You are sixty-four. You have been paying alimony for eleven years, every month, without ever being late. In March you are going to stop working, and your income is going to fall by more than half. You have assumed, reasonably, that the alimony falls with it.

It might. It will not do so by itself.

South Carolina addresses this directly. Section 20-3-170(B) of the South Carolina Code provides: "Retirement by the supporting spouse is sufficient grounds to warrant a hearing, if so moved by a party, to evaluate whether there has been a change of circumstances for alimony."

Every word in that sentence is load-bearing. Retirement gets you a hearing. The hearing is to evaluate whether circumstances have changed — the statute does not decide that question for you, in either direction. And it happens only "if so moved by a party," which means somebody has to file something. Nothing about retiring is self-executing.

The six factors the court considers

Section 20-3-170(B) goes on to say that "the court shall consider the following factors":

• 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.

Look at the first one for a moment, because it is the factor people trip over. If you were fifty-two when the alimony was set and everyone in the room knew you intended to retire at sixty-five, your retirement is not news to the case. That does not end the inquiry, but it is the first thing the court is directed to consider, and it is the reason retirement is a subject to raise while the alimony is being decided rather than a decade later.

First, find out which kind of alimony you were ordered to pay

This is the question that decides most of these cases, and most people do not know the answer to it about their own decree.

Section 20-3-130(B) sets out six forms of spousal support, and the statute itself says whether each one can be changed later. Periodic alimony is "terminable and modifiable based upon changed circumstances occurring in the future." Lump-sum alimony is "not terminable or modifiable based upon remarriage or changed circumstances in the future." Reimbursement alimony is likewise "not terminable or modifiable based upon changed circumstances in the future." Rehabilitative alimony sits in between: it is modifiable "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 general modification statute, Section 20-3-170(A), is written in terms of a spouse who "has been required to make his or her spouse any periodic payments of alimony."

So before anyone talks about your retirement date, somebody has to read your decree and work out what you were actually ordered to pay. We walked through the differences in periodic vs. lump sum alimony in South Carolina, and that is the place to start if you are not sure which one you have.

If you signed an agreement, read it before you do anything else

Here is the trap, and it catches people who have done everything else right.

Section 20-3-130(G) provides that "the parties may agree in writing if properly approved by the court to make the payment of alimony as set forth in items (1) through (6) of subsection (B) non-modifiable and not subject to subsequent modification by the court."

That reaches every form of support on the list, periodic alimony included. If your divorce ended in a settlement agreement — and most do — the agreement may contain language making the alimony non-modifiable. If it does, and it was properly approved, retirement does not change it. Not at sixty-five, not at seventy-five.

Plenty of people signed such an agreement years ago, were glad to be finished, and have not read it since. Before you build a retirement plan around a reduction, find the agreement and read the alimony paragraph.

Do not simply stop paying

The temptation, when the income drops, is to pay what you can and sort out the paperwork later. That is the most expensive thing you can do.

Section 63-3-620 provides that an adult "who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court" may be proceeded against for contempt. The penalties the statute names are a fine, a public works sentence, or imprisonment — or any combination — and it caps them at "imprisonment in a local detention facility for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours."

An order stays in force until a court changes it. Unilaterally reducing your own payment does not present the court with a budget problem. It presents the court with a compliance problem, which is a far worse position from which to ask for relief.

What this means for you

Treat retirement the way you would treat any other major financial event in a case that is still alive: plan it, then do it.

Work out which form of alimony you pay and whether your agreement made it nonmodifiable. If it is modifiable, the six statutory factors tell you exactly what the court will be looking at — your age, your health, whether the retirement is your choice or your employer's, what actually happens to your income, and whether any of this was already anticipated when the alimony was set. Those are answerable questions, and most of them are answerable with documents.

Then file before you need the relief, not after you have fallen behind. The statute gives you a hearing. It does not give you a reduction, and it certainly does not give you permission to stop.

Stevens Family Law, LLC is devoted exclusively to family law, and our attorneys handle alimony and post-divorce modification matters in Family Courts across South Carolina. If retirement is on your calendar and an alimony obligation is still on your books, the time to look at the decree is well before your last day of work. You can reach our office at (864) 598-9172, or request a consultation.

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Whether an alimony obligation can be modified depends on the form of support awarded and the language of your own order or agreement.