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What does the Family Court consider when making a Spousal Support or Alimony Modification?

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To justify a modification, the party seeking the change carries the burden of proving this unforeseen change by a preponderance of the evidence Kelley v. Kelley, 324 S.C. 481, Woods v. Woods, 418 S.C. 100. If this threshold is met, the court evaluates the totality of the parties' financial circumstances and applies many of the same statutory and equitable factors utilized in the initial determination of alimony to arrive at a just and equitable decision S.C. Code Ann. § 20-3-170, Downing v. Downing, 440 S.C. 322, Roof v. Steele, 413 S.C. 543.

The Threshold Requirement: Substantial and Unanticipated Change

To warrant a modification or termination of alimony, the moving party must establish a substantial or material change of financial circumstances Kelley v. Kelley, 324 S.C. 481, Downing v. Downing, 440 S.C. 322. This change in circumstances must be unanticipated and unforeseen Kelley v. Kelley, 324 S.C. 481, Woods v. Woods, 418 S.C. 100. When reviewing an application for modification, the court examines whether the substantial change was contemplated by the parties, and specifically whether the alimony amount set in the original decree already reflected the expectation of that future occurrence Woods v. Woods, 418 S.C. 100.

The statutory framework explicitly notes that certain events trigger specific review standards:

  • Retirement: Under South Carolina law, the retirement of the supporting spouse constitutes sufficient grounds to warrant a hearing to evaluate whether there has been a change of circumstances S.C. Code Ann. § 20-3-170.

Core Considerations and the Totality of Circumstances

In evaluating a modification request, the Family Court must examine the totality of the parties' financial circumstances Downing v. Downing, 440 S.C. 322. This includes assessing the supporting spouse’s overall ability to pay the ordered alimony, the payee spouse's needs, and the availability of assets (such as retirement or other property assets) that could be utilized to pay support Downing v. Downing, 440 S.C. 322.

The court generally considers several core factors in the modification context:

If a payor spouse seeks to reduce alimony based on diminished income, the court closely examines their earning capacity and whether they are voluntarily underemployed, which can be found even in the absence of bad faith Woods v. Woods, 418 S.C. 100.

Application of Statutory Alimony Factors

When determining whether to modify alimony, the Family Court may apply and weigh the statutory factors used during the initial alimony determination, as set forth in S.C. Code Ann. § 20-3-130(C) Downing v. Downing, 440 S.C. 322, Roof v. Steele, 413 S.C. 543, Holmes v. Holmes, 399 S.C. 499. These factors, which the court may weigh in such proportion as it finds appropriate, include:

  1. The duration of the marriage and the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action S.C. Code Ann. § 20-3-130, Fuller v. Fuller, 370 S.C. 538.
  2. The physical and emotional condition of each spouse S.C. Code Ann. § 20-3-130, Fuller v. Fuller, 370 S.C. 538.
  3. The educational background of each spouse, along with the need of each spouse for additional training or education to achieve their income potential S.C. Code Ann. § 20-3-130.
  4. The employment history and earning potential of each spouse S.C. Code Ann. § 20-3-130.
  5. The standard of living established during the marriage S.C. Code Ann. § 20-3-130.
  6. The current and reasonably anticipated earnings of both spouses S.C. Code Ann. § 20-3-130.
  7. The current and reasonably anticipated expenses and needs of both spouses S.C. Code Ann. § 20-3-130.
  8. The marital and nonmarital properties of the parties, including those apportioned during the divorce or separate maintenance action S.C. Code Ann. § 20-3-130.
  9. Custody of the children, particularly where conditions make it appropriate for the custodian not to seek full-time employment outside the home S.C. Code Ann. § 20-3-130.
  10. Marital misconduct or fault of either or both parties, if the misconduct affected the economic circumstances of the parties or contributed to the breakup of the marriage (subject to statutory temporal limits) S.C. Code Ann. § 20-3-130.
  11. The tax consequences of the award to each party Roof v. Steele, 413 S.C. 543, Holmes v. Holmes, 399 S.C. 499, Fuller v. Fuller, 370 S.C. 538.
  12. The existence of support obligations to a former spouse Fuller v. Fuller, 370 S.C. 538, Butler v. Butler, 385 S.C. 328.
  13. Other factors the court considers relevant Roof v. Steele, 413 S.C. 543, Holmes v. Holmes, 399 S.C. 499, Fuller v. Fuller, 370 S.C. 538.

Specific Factors Considered for Supporting Spouse's Retirement

If the modification request is based on the retirement of the supporting spouse, S.C. Code Ann. § 20-3-170(B) mandates that the Family Court consider the following specific factors:

  1. Whether the retirement was contemplated when alimony was awarded S.C. Code Ann. § 20-3-170.
  2. The age of the supporting spouse S.C. Code Ann. § 20-3-170.
  3. The health of the supporting spouse S.C. Code Ann. § 20-3-170.
  4. Whether the retirement is mandatory or voluntary S.C. Code Ann. § 20-3-170.
  5. Whether retirement would result in a decrease in the supporting spouse’s income S.C. Code Ann. § 20-3-170.
  6. Any other factors the court sees fit to consider S.C. Code Ann. § 20-3-170.

Qualifications and Limitations on Modification

The authority of the Family Court to modify alimony is subject to several legal and factual limitations:

  • Nonmodifiable Agreements: The parties may agree in writing, if properly approved by the court, to make alimony payments completely nonmodifiable and not subject to subsequent modification by the court S.C. Code Ann. § 20-3-130.
  • Insufficient Circumstances: Standing alone, certain circumstances are legally insufficient to warrant a modification of alimony. These include inflation, unwarranted debts, a payee spouse's anticipated employment, the "straitened financial situations" that normally result from a divorce, or simple increases or decreases in the payor spouse's income without broader context Kelley v. Kelley, 324 S.C. 481.
  • Procedural Posture and Retroactivity: The family court has the authority to decrease, increase, confirm, or terminate alimony payments as justice and equity require S.C. Code Ann. § 20-3-170. However, modification of alimony applies retroactively only if specifically ordered by an appellate court Craig v. Craig, 365 S.C. 285.

When a party petitions for a spousal support or alimony modification, the Family Court must first find an unanticipated, substantial change in financial circumstances. Once this threshold is met, the court assesses the change by evaluating the totality of the parties' financial circumstances, specifically focusing on earning capacities, expenses, and the supporting spouse's continued ability to pay. To guide this equity-based decision, the court applies and weighs the statutory factors relevant to the initial alimony award, or, in cases involving retirement, the specific statutory criteria governing retired payors.

At Seibert Law and Mediation, we believe families thrive when they are empowered to build solutions, not forced into conflict. If you’re facing a difficult chapter, we’re here to help you move forward with clarity, compassion, and dignity. The most important step you can take is to speak with an experienced family court attorney immediately.

Divorces, Separate Maintenance and Support, and custody and visitation matters in South Carolina can be highly technical, and small factual details often make the biggest difference. If you or someone in your family is faced with family court, don’t assume the case is open-and-shut. At Seibert Law and Mediation, we examine every angle to fight for the best possible outcome.

Contact Seibert Law and Mediation for a confidential consultation. If you need help, reach out to speak to us at (843) 554-0686 or via text at (843) 594-2101. Your defense starts today with understanding how your case begins. You don’t have to face a family court matter alone.

Seibert Law and Mediation serves lowcountry South Carolina in: Charleston, Johns Island, West Ashley, James Island, Daniel Island, Mount Pleasant, Summerville, Goose Creek, Moncks Corner, and surrounding communities as well as upstate South Carolina in Spartanburg and Greenville, and surrounding communities.