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988), cert denied , 298 S.C. 117, 378 S.E.2d 445 (1989); Leatherwood v Leatherwood, 293 S.C. 148, 359 S.E.2d 89 (Ct. App. 1987).

Though never presented as an issue in a reported South Carolina appellate case, the replacement value of lost homemaker services should be a substantial factor in mitigation of alimony awards which attempt to equalize the parties’ lifestyles. Clearly, homemaker services have substantial economic value. Where the wage-earner has set up housekeeping with a paramour, any claimed loss of homemaker services will be laughable. However, where an innocent wage-earner has lost homemaker services, the loss of this benefit should be presented to the court as a factor in setting alimony, especially if the homemaker’s contribution is a factor in the equitable distribution award. See, S.C. Code Ann. § 20-3-130 (C)(8) (“the marital …. properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action” is factor in award of alimony).

Custody for the Primary Wage-earner

Generally, custody is awarded to the primary caretaker. E.g., Clear v. Clear,  331 S.C. 186, 500 S.E.2d 790, 791 (Ct.App. 1998). There may be times when the primary wage-earner is a candidate for custody, especially if one can show the court that the wage-earner had a substantial caretaker role.

A homemaker’s unfitness often results in the wage-earner obtaining custody. See, e.g., Jones, supra. However, even absent homemaker unfitness, the wage-earner may be a candidate for custody. Often the same attributes that make someone an excellent wage-earner-sobriety, responsibility, diligence, education, honesty-make for an outstanding parent. By showing how these attributes are beneficial to the children, one can make a case for the wage-earner’s custody. In Parris v. Parris, 319 S.C. 308 460 S.E.2d 571, 572 (1995), a working father was awarded custody because he exhibited a more active role in the day-to-day activities of the child. In Radtke v. Radtke, 297 S.C. 260, 376 S.E.2d 275, 276 (1989), even though a working father had the children in full-time day care, his greater emotional stability and support network, along with his willingness to share transportation costs for visitation and agreeing to liberal visitation, mandated awarding him custody. A parent’s greater attentiveness to the educational needs of a child, especially a child with a learning disability, was a basis for changing custody in Glanton v. Glanton, 314 S.C. 58, 443 S.E.2d 810, 811-12 (Ct. App. 1994).

Recently enacted S.C. Code § 63-15-30 requires the court to consider a child’s reasonable preference for custody, placing weight on the child’s age, experience, maturity, judgment and ability to express a preference. This provision can be a basis for setting or changing custody to the wage-earner. Some teenagers require less constant supervision than younger children and more guidance from the parent of the same gender. They may also enjoy getting to know a parent they may not have spent much time with as a young child. If the primary wage-earner is a willing and suitable custodial parent, this preference can be a basis for awarding custody.

Once the relative merits of the wage-earner as a parent are assessed the practitioner should not allow the role the wage-earner played during the marriage be portrayed as an impediment to custody. The role of wage-earner, when done well and with dedication, fulfills the role of a primary caretaker. After a marital breakup, the well being of the children depends on the ability in the future of the custodial parent to perform both roles. A showing of competence-an ability to deal with new situations with a high level of intelligence and integrity-may signify the wage-earner as the better future custodian of the children. A showing that a working parent spent a maximum amount of time with the children (though less time than the “homemaker”) is a showing of a “primary caretaker.” If not, a penalty is being exacted against a spouse who was not only innocent, but who fulfilled the obligations and responsibilities of the marriage.

Visitation for the Primary Wage-earner

In representing the primary wage-earner, it is imperative that the visitation schedule be effectual. A visitation schedule that conflicts with wage-earner’s work schedule will create lost earnings, missed visitation and parenting conflicts. The every-other-weekend visitation schedule for an out-of-state parent or a parent who works every weekend is inappropriate in an agreement or order.

A firefighter who works a 24-hours on, 48-hours off schedule will do better with an every- third-weekend schedule coupled with after school time with the children on free weekdays. A musician who works Friday and Saturday nights would do better with having overnight visitation on Sundays and Mondays. Out-of-state parents or parents whose work takes them away for lengthy, irregular periods need mechanisms authorizing occasional visitation on short notice, without giving the custodial parent much room for objection. Tailoring the visitation schedule to times the wage-earner can reasonably visit with the children preserves his or her relationship with the children.

It is also important to determine what activities one’s client enjoys with the children and preserve the right to continue those activities. A working parent who coaches a child’s soccer team or teaches a child’s Sunday school should be allowed to continue spending those times with the child. If the client or the client’s family had a regular tradition involving taking the children on vacations (Easters at Disney, Augusts in Maine), this tradition should be incorporated into the visitation schedule.

Most family courts have standard restraints as part of their standard orders. Making the following additional provisions part of any custody order will help one’s client preserve his or her relationship with the children and discourage the custodial parent from interfering in that relationship: 1) requiring both parents to keep the other informed of changes or anticipated changes in address or phone number; 2) requiring the custodial parent to inform the other parent of any changes in pediatrician, school, church or extracurricular activities; 3) allowing reasonable telephone access; 4) allowing any responsible adult family member (or other enumerated adults) to pick up or drop off the children for visitation; 5) setting the responsibilities and costs for visitation transportation; and 6) requiring both parents to engender respect for the other in the children and requiring them to encourage the children to hold the other parent in high regard.

Take a zero-tolerance approach to unilateral visitation interference, so that problems do not develop. Allowing the custodial parent to frustrate visitation may encourage further and greater difficulties-at times even providing grounds for a change in custody. See, Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236, 240 (Ct.App. 1997) (change of custody required based on custodial parent’s unfounded allegations of sexual abuse and unwillingness to facilitate the child’s visitation). If visitation exchanges are scenes of belligerence, have the client bring a neighbor or friend as witness. If the children are upset and report that the custodial parent is discouraging their visits, have the children talk to their pediatrician, counselor or guardian. See S.C.R.E. 803(4) (statements made for purpose of medical diagnosis or treatment not excluded by hearsay rule); Morgan v. Foretich, 846 F.2d 941 (4^th Cir. 1988) (error to exclude child’s statements regarding sexual abuse to mother and psychologist as such statements are admissible under Fed. R. Evid. 803(2 & 4), which is substantially similar to S.C.R.E.).

Maintaining Funds for the Primary Wage-earner Who Spends Substantial Time with the Children

Standard visitation involves the children spending approximately 20% of their time with the noncustodial parent. Other states factor the amount of time the noncustodial parent spends with the children into the child support guidelines (See, e.g. Cal. Fam. Code § 4055); South Carolina does not [Note, in 1999, South Carolina gave the family courts the option to apply a different child support guideline if both parents had the child at least 110 overnights per year; the remainder of this section is no longer valid].

With regard to child support, one should seek deviation from the guidelines whenever the children spend more than 25% of their time with the noncustodial parent so that this parent has adequate funds to care for the children. Child support is not determined by the guidelines in joint custody situations. 27 S.C. Code Ann. Regs. 114-4730 (Supp. 1996). The closer the noncustodial parent gets toward having the children for 50% of the time, the more inequitable the child support guidelines become, as the additional time creates more expenses for the noncustodial parent and fewer expenses for the custodial parent. This situation may allow for deviation from the guidelines. See, S.C. Code Ann. § 63-17-470 (A) (deviation from guidelines when application in particular case would be unjust or inappropriate).

One possible method for determining the deviation is calculating the guideline’s support, calculating the split custody support (even if it involves a Solomonic splitting the child in half) and doing a weighted average. If the children spend 30% of their time with the noncustodial parent, child support would be two-thirds of the guidelines amount and one-third of the split custody amount. If the children spend 40% of their time with the noncustodial parent, child support would be one-third of the guidelines amount and two-thirds of the split custody amount. Another possible method involves crediting the custodial parent’s savings and noncustodial parent’s expenses from the extra visitation. Finally, an amendment to S.C. Regs. 114-4730, which went  into effect in March 1999, creates a guideline for child support when both parents spend more than thirty percent of the time with the child or children.

Preventing Encumbrance of the Marital Home

In lengthy marriages, courts typically apportion marital assets on a fifty-fifty basis. The most substantial asset in many marriages is the marital home. The court can award exclusive use of the marital home for a period of years to the homemaker as an incident of child support. S.C. Code Ann. § 63-3-530 (15). Doing so encumbers the wage-earner’s equity. Further, the court can make the wage-earner pay the marital home mortgage while the homemaker and children remain there. See Herring v. Herring, 286 S.C. 447, 335 S.E.2d 366, 369 (1985); Hickman v. Hickman, 294 S.C. 486, 366 S.E.2d 21, 25 (Ct.App. 1988). If this occurs, the wage-earner may lack funds to put a down payment on a new home or an income stream sufficient to pay a home mortgage. In representing the primary wage-earner, one should strive to prevent long-term encumbrance of the marital home equity, especially if it involves payment of the mortgage.

Exclusive use of a marital home may not be awarded as part of a divorce decree unless warranted by special circumstances.Cehen v. Cehen, 295 S.C. 452, 369 S.E.2d 659, 660 (Ct.App. 1988). Due consideration must be given to whether the party can reasonably obtain other housing, the amount of equity the other spouse has in the home and the length of time the equity of the other spouse would be tied up. Id.

The appellate courts occasionally find the family court abused its discretion in granting exclusive use of the marital home. Leatherwood, supra, 359 S.E.2d at 90; Patterson v. Patterson, 288 S.C. 282, 341 S.E.2d 819, 821 (Ct.App. 1986); Johnson v. Johnson, 285 S.C. 308, 329 S.E.2d 443, 445 (Ct.App. 1985). Conversely, no reported cases find the family court abused its discretion in failing to award exclusive possession of the marital home. Though the plea to allow children to remain in their home is extremely compelling to family court judges (who may worry less about the ability of parents to have sufficient funds to get on with their lives) “the court must carefully consider the claim of a party that the interests of that party or the children are so predominant, when balanced against the interests of the other, that an award of exclusive possession of the marital home is compelled.” Johnson, supra, 329 S.E.2d at 445.

Often, the easiest way to prevent home equity encumbrance is to trade the marital home equity for other marital assets such as pensions or savings accounts. If alimony is appropriate, the wage-earner’s share of the marital home equity can be used as lump-sum alimony or the continuing mortgage payments can be used as periodic alimony. If neither of these options suffice, the wage-earner should be prepared to show how the homemaker can obtain suitable other housing and how encumbering the marital home equity will prevent the wage-earner from obtaining new housing or achieving other worthwhile goals.

Conclusion

If marriage is a contract, a primary wage-earner who may have neither desired nor created the breakup of a lengthy marriage has a compelling argument that his or her lifestyle should not be diminished by payment of alimony to preserve the lifestyle of the other spouse. Nor should the innocent wage-earner suffer a diminished relationship with the children upon the marital breakup because he or she was not home all day with the children during the marriage and was instead fulfilling the role of wage-earner. Though most South Carolina case law deals with at-fault wage-earners and preserving the homemaker’s lifestyle, the current statutory scheme allows equal consideration to the not-at-fault wage-earner and the preservation of the wage-earner’s lifestyle.