Sometimes You Can’t Make it on Your Own: Spousal Support in North Carolina
If you were to divorce your spouse today would you be able to financially support yourself? In many marriages only one spouse is gainfully employed as more and more couples decide to have one parent stay at home to raise or homeschool children. When a marriage dissolves one spouse will most likely need financial support from the other to ensure the standard of living does not change.
If the spouse who needs help (the dependent spouse) can show a need for financial support, and the other spouse (the supporting spouse) can afford to pay support, the court will order spousal support, also known as alimony.
Types of Spousal Support
Two types of spousal support exist in North Carolina: Post-separation support is temporary financial support paid while a divorce is in process and alimony is support one spouse pays to the other after the divorce is finalized. Either spouse can request post-separation support while the divorce is being resolved. Each spouse’s income, earning abilities, financial need, and the marital standard of living will be examined by the judge to determine the amount of support to be awarded.
Post-separation support ends when a final judgment is entered; at that point a judge will either say that support is no longer necessary or establish an order for permanent alimony. If you signed a separation agreement or a prenuptial agreement waiving or agreeing to a certain amount of alimony, the court order will be consistent with those previous agreements.
Considerations for Support
To determine the amount and duration of alimony, the judge will look at several factors, including:
– The standard of living during the marriage;
– The length of the marriage;
– Any marital misconduct;
– The impact of either parent being custodian of a minor child;
– The assets and debts of each party, whether separate or marital;
– Each party’s age, mental, emotional, and physical conditions;
– Each party’s earnings and ability to earn money;
– Ability of each party to obtain training or education to become self-supporting; and
– Any contributions to a partner’s training, education, or possible earning power increase.
“Marital misconduct” is a new term that replaces the old “fault grounds” that used to be required for alimony in North Carolina. According to North Carolina General Statute section 50-16 marital fault includes abandonment (both actual and “constructive”), cruel and barbarous treatment endangering a spouse’s life, malicious turning out-of-doors, alcohol/drug abuse, “personal indignities” that render one’s life burdensome and intolerable, reckless spending or waste of assets, willful failure to support, and illicit sexual behavior.
If a North Carolina court finds the dependent spouse was involved in “illicit sexual behavior” during the marriage, the court will not award alimony—even if there is a financial need. If the court discovers the supporting spouse was engaged in “illicit sexual behavior” during the marriage, it will automatically award alimony.
“Illicit sexual behavior” is defined by North Carolina law as “acts of sexual or deviate sexual intercourse…voluntarily engaged in by a spouse with someone other than the other spouse.” If the court finds that one party engaged such behavior after separation the judge will assume there was similar activity during the course of the marriage and the same rules apply.
How is the Amount Determined?
The amount of alimony awarded is solely up to the judge. Although in some cases there may be an award of limited-term alimony, it’s more likely that open-ended alimony would be granted, reviewable by the court only if a major change occurs in the circumstances of one spouse. Unlike child support, no clear guidelines exist as to the amount of alimony given.
Next, the judge will attempt to find any “excess income” the defendant may have. If it exists, it becomes the “surplus” applied against the “deficit” to support the dependent spouse. The judge will often take the deficit of the plaintiff (or the surplus of the defendant) and convert it into the amount of alimony to be paid in a case.
A couple can actually agree on an alimony amount without court involvement. The pair must agree to all possible terms of alimony, including the right to receive it, for how long, for how much, when it can be modified, and when it terminates.
According to North Carolina statutes, when a couple makes such an agreement, it must be “fair, reasonable, and just” and “must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties.”
Once it is decided that alimony is appropriate, there are different ways for the support to change hands. Alimony can be paid in one lump sum, in monthly or quarterly payments, or through a transfer of title to property.
Can Alimony be Adjusted?
Unless the payment is made in one lump sum, most court orders will determine how long alimony will be paid. If not, the order will simply determine the support payments last indefinitely. In that case, either spouse may ask the court to adjust the alimony order based on any significant changes in circumstances. For example, the judge might lower or completely cut payments if the dependent spouse becomes self-supporting or the supporting spouse loses his or her job. The court could also order an end to alimony if the dependent spouse lives in the same home with another person or remarries. The death of either spouse will automatically terminate alimony payments.
Are Men Awarded Alimony?
The most recent U.S. Census Bureau shows that only 3% of divorced men receive alimony while, at the same time, a Pew Research Center survey shows a record 37% of married women have higher income than their husbands. Why is this? Joseph E. Cordell writes at Huffington Post that men “believe asking for alimony is perceived as a sign of weakness, further emasculating them in a relationship that was already lopsided or broken. If the roles were reversed, the wife would ask for alimony and not blink an eye at an award.”
Gender is not one of the factors judges should consider when determining if and how much alimony will be awarded. With more and more men deciding to become stay-at-home dads or caregivers, they find themselves in need of financial assistance during separation and divorce. Cordell says, “…money is only part of a couples’ marital wealth; that the husband did not bring home the bigger paycheck during the marriage does not make him less worthy of money coming out of it.” Bottom line: If you’re a man, don’t be afraid to ask for the assistance you may need.
Is Alimony Forever?
Reuters reporter Beth Pinsker recently wrote about alimony reform and introduced Tanya Williams. She has been sending a check to her ex-husband for 13 years and is among those who don’t understand the concept of “permanent” alimony. “There’s no other contract where the liability continues after the contract ends,” says the 52-year-old dentist who divorced in Florida but now lives in North Carolina. “You can’t leave your job and say, ‘I still have a need so you have to continue to pay me.’”
Williams is one of the many to join the crusade to lobby legislators to change the legal obligation to provide financial support to a spouse before or after marital separation or divorce. Pinsker reveals that some states have already put curbs on judgments, particularly for marriages of less than 20 years, but most are still in progress or are constantly evolving.
States like Massachusetts, Texas, and Kansas restrict most cases to helping lower-earning spouses get back on their feet or get further education. The general consensus is that everyone should work and only those who are disabled or in retirement should be awarded longer-term settlements.
Forbes contributor Jeff Landers reveals that “…most alimony reforms attempt to take away the discretion of the judge and impose severe limitations on what he or she can award in any given case. Usually, even when a judge can deviate from the parameters of these new laws, the judge is required to give a detailed written explanation of why he or she deviated. Considering the caseloads these judges have and human nature, I think many will simply acquiesce and comply with the strict parameters of the new laws.”
Landers cautions that with various reform laws being proposed throughout the U.S., both divorcing spouses should remain alert—know what’s going on in your state and hire professionals with knowledge of the latest developments so they can accurately analyze all implications for your financial future.
For more information on spousal support or to schedule a consultation, please contact Greene Crow & Smith by calling (252) 634-9400 or visiting nctriallawyers.com.
(Sources: Carolina Newswire; Time Magazine; Forbes Magazine; Huffington Post; Reuters; DivorceNet; and North Carolina Family Law.)