By Michael Phillips | Father & Co.
A South Carolina appeals court just reaffirmed a pattern that shows up in support litigation across the country: telling a judge you’ll eventually earn less isn’t the same as proving you do now — and courts are not required to discount today’s obligation against tomorrow’s uncertainty.
Telling a judge you’ll eventually earn less isn’t the same as proving you do now.
The Ruling
Updegraff v. Updegraff is an unpublished South Carolina Court of Appeals opinion (No. 2026-UP-387) carrying no precedential value under the court’s own rules — it can’t be cited as binding law in a future case. What it offers instead is a clean, receipts-backed illustration of how a live legal doctrine actually plays out.
The Cherokee County Family Court ordered a husband to pay $2,500 a month in permanent periodic alimony, based on the statutory factors governing an alimony award — the parties’ current incomes ($27,861.76 a month for him, $9,480.45 for her), their expenses, and the rest. He appealed, arguing the award should run for a fixed term rather than permanently, because his employer requires him to retire at sixty-five and he expected his wife to eventually out-earn him.
The Court of Appeals affirmed. But the reasoning matters more than the outcome: the panel didn’t weigh whether his future retirement was foreseeable or evaluate how much his income might actually drop. It held that doing either would require the court to speculate — and South Carolina case law forbids exactly that. Citing a line of precedent running through Browder v. Browder and Rimer v. Rimer, the court reasoned that when the effect of an anticipated future change isn’t reasonably ascertainable, a family court has no business guessing at it when setting a present-day award.
The court did modify part of the underlying judgment — tightening the language on how the marital share of the husband’s pension and 401(k) accounts gets divided through a qualified domestic relations order. But on the central question of whether a known, employer-mandated future retirement should shape today’s support number, the answer was still no.
The Statutory Framework — And Why It Didn’t Apply Here Yet
South Carolina doesn’t leave “what happens at retirement” undefined — it just doesn’t let you litigate it early. Under S.C. Code § 20-3-170(B), retirement by the paying spouse is grounds to request a hearing on modifying alimony, but only once it happens. At that later hearing, the statute directs the court to weigh:
- whether retirement was contemplated when alimony was first awarded;
- the age of the supporting spouse;
- the health of the supporting spouse;
- whether the retirement is mandatory or voluntary;
- whether retirement would actually decrease the supporting spouse’s income; and
- any other factor the court finds relevant.
None of that six-factor test was actually applied in Updegraff — the court didn’t reach it, because the husband hasn’t retired yet. The family court, in denying his post-trial motion, went out of its way to clarify that its order was “not intended to preclude either party from seeking a modification or termination of alimony” once retirement actually occurs. In other words: the door to the six-factor hearing stays open. It just doesn’t open until the event itself has already happened — and until then, the present-day number holds regardless of how predictable the change might be.
The door to the six-factor hearing stays open. It just doesn’t open until the event itself has already happened.
That two-stage structure is the real story. A support obligation gets set on today’s facts, using a speculation-proof snapshot. If tomorrow’s facts diverge, the remedy is a second proceeding — with its own filing fee, its own hearing, and its own burden of proof on the party asking for the change.
Why This Matters Beyond One Case
This is a pattern, not an outlier. The speculation doctrine that decided Updegraff — courts won’t discount a present award for an anticipated future change unless the effect is reasonably ascertainable now — has been settled South Carolina law since at least the 2009 Browder decision. Separately, family law practitioners tracking the six-factor retirement-modification test have noted that, years after it was codified in 2012, few reported decisions had actually interpreted it, leaving outcomes at the later modification hearing highly fact-dependent and hard to predict. Together, the two doctrines mean a paying spouse gets no credit now for a foreseeable future change, and no real certainty about what happens later, either.
A support obligation gets set on today’s facts, using a speculation-proof snapshot. If tomorrow’s facts diverge, the remedy is a second proceeding.
The structural problem worth naming: support obligations are almost always set against a snapshot of current earnings, while the underlying life — health, employment, custody arrangements — keeps moving. Courts have built a mechanism for revisiting that snapshot (the modification hearing), but the burden sits entirely on the party whose circumstances changed to come back, refile, and prove it. Until then, the original number holds, even when everyone in the room can see the eventual decline coming.
That’s not unique to alimony. The same asymmetry shows up in child support orders that don’t automatically adjust when a parent’s income drops due to job loss, disability, or forced retirement — and the same statutory logic applies: the obligation doesn’t self-correct. Someone has to petition, and petitioning takes money, counsel, and time most people don’t have banked for the exact moment their income falls.
The obligation doesn’t self-correct. Someone has to petition, and petitioning takes money, counsel, and time most people don’t have banked for the exact moment their income falls.
The Bigger Question
Courts are right to be skeptical of speculative future hardship — a system that let every payor discount today’s obligation against a hypothetical future would invite exactly the kind of strategic underpayment claims judges are trained to spot. But the flip side deserves equal scrutiny: a modification process that requires a second lawsuit, a second filing fee, and a second hearing to catch up with a change in circumstances that was often foreseeable from day one is not a neutral, self-executing system. It’s one that quietly favors whichever party has the resources to litigate twice.
It’s one that quietly favors whichever party has the resources to litigate twice.
Updegraff didn’t break new legal ground. It applied settled doctrine as written. That’s exactly why it’s worth reading — not as an aberration, but as a clean illustration of how the machinery is supposed to work, and who it asks to carry the weight when it doesn’t.
Case citation: Updegraff v. Updegraff, Unpublished Opinion No. 2026-UP-387 (S.C. Ct. App., filed July 22, 2026, per curiam) (Konduros, Geathers, Vinson, JJ.), Appellate Case No. 2024-000951, appealed from Cherokee County Family Court (Turner, J.). No precedential value under Rule 268(d)(2), SCACR. Also reported at Lawyers Weekly No. 012-043-26.
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