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Alimony

Alimony
Statute(s):§ 50-16.3A
Description:Financial support paid by a breadwinner to a financial dependent
Takeaway:Alimony is typically around 20-30% the gap in income between the spouses
Contents
  1. 1Qualifying for Alimony
  2. 1.1Cheating
  3. 2Amount and Duration of Payments
  4. 2.1Marital Misconduct
  5. 2.2Calculations
  6. 3Termination
  7. 4Post-separation support
  8. 5See Also

Alimony is temporary financial support paid by a breadwinner to a spouse that depended on them financially during the marriage.[1] It is intended to supplement the dependent spouse's income while they transition to financial independence.

Qualifying for Alimony

A spouse qualifies for alimony if they meet all of the following criteria:

  1. One spouse is a breadwinner and the other relied on them financially.

  2. An alimony award is fair under all of the factors outlined in § 50-16.3A(b) (see the Amount and Duration section below).[2]

  3. The financial dependent did not cheat on their spouse during the marriage, prior to separation.[3]

Cheating

There is no hard and fast rule on how to prove cheating.[11] It can be proven if the spouse admits to it, but in most cases circumstantial evidence is used. Circumstantial evidence generally requires (a) an opportunity to cheat under incriminating circumstances[12] or (b) an opportunity to cheat and an inclination to do so.[7]

An inclination to cheat can be proven by things like if the spouse frequently molested others, spent time with prostitutes, or if the alleged cheating was with a prior romantic partner.[8] You can think of this as an "adulterous inclination".[9] It means the person demonstrated that they wanted to have sex with others without their spouse's permission. An opportunity to cheat includes things like spending the night at the person's home or renting a hotel room.

A cheating financial dependent can still get alimony from the breadwinner if the breadwinner "condoned" the cheating.[6] Condonation means one spouse knew of the other cheating, but continued with the marital relationship anyway, or behaved in a way that infers forgiveness. The cheating can still be used as a factor to determine the amount and duration of alimony payments, but not as something to eliminate alimony all-together.[16]

Allegations of cheating are common, but convincing evidence of cheating is less frequent. Cheating can have the following impact on alimony:

  1. If the judge believes both spouses cheated, then whether to award alimony is in the court's discretion.[4]

  2. If only the breadwinner cheated, then the court may order alimony even if not all of the criteria are met.[5] Additionally, the breadwinner cheating is a factor for how much alimony the financial dependent gets and for how long.[13]

  3. If the court believes only the financial dependent cheated, then they do not get any alimony, unless their spouse condoned the cheating.

Amount and Duration of Payments

How much alimony a breadwinner has to pay, and for how long, depends on 16 different factors defined by statute:[14]

  1. Marital misconduct of either spouse

  2. Relative earnings and earning capacity of each spouse

  3. The age and health of the parties

  4. Unearned income of the spouses, such as investment returns

  5. The duration of the marriage

  6. The contributions made to the other spouse's career

  7. The impact taking care of the children will have on the spouse's earnings

  8. The standard of living enjoyed during the marriage

  9. The education of the spouses and the time necessary for the financial dependent to catch up to their spouse

  10. Debts and assets of the parties

  11. Property the spouses brought into the marriage

  12. The spouses' contributions as a homemaker

  13. The relative needs of the spouses

  14. Tax implications

  15. Any other economic circumstances of the parties

  16. Whether income is derived from assets the court previously distributed in Equitable Distribution

Marital Misconduct

"Marital Misconduct" is the first factor on the list and is another hot-button issue. Marital misconduct can include the following:[17]

  1. Cheating

  2. Imprisonment

  3. Locking the spouse out of the marital home

  4. Cruel and barbarous treatment

  5. Indignities that make life intolerable and burdensome

  6. Hiding or wasting marital assets

  7. Drug abuse

  8. Intentionally not providing financial support according to their financial means

Calculations

Because alimony is based on 16 subjective factors, the amount a judge will order is unpredictable. Often the breadwinner and the dependent both believe the factors favor them. This makes it difficult to negotiate and settle alimony. As a result, many formulas have been developed that attempt to predict what a statistically average alimony award would be, based on the income of the parties.

In our alimony calculator, we use the formula developed by the Chatham and Orange county courts, because it is a local North Carolina formula based on actual verdict statistics in those counties. You can get more details in our calculator, but it comes out to a little under 30% the gap in income between the spouses. Often, settlements are closer to 20%.

Termination

Alimony ends when any of the following occurs:[15]

  1. Either spouse dies.

  2. The dependent spouse remarries or cohabitates with someone else in a new relationship.

  3. The number of monthly payments ordered by the court are completed.

Post-separation support

Post-separation support is temporary alimony. Other temporary claims, like temporary child support or temporary custody are called the same thing - and determined by the same criteria - as their permanent counter-parts. However, for alimony, post-separation support is considered a different and separate legal claim with different criteria. This is because there is not enough time to consider 16 factors in a one-hour temporary hearing. For post-separation support, the court considers the following shorter list of factors:[18]

  1. Each spouse's reasonable financial needs

  2. The parties accustomed standard of living during the marriage

  3. The relative earnings of each spouse

  4. Each party's debts

  5. Legal obligations to support children or others

  6. Any marital misconduct by the financial dependent

Qualifying for post-separation support merely requires:

  1. The dependent spouse is unable to meet their financial needs

  2. The breadwinner spouse can afford to pay

  3. The financial dependent isn't disqualified due to cheating

At this stage, the court is only looking at marital misconduct to determine if the financial dependent qualifies for alimony. Therefore, the breadwinner's marital misconduct only becomes relevant if the financial dependent cheated, since the dependent can qualify for alimony even after cheating if the breadwinner cheated to. .

See Also

Post-separation support (temporary alimony)

Alimony Calculator

References

  1. § 50-16.3A(a) ("upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse")
  2. § 50-16.3A(a) ("an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section")
  3. § 50-16.3A(a) ("the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony")
  4. § 50-16.3A(a) ("If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. ")
  5. § 50-16.3A(a) ("If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse.")
  6. § 50-16.3A(a) ("Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.")
  7. Owens v. Owens, 28 NC App 713 (1976) ("It is settled that, where circumstantial evidence is relied upon to establish adultery, there must be evidence of both inclination and opportunity on the part of the party charged")
  8. Owens v. Owens, 28 NC App 713 (1976) ("uch a disposition or inclination may be indicated by a habit of fondling women generally, consorting with prostitutes, illicit relationship with the same person prior to marriage, or that the correspondent is a former spouse of the party charged.")
  9. Owens v. Owens, 28 NC App 713 (1976)
  10. Owens v. Owens, 28 NC App 713 (1976)
  11. Owens v. Owens, 28 NC App 713 (1976) ("We consider it unwise to adopt general rules as to what will or will not constitute proof of adultery, but the determination must be made with reference to the facts of each case.")
  12. Owens v. Owens, 28 NC App 713 (1976) ("n some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse.")
  13. § 50-16.3A(b)(1)
  14. § 50-16.3A(b)
  15. § 50-16.9(b) ("remarries or engages in cohabitation, the postseparation support or alimony shall terminate. Postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse.")
  16. Ellis v. Ellis, 767 S.E.2d 413, 238 N.C. App. 239 (N.C. App. 2014)
  17. § 50-16.1A(3)
  18. § 50-16.2A
David King — Attorney

David King, Esq.

David King is a licensed North Carolina family law attorney (Bar ID #54884). He started King @ Law in Raleigh, NC in 2019. King @ Law is focused on practical solutions for middle-class litigants with flat-fee and payment plan options. Click below to schedule a consultation.

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