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How can you get alimony payments reduced in SC? Can you ever get alimony payments terminated in SC?
The divorce was final a year ago and the judge ordered you to make alimony payments every month, but now your former spouse is living with someone else. Do you have to keep making alimony payments? Can you get the alimony terminated?
What if your former spouse is now remarried? Do you have to keep making alimony payments?
What happens if, months after the divorce is final, you lose your job? You are out of work for over a month and then find a new job that does not pay nearly as much as you were making before. Can you get the alimony payments reduced?
Below, I’ll discuss some situations when you can alimony payments reduced in SC or when you can get alimony terminated in SC.
You may be able to get alimony payments reduced in SC by seeking a modification of the family court’s order.
Some types of alimony payments can be modified based on a change in circumstances, while other types of alimony cannot be modified.
Permanent periodic alimony – the most common type of alimony awarded – can be either modified or terminated based on a change in circumstances.
If the court awarded a substantial amount of alimony based on your income at the time of the divorce, but your income has decreased making it impossible to make your alimony payments and pay your bills, you may need to ask the court to modify your alimony payments based on the change in circumstances.
If you do not act first, you could end up in court on a contempt motion with your former spouse asking the court to force you to pay.
If you are not making your alimony payments as ordered, the court can hold you in contempt of court and put you in jail. Although you can attempt to explain to the court and seek a modification of alimony at the contempt hearing, it’s better to go to court before this happens, explain your change in circumstances, and ask the court to reduce your payments to something that you can afford.
Lump sum alimony is designed to be paid all at once, or in a few structured payments.
The court will not reduce the amount of a lump sum alimony award based on a change in circumstances – in a sense, it is like a judgment against you that should have been paid immediately.
Rehabilitative alimony is also different, although you can get it reduced in some situations.
If there is a change in circumstances “based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony,” the court may modify the amount of the rehabilitative alimony payments.
Reimbursement alimony is ordered when the court determines that you owe your former spouse for services they have performed or contributions they have made during the marriage. Because of this, courts will not modify or terminate reimbursement alimony payments in SC even when there is a substantial change in circumstances.
In some cases, alimony can be terminated based on your former spouse’s remarriage, cohabitation with another person, or death.
Periodic, permanent alimony can be terminated based on a change in circumstances, cohabitation, remarriage, or death of the former spouse. All types of alimony terminate on the former spouse’s death, but some types of alimony will continue after remarriage or cohabitation.
For example, lump sum alimony and reimbursement alimony are not terminated if your former spouse remarries or cohabits with someone but can be terminated upon the death of your former spouse.
If you are paying “normal” periodic, permanent alimony, we should be able to get your alimony terminated if your former spouse has remarried.
Marriage is easy enough to prove, but what happens if your former spouse is living with someone else – can you get alimony terminated then?
SC Code Section 23-3-130 (B)(1) says that periodic alimony should terminate on the remarriage, continued cohabitation, or death of either spouse:
(B) Alimony and separate maintenance and support awards may be granted pendente lite and permanently in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to:
(1) Periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future.
But what does continued cohabitation mean?
SC Code Section 20-3-150 defines continued cohabitation as living with another person in a romantic relationship for a period of 90 or more consecutive days, or living together for periods of time less than 90 days but separating periodically to get around the 90-day requirement:
For purposes of this section and unless otherwise agreed to in writing by the parties, “continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.
As a practical matter, SC appellate courts have been loathe to terminate alimony based on continued cohabitation, finding that, if there is another valid reason for a couple to separate periodically other than circumventing the 90-day rule in SC’s alimony law, there is no continued cohabitation.
For example, in McKinney v. Pedery, the SC Supreme Court found that there was no continued cohabitation where a former spouse lived with a romantic partner five days a week instead of seven days a week. Because the periodic absences were to assist with caring for her grandchildren two days a week, the court held that she was not purposefully circumventing the alimony statute and there was no continued cohabitation…
To prove continued cohabitation when a former spouse is attempting to hide it, it may be necessary to use private investigators to collect the evidence of cohabitation you will need to present to the court.
Because of the appellate courts’ approach to continued cohabitation, though, it is entirely possible that a devious former spouse can lie and get around the alimony statute by separating periodically during the 90-day period if they provide an “innocent” reason for the periodic separation.
If you believe that you have grounds to reduce your alimony payments in SC or to terminate your alimony, call your SC divorce lawyer at Axelrod and Associates for a consultation. We will look at your situation, advise you as to whether you are able to modify or terminate your alimony and help you to retain a private investigator when needed.
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