Alimony

Are you eligible to receive, or are your required to pay alimony?

Prior to October 1, 1995 alimony was based on fault.  A dependent spouse had to prove the supporting spouse committed adultery, was an abuser of alcohol or drugs, was violent, abandoned the innocent spouse or in other ways made his or her condition unbearable and intolerable.  Since that date a spouse is entitled to alimony if that spouse is the dependent spouse and the other is the supporting spouse.  Those terms are defined in NCGS 16.1A as follows:

“Dependent spouse” means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.

“Supporting spouse” means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.

It’s always best to discuss a potential alimony issue with an experienced attorney before agreeing to anything and to have the attorney draft the Agreement.  Weaver, Bennett & Bland, P.A.’s  divorce and family law attorneys in the Charlotte area can assist you in determining the possibility of obtaining alimony, determining your exposure for paying alimony, and in prosecuting or defending an alimony claim.

What is Alimony?

There are actually two forms of alimony:

  • Post-Separation Support (PSS): akin to temporary alimony which is for a relatively short stated time or until the resolution of the alimony case.
  • Alimony proper, which will usually be for a longer period of time.

The court is required to base its PSS order on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons. (NCGS 50-16.2A). On the other hand, in alimony cases the court is directed to look at all relevant factors including the 16 enumerated in NCGS 50-16.3A.   As paraphrased from the statute they include:

(2)       The relative earnings and earning capacities of the spouses;

(4)       The amount of earned and unearned income of both spouses, including, earnings, dividends, and economic benefits;

(5)       The duration of the marriage;

(6)       The contribution by one spouse to the education, training, or increased earning power of the other spouse;

(7)       The economic effect of a spouse serving as the custodian of a minor child;

(8)       The standard of living of the spouses established during the marriage;

(9)       The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;

(10)     The relative assets and liabilities of the spouses including legal obligations of support;

(11)      The property brought to the marriage by either spouse;

(13)      The relative needs of the spouses;

(14)      Tax ramifications of the alimony award;

(15)      Any other economic factor that the court finds to be just and proper.

 How Much Alimony is Awarded?

In regards to alimony, a prospective client wants to know how much he/she will be paying or how much he/she will be receiving. The initial answer should always be, “It depends.”  The Court looks at the 16 possible factors that relate to the amount of alimony awarded, a number of which are set forth above.

The Court requires a completed financial affidavit and supporting documents to be provided to each party; additional evidence may be presented in court.  The object is to determine the true income and reasonable needs of the spouse.  If the supporting spouse has a positive balance, that sum is his/her disposable income.  If the dependent spouse’s reasonable needs are more than his/her income, then the Court will attempt to meet the deficiency.  Example: If the supporting spouse has excess income of $1,000 and dependent spouse needs $800, then the court can award $800, not more.  If the dependent spouse needs $1,500, the Court could only possibly award the entire $1,000.

Fault, Adultery, and Alimony

Although with one exception, fault doesn’t enter into the equation of whether a person is entitled to alimony, factors exist that can determine how much, if any, the dependent spouse may actually receive.  These fault factors include abandonment, alcohol or drug abuse, violence and the like.  However, the effect of these faults is usually minor.  The exception noted above and the worst fault of all is adultery.

If dependent spouse is seeking post-separation support (PSS) and the supporting spouse can prove adultery, the presiding judge has total discretion on how much weight adultery carries.  The judge can deny PSS, award a percentage of his planned award without the adultery, shorten the term, or determine that the adultery should have no effect on his PSS award.

However, proving the dependent spouse committed adultery bars alimony.  No matter if the supporting spouse is a billionaire or that he/she committed adultery first, the dependent spouse cannot get alimony in court.  The parties can still provide for some alimony in a separation agreement (there may be reasons to do so), but that’s rare.

Most spouses don’t have a smoking gun – offender’s admissions, e-mails praising the latest episode, or a private detective’s videotape of a sexual encounter. Those are the golden key to be alimony free.  Many spouses only have suspicions, often based on cellphone records showing numerous lengthy calls at odd hours between dependent spouse and a “friend.”  This activity may be an indignity and may lead to better evidence, but alone it’s not proof of adultery.

Judges are allowed to infer adultery when a spouse presents evidence of “opportunity and inclination.”   Opportunity exits where dependent spouse and his/her paramour are in a place where they could have relations (hotel room, office after hours).  Inclination is shown by words or actions that indicate that a romantic relationship is desired or ongoing (holding hands, kissing, texting desires, etc.)

Adultery after separation doesn’t count as a bar even if the parties aren’t yet divorced.  However, a judge can find adultery in situations where very shortly after separation ample evidence of adultery exists together with a showing the dependent spouse associated with the paramour before separation.

If adultery is suspected or found, it’s best to contact an experienced family law attorney.  Weaver, Bennett & Bland, P.A.’s family law attorneys can assist you in this and all other issues involving alimony.

How Long Could I Receive or Pay for Alimony?

Alimony can be awarded for a specified time or for an indefinite period, to be determined in the discretion of the Court.  There are no hard and fast rules for determining the period as the alimony statute does not provide term guidelines.

For years, attorneys in North Carolina have used the “One for Two Rule of Thumb,” indicating that alimony should be paid approximately one year for every two years of marriage.  Unfortunately, there is absolutely no statutory nor case law authority for this proposition.  Family court judges have reminded attorneys regarding this fallacy.   However, the length of marriage remains a very important factor.  A three year marriage may end up with short term post-separation support and no alimony, while a 30 year marriage could result in anything from 10 years to indefinitely.

However, recently, judges have appeared to pay more heed to the parties’ ages and retirement prospects to determine the alimony period.  Even a long term marriage may result in a relatively short term alimony obligation if the supporting spouse is a few years from full retirement age and his or her income will drop sharply.

Some statutory factors the Court uses to determine the length of time alimony is awarded include:

  • Marital misconduct of either spouse
  • Relative earnings and earning capacities of the spouses
  • Ages and physical, mental, and emotional conditions of the spouses
  • Marriage duration
  • Relative education of the spouses and the time necessary to enable the spouse seeking alimony to acquire sufficient education, training, and employment to meet his or her reasonable economic needs

Court orders and agreements provide for alimony termination upon the following occurrences:

  • Death of payor or payee
  • Remarriage of payee
  • Cohabitation (as defined in NCGS 50-16.9)
  • The date specified.

Since an alimony judgment cannot be overturned on appeal if the judge has a reasonable basis for the term of the award, it’s wise to try to come to an agreement regarding alimony through negotiation or mediation.