Q: Who gets alimony in a divorce and how is it paid?
The answer depends on two scenarios:
1. Does one spouse earn more money than the other spouse?
2. Have you been married a significant period of time?
If you answered yes to both questions, alimony is an issue you need to consider in your divorce.
All of us have heard of the term alimony at one point or another. Most people know its related to a divorce and has something to do with somebody paying someone else some money.
Misconceptions about Alimony
I remember watching Chevy Chase in “Fletch” literally running from his wife’s divorce lawyer who was personally popping over to Chevy’s LA apartment to collect the monthly alimony which left our hero penniless.
Bitter divorcees of both sexes complain or brag about alimony payments depending on whose goose is being cooked. Misconceptions about alimony abound, and it can either scare you to death or comfort you depending on your situation. Let’s take a hard, but easy to understand look at the real law of alimony and see if its something that may affect your divorce.
What is Alimony?
Alimony is defined as “an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.”
Typical alimony awards are monthly payments from one spouse to another for a certain amount of time or for an indefinite period.
- So, are you entitled to alimony?
- Do you have to pay alimony?
- How much is alimony going to be and for how long will the payments last?
Lets look first at what entitles someone to alimony.
How is Alimony Determined in a North Carolina Divorce?
Alimony is a governed North Carolina General Statue Chapter 50-16. Alimony is payable from a supporting spouse to a dependent spouse, meaning only a dependent spouse may receive alimony.
The North Carolina alimony law defines “Dependent spouse” as a 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.
This means that to be a dependent spouse, you do not make enough money to pay your bills and live the life you have been living while married. This is requirement number one to be eligible for alimony.
If I am a Dependent Spouse, Doesn’t That Mean My Ex is the Supporting Spouse?
Not So Fast!
If you are by definition, a “dependent spouse,” then we must turn to the question of whether or not your spouse is a “supporting spouse.”
The alimony statute defines supporting spouse as a spouse”… 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.”
In essence this means that if you are dependent, your spouse must be the person you are financially dependent on, and must have been the person who is paying for your life style. Simply not being able to pay your bills is not enough.
Examples of a Dependent Spouse NOT Qualifying for Alimony Support
In some cases people live off of their parents, trust funds, or other resources than there spouse’s income. In these cases you are not entitled to alimony from your spouse.
What Is Needed to Meet the Requirements for Alimony Support?
Let’s assume one of you is a dependent spouse and one of you is a supporting spouse according to our definition.
A practical requirement here is that the supporting spouse make more than you do. It’s implied in the law but not stated specifically. You will not be awarded alimony from a spouse whose income is equal to or less than yours even if you need some of that income to pay your bills.
What is the Income Requirement for Receiving Alimony?
How much of a difference in income is required to receive alimony support in North Carolina?
It’s not spelled out clearly in the law either, but the term “substantially dependent” implies that there be a real difference.
In my experience as a Raleigh Divorce Lawyer for 14 years, the claim is only worth making if you consider the difference in income of the parties and consider an award of one half of the difference, and this be a satisfactory award for the client. It’s not that a judge is going to award a split of the difference in income, but it helps us to judge whether or not a claim is worth making in cases where the income is different but the difference is not extreme.
What Prevents an Divorcee from Receiving Alimony?
We need to touch on the alimony killer, which is un-condoned adultery on the part of the dependent spouse. “Un-condoned” can be thought of as unforgivable.
Adultery, or illicit sexual conduct on the part of the dependent spouse with someone other than the supporting spouse prior to separation will bar you from receiving alimony.
What if Both Parties Commit Adultery?
If both parties committed un-condoned adultery prior to separation, then the Courts will weigh each parties conduct and consider it in any award, but alimony will not be barred.
I committed adultery a long time ago, but my spouse forgave me. Now we are divorcing. Do I still owe alimony?
If the dependent spouse committed adultery five years prior to the separation, and the parties went to counseling and dealt with it and continued in the marriage, the adultery was forgiven and will not serve as a bar.
Steps to Determining if Alimony Will be Awarded
After a North Carolina Court has made the determination of the dependent and supporting spouse, the next step for the court is determining whether or not an award of alimony is “equitable after considering all relevant factors set out in section (b) of the statute.
Factors That Contribute to Spousal Support
These factors include the following:
- The marital misconduct of either of the spouses
- The relative earnings and earning capacities of the spouses
- The ages and the physical, mental, and emotional conditions of the spouses
- The amount and sources of earned and unearned income of both spouses, including but not limited to:
- and Benefits, such as:
- – Retirement
- – Insurance
- – Social security
- – Medical
- – or Other benefits
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The duration of the marriage
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- 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;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property.
North Carolina Alimony Judgments are Unpredictable
After the court considers these factors, they will determine an amount, if any, that is “equitable.”
Alimony awards are wildly unpredictable from Judge to Judge and jurisdiction to jurisdiction. This is one reason it is important that your attorney be familiar with the philosophy of particular judges and trends in their jurisdiction.
In Wake County, alimony is still awarded regularly in cases where one party truly earns significantly more than the other and the marriage was of a reasonable long duration. In some counties and states, alimony awards have become less prevalent than they once were, but the claims are alive and well in North Carolina.
When my client has a potential claim for alimony, I review the income of each party over the last three to five years of the marriage, as well as the expenses of each party and the separate estates and assets of each party. Then depending on the party I represent, we work to minimize or maximize a potential award before trial.
Other Fees and Payments Awarded in NC Alimony Cases
Another big issue in alimony claims is the potential for large attorney fee awards. The statute allows for recovery of attorney fees against the supporting spouse, and some judges award the dependent spouse attorney fees in most cases.
Several factors can influence if, and how much the award is.
It is imperative to pay reasonable support to a qualified dependent spouse before trial, as failure to pay only increases the chances a supporting spouse will have pay the dependent spouse’s attorneys fees. Attorney fee awards vary wildly and can range from $2000.00 to $50,000.00 or more. Keep in mind that all of this is relative. The less the parties make, the less any alimony or attorney fee award is going to be.
When Should Alimony be Considered?
In summary, alimony is an issue that should be considered by each party if one party makes significantly more than the other party. Consult with a local divorce attorney and bring in your most recent income information so that you can be advised on your potential exposure or eligibility for alimony.
Many qualified parties have no interest in making an alimony claims, but this claim would need to be waived. Just get the advice you need and proceed accordingly. The only way to make good decisions in a divorce is knowing the rights of each party and proceeding based on accurate information.
Contact a Raleigh Divorce Attorney for Help with Alimony Support
If you are in need of alimony support, but need legal assistance, our Raleigh divorce team is available to help you. We can determine if a case for alimony is present, and if so can proceed with developing a strategy for a positive outcome. Contact Doyle Law Group today at 919-301-8843 or complete the form below to speak with a divorce lawyer.
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