Frequently Asked Questions about Alimony in North Carolina
What happens if my spouse can’t afford to pay me enough alimony to cover my expenses?
This scenario is all too common when spouses divorce. Often, the couple’s combined earnings when they lived together were barely enough to cover all of the monthly expenses for the family. When each spouse moves into his and her own residence, the reality is that often there simply isn’t enough money to go around. In such cases, our judges really scrutinize what each spouse’s “reasonable needs” are.
Monthly expenses that many people would consider to be essential are eliminated by the judge in determining both what the dependent spouse needs each month, and what the supporting spouse can afford to pay. The most common examples are retirement contributions, vacations, gifts, donations, and other such expenses that are typically considered non-essential by the court when the issue is the supporting spouse’s ability to pay.
How do I know how much alimony I will receive?
Unfortunately, unlike with child support, in North Carolina there are no official guidelines that spell out exactly how much alimony a dependent spouse should receive. Instead, the needs of the dependent spouse are determined by analyzing how much money it took to pay for his or her expenses each month in the year or two prior to the date of separation. Once the necessary amount is determined, we look at how much income the dependent spouse is earning (if any) that can be used to pay for his or her own monthly expenses. If there is a shortfall between the monthly expenses and what he or she earns, the next step is to look at the supporting spouse’s “surplus” each month (i.e., his or her net income minus his or her own living expenses) to determine how much he or she can pay the dependent spouse. Another very important factor is the matter of taxes: The person receiving alimony must claim it as income, and the person paying alimony is allowed to deduct it from his or her income for tax purposes. This must always be taken into consideration when determining the appropriate amount of alimony.
How long will I have to pay my spouse alimony?
Just as there are no guidelines or tables in North Carolina that calculate exactly how much alimony a dependent spouse is entitled to receive each month, there is no set length of time that the supporting spouse must pay it. The law is clear that a spouse who is receiving alimony will lose it if he or she dies, remarries, or engages in cohabitation, but absent the occurrence of one of these “statutory termination events,” it is up to the judge to determine an appropriate duration for the payment of alimony. The most important factor in this determination is the length of the marriage, but many, many other factors come into play. These include age and health of each party, as well as the existence of marital misconduct. In settlements with attorneys, often the rule of thumb used to determine the duration of alimony is half the length of the marriage. Having said that, it is safe to say that if a supporting spouse who has been married for a long time commits illicit sexual behavior, he or she will be paying alimony for a significant period of time, often longer than half the length of the marriage. In some cases where the court determines alimony, the judge does not state a termination date and instead leaves it up to the supporting spouse to file the appropriate motion to terminate alimony down the road, most often because of reaching a reasonable retirement age.
What happens if I caught my spouse cheating? Will I get more alimony now?
The existence of “marital misconduct” (including cheating, but there are other types as well) occurring before a couple separates does have an impact on the determination of alimony. In North Carolina, if a supporting spouse commits “illicit sexual behavior” (i.e., engages in sexual acts with someone other than his or her spouse prior to the date of separation), the law requires the judge to order him or her to pay alimony. Again, however, the amount is still determined by an analysis of the monthly expenses of the dependent spouse and the ability of the supporting spouse to make up any shortfall. Conversely, if the dependent spouse is the one who is caught cheating prior to the date of separation, he or she is not entitled to any alimony (with the exception of short-term support called post-separation support). This is the case regardless of how much financial assistance the dependent spouse can prove he or she needs. The commission of illicit sexual behavior by the dependent spouse prior to the date of separation acts as an absolute bar to an award of alimony to him or her. The exception to this rule is when both parties have cheated before the date of separation, in which case it is up to the court to determine if alimony should be awarded or denied.
My wife had an affair with her coworker three years ago. We got through It, but she is leaving me now. Do I have to pay her alimony?
The answer is probably yes, provided of course that she is a dependent spouse. This fact patterns raises the issue of “condonation,” which essentially means forgiveness. Under North Carolina divorce law, if a spouse learns that his or her spouse cheated during the marriage, what happens next is important and can impact the payment or non-payment of alimony. If the dependent spouse is the one who cheated and the supporting spouse learns of the marital misconduct, staying together (i.e., not separating) for a period of time after learning of the infidelity can “wipe the slate clean” for the cheating spouse. This is because it is presumed that a spouse who knows that his or her spouse has cheated, yet decides to stay together, has forgiven the cheating spouse. If a couple continues living together and engaging in typical “married” behavior, such as spending time together at home, going out together in public, and otherwise acting like a couple from the perspective of an outside observer, then after a period of time (which varies depending on the facts of the case), the marital misconduct is deemed to be condoned (forgiven) and cannot serve as a basis for the court awarding or denying alimony.
My husband is leaving me for someone else but I earn more than he does. Can I still get alimony?
The answer is no. The first hurdle that any spouse seeking alimony must overcome is to prove that he or she is dependent on the other spouse for his or her support. Dependency doesn’t mean that the supporting spouse has been paying for 100% of the needs of the dependent spouse. As long as there is a reasonable disparity between the incomes of the spouses (presuming that both spouses are employed to full capacity), it is usually fairly easy for the spouse who earns less to prove dependency. But if the parties earn similar incomes, or the spouse who wants alimony actually earns more, no alimony will be awarded to the “victim” spouse regardless of how egregious the marital misconduct is on the part of the other spouse.
My spouse didn’t cheat on me, but she has become impossible to live with and I can’t take it anymore! Can I get alimony?
Remember that the most important factor regarding alimony is whether one spouse is dependent on the other for his or her support. If there is no dependent spouse, end of discussion; there will be no alimony regardless of why the marriage ended. Getting over the “dependency hurdle” allows us to analyze the other facts of the case to determine the strength (or weakness) of a potential alimony claim. The only form of “marital misconduct” that operates as a “mandate” under North Carolina alimony law is illicit sexual behavior. If the dependent spouse engages in it, he or she is barred from receiving alimony; if the supporting spouse engages in it, he or she must pay alimony; if both parties engage in it, the judge decides whether to award or deny alimony.
The question above raises the issue of “abandonment,” which is probably the most misunderstood form of marital misconduct. In essence, it means opting out of your marriage for no legally justifiable reason. All marriages are expected to have ups and downs, and no one is entitled (legally) to have a perfect spouse. Accordingly, a spouse who decides to leave his or her marriage because “the grass is greener” or who “just wants to be happy” risks committing abandonment if there are no factors at play that would justify leaving the marriage.
While there is no way to list every legally justifiable reason to leave a marriage, some common ones in addition to illicit sexual behavior/adultery include physical abuse, chronic substance abuse, cruelty, verbal/mental abuse, prolonged withholding of “love and affection,” and egregious financial misconduct. Regardless of whether you are the dependent or the supporting spouse, it is important to analyze (with your attorney) whether your reasons for wanting to leave the marriage are “legally okay” so that you can properly assess any impact the decision may have on the issue of alimony.
What happens if I am under a court order to pay my spouse alimony, but I just got laid off?
If you are paying alimony pursuant to a court order and you experience a job loss or pay reduction through no fault of your own, the law of North Carolina allows you to seek a modification or termination of your alimony obligation. It will be up to the judge, but typically you would be ordered to pay a reduced amount (down to zero) while you are searching for another job, based on any unemployment or severance pay you may be receiving. Similarly, if the spouse who is receiving alimony suffers an increase in his or her monthly expenses, for example an increase in medical expenses, he or she may seek an increase in the amount of court-ordered alimony. Such “alimony modifications” are determined in the discretion of the judge based on the same analysis of needs and ability to pay that was done when alimony was originally determined.
It is important to note that any job loss or income reduction must be involuntary in order to warrant a modification of alimony. Payors who change jobs voluntarily are not entitled to a reduction in alimony. If you are paying or receiving alimony pursuant to a separation agreement (contract), unless the agreement includes a provision allowing a party to seek a modification of alimony, even a change in circumstances such as a job loss does not allow alimony to be modified unless both parties mutually agree.
Frequently Asked Questions about Child Custody & Child Support in North Carolina
What happens if my ex is not paying child support? Can I withhold custodial time?
No. In the eyes of the court, custody and child support laws are not dependent on one another. While a deficiency in child support may certainly be a hardship on you, it is not generally deemed to be in the best interest of the child to withhold visits with the other parent due to their lack of financial support to you.
You do, however, have remedies available to you if your ex is not paying court-ordered child support or child support from a private agreement, by way of filing the appropriate actions with the court.
Which parent is more likely to be granted primary custody?
It used to be very common for the mother to be awarded primary custody of the child, with the father having visitation on weekends and vacations from school. It is no longer the presumption that the mother shall be solely responsible for the daily upbringing of the child. The court will focus on the best interest of the child. If both parents are ready, willing, and able to be involved in the day-to-day aspects of a child’s life, it is typically found that a joint 50/50 or otherwise shared custody arrangement is in the best interest of the child.
Throughout our marriage, I have always been the primary caregiver for the children. Can my spouse still get 50/50 custody?
Typically, the fact that one parent has been responsible for the day-to-day responsibilities and activities in a child’s life does not preclude the other parent from being given the opportunity to assume these responsibilities and activities when you begin residing in separate residences. Absent extreme circumstances – such as substantiating that a parent is unfit to care for a child due to drug and/or alcohol abuse – or a parent having a job that keeps them out of town during the week, most courts will veer towards a custody schedule that affords both parents equal time with the child.
I already have a child custody order or agreement in place. Can it be modified?
Yes. Under the appropriate circumstances, custody can be modified. If you have a court order, you must allege and prove a substantial change in circumstances has occurred that makes the existing order no longer feasible or appropriate. Examples of changes in circumstances that could lead to a modification of your current arrangement may be a milestone in the child’s life such as reaching school age, one parent’s unfitness to care for the child, or a parent taking a new job that involves frequent travel. If your current custodial schedule was determined by a private contract and you are unable to mutually agree on a new schedule, you can petition the court to determine custody of the child.
What are the most common visitation arrangements?
Most custody arrangements, whether by private agreement or court order, include schedules for the child’s regular residential schedule, a holiday schedule, and a summer vacation schedule. In situations where the parents share custody on a 50/50 basis, there are a variety of ways the time can be approportionated, such as a week on/week off schedule, or a combination of weekdays and alternating weekends that do not require either parent to spend an entire week away from the child. Any time you are able to reach a private agreement through negotiations with the other parent and/or their attorney, it minimizes conflict.
What happens if all my family lives out of state? Can I take our child and move to a different state to be near family?
Unfortunately, when it comes to relocating your child to a different state or even sometimes a different county within North Carolina, it is not nearly as simple as packing your bags and hitting the road. If you plan to move with the child, it is important to get consent from the other parent. If the other parent does not consent, you must petition the court to relocate. The court will consider a variety of factors, but it is most important that the court finds that relocation is in the best interest of the child, and that the relocation will not negatively impact the child’s relationship with the non-custodial parent. If the court is inclined to allow you to relocate, the court will put enormous emphasis on the child maintaining a relationship with the other parent and has broad authority to order long vacations away from home and charge travel expenses to the relocating parent.
I went to daycare to pick up my child, and she/he had already been picked up by my ex. Can I call the police?
Without a written agreement or court order detailing the custodial arrangement, both parents have equal physical custodial rights to the child. This means the mother does not have any more rights to the child because she is “mom,” and the father does not have any more rights to the child because he is “dad.” There is no default law dictating that the parents must share custody in any method or manner. If you call the police and do not have a court order, they will be unable to order the child to either parent.
What happens if we have 50/50 custody? Does either parent have to pay child support?
It depends. Child support is not only based on the percentage of overnights spent with both parents, but also income, health insurance costs, and work-related daycare expenses. Often, even in a 50/50 custody arrangement, one parent will pay child support to the other parent.
Frequently Asked Questions about Other Family Law Issues in North Carolina
What happens if my outstanding claims have not been resolved? Can I get a divorce?
Yes. Divorce occurs when a judge severs the bonds of matrimony and divorce functions independently of your other claims. Prior to final divorce, you must have claims pending for equitable distribution and alimony, if applicable, to preserve these for later adjudication.
What happens if my husband inherited a hefty sum from his Grandmother? Does he still receive 50% of our marital property?
Maybe not. Inheritance is a distributional factor that a judge may consider in support of granting an unequal distribution of marital property because inheritance is the separate property of the owner, regardless of when received.
What happens if my husband moved out and we do not have a signed SAPS? Are we legally separated?
Yes. A formal document does not need to be executed for you and your spouse to become separated. When you are no longer living together and at least one party has the intent for the separation to remain permanent, you are legally separated.
