As divorce lawyers in Charleston, South Carolina, we are often asked whether alimony stops in South Carolina when you retire. In this article, we will focus on the specific issue of when a person obligated to pay “permanent periodic alimony” seeks to reduce or terminate his or her obligation because the ex-spouse paying alimony is retiring.
The majority of divorces occur well before the couple is near retirement age. Therefore, it is common in cases where alimony is awarded for the payor spouse to eventually retire and request a termination or reduction in alimony payments at or before that time.
As a preliminary matter, people should know that alimony is normally modifiable. If a spouse is awarded “permanent periodic alimony,” it automatically terminates when either party dies, when the receiving spouse remarries, or when the receiving spouse continuously cohabitates with a romantic partner. However, sometimes alimony can terminate or be reduced when there is a change in circumstances.
What is the Retirement Age in South Carolina for Purposes of Stopping Alimony?
South Carolina does not have a set retirement age. However, guidance is sometimes found by the court in other places. The Social Security Act contemplates retirement at ages 65-67. The Employee Retirement Income Security Act says the normal retirement age is 65. Other states have given court decisions that say that a person should not be compelled to work past 65, and while this argument could be compelling to some family court judges, it is not yet the law of South Carolina. A court could also allow retirement at an earlier age for various reasons such as the payor becoming disabled or the payee gaining the ability to support him or herself. Ultimately, it is a case-by-case determination for the family court judge who hears the case.
It should also be noted that “retirement” is not always absolute. There are many cases where a person simply one day stops going to work. However, there are other cases where a person may slowly wind it down, such as a lawyer who stops taking cases for a bit and then just manages a very small caseload moving forwards. Other people may quit their primary career but take a separate part-time job in a less stressful field.
What Does a Court Look at When Deciding Whether to Modify or Stop Alimony Due to Retirement?
S.C. Code Ann. § 20-3-170 is the law that talks about petitioning to change an alimony award. While this law contemplates many situations where alimony could be changed, it singles out the reason of retirement and gives a set of six factors for the family court judge to consider when deciding the issue of retirement. These factors are:
- Whether retirement was contemplated when alimony was awarded;
- The age of the supporting spouse;
- The health of the supporting spouse;
- Whether the retirement is mandatory or voluntary;
- Whether retirement would result in a decrease in the supporting spouse’s income; and
- Any other factors the court sees fit.
These factors can come in different forms. In no particular order, here are a few things we think the court could look at based on South Carolina case law and our past experiences:
- Each party’s health
- The ages of both parties
- How much each party has in retirement and savings
- Whether there are still any minor children
- The debts of both parties
- The living situations of both parties, including monthly expenses
- Each party’s social security entitlements
- Whether either party receives a pension
- Whether either party has any rental property
- Any income sources for each party after retirement, including part-time work
- The chance of either party reentering the workforce
- The income of the non-retiring spouse
The only real limit for the court’s consideration is common sense, but in most cases, the court will not leave one party destitute but not the other.
Will the Court Reduce or Stop My Alimony in South Carolina When I Retire?
This depends on the facts of the case. The trial judge will likely consider both options, but many of South Carolina’s appellate decisions have gone with the reduction option overall instead of termination.
Can a Person Paying Alimony Ask a Court in South Carolina to Reduce Alimony Payment Before Retirement?
A paying ex-spouse can certainly file the petition to reduce or terminate alimony after the retirement occurs, but that ex-spouse can possibly file the petition early if there is a retirement date set and an articulable reason why that date is on the horizon. It should be noted that the date the case is filed is very important because it is usually difficult to seek relief that predates the filing date. So if a person retires in January, continues to make the court-ordered payments, and then files in July, that person will not likely be able to recover the payments from January until July. It should also be noted that the procedure is slightly different if the paying ex-spouse makes payments through the State Disbursement Unit instead of directly to the payee ex-spouse.
Does a Person Have to Actually Retire to Get a Reduction in Alimony in South Carolina?
Yes. A court will not likely reduce the alimony of someone who is still working simply because that person has reached some particular age. The law is clear that consideration of an anticipated but speculative occurrence is inappropriate.
What Should I Do If I Pay Alimony in South Carolina and I am Retiring?
Schedule a consultation with an attorney at Futeral & Nelson. This article was only intended to provide general information. One of our attorneys can discuss your specific situation with you and help you prepare a strategy to move forwards. Likewise, if you are receiving alimony, you may want to hold a consultation so you can better plan for the days after your ex retires.