THE WIFE IS GONE… BUT THE MEMORIES AND THE ALIMONY REMAIN
Husband and wife separate from one another, and they are quickly able to establish a schedule so that both parents spend time with the minor children. Based upon their custody arrangement, child support is calculated, and the couple begins to work toward a division of their assets and debts. But one big issue looms: Alimony. She says she needs it and deserves it. He disagrees and thinks that she shouldn’t spend so much money. Moreover, he says he cannot afford to pay the kind of alimony she requests. She wants to be supported for a long time. He wants her to get a job or at least become employed in a reasonable amount of time. So what happens?
In North Carolina, child support is calculated pursuant to the North Carolina Child Support Guidelines. In most cases, lawyers and judges are usually able to calculate the proper amount of child support by plugging the appropriate figures into a worksheet. Child support is roughly based upon the incomes of the parties plus some additional costs including medical insurance and child care expenses. Child support ceases when a child turns eighteen so long as he has graduated from high school. While issues related to the amount of child support certainly do arise in family law cases, the Guidelines provide assistance in calculating the amount of support, and North Carolina law controls the duration of one’s child support obligation.
Alimony, however, is a different story. Unlike child support, there is no formula for determining the amount or duration of an alimony award. In many cases, alimony is not awarded at all. In determining whether a spouse qualifies to receive alimony, courts must first decide whether one is a “dependent spouse.” If both spouses earn similar incomes, then neither spouse would be deemed a dependent spouse, and no alimony would be awarded. On the other hand, alimony would likely be awarded in a case in which one spouse earns significantly more income than the other. In other words, if the cardiologist husband is married for twenty years to the wife who never earned much of an income during the marriage, she will be deemed dependent upon her husband and will be awarded alimony - except as explained below.
Once a spouse seeking alimony is deemed dependent, the focus shifts to the amount and duration of the alimony. Pursuant to North Carolina law, the amount and duration of the alimony award is based upon a number of factors including the length of the marriage, the reasonable needs of the spouses, the ability of the husband to pay alimony, the wife’s accustomed standard of living, the wife’s educational background, and the marital misconduct of the parties. Generally speaking – longer marriages result in a longer term of alimony. In addition, husbands with higher incomes seem to pay more significant sums of alimony on a monthly basis. But North Carolina judges can and do exercise a wide range of discretion in crafting their alimony awards. The absence of a formula for determining the duration and amount of alimony as well as the wide range of awards handed down by judges can create difficulty for lawyers and their clients attempting to resolve the alimony issue.
When awarding custody or dividing a couple’s marital estate, the court does not consider the misconduct of the litigants. When determining whether a spouse is entitled to alimony, however, marital misconduct is relevant and must be considered by the court. “Marital misconduct” can include abandonment, excessive use of alcohol or drugs, or adultery. In the case of a high-income husband, he would likely have an alimony obligation regardless of whether he had committed any misconduct. But North Carolina law seems to suggest that misconduct on his part would result in a higher monthly amount or a longer duration of alimony payments – or both. No formula or Guidelines exist, however, for determining just how much a husband’s misconduct may affect his situation.
In understanding how misconduct may affect the posture of an alimony claim, one particular situation must be discussed. As described above, wives who are financially dependent upon their high-income husbands generally are awarded alimony. But the North Carolina alimony statutes operate to prevent a dependent wife from receiving any alimony in the event she committed adultery prior to the couple’s separation. In order for a wife’s adultery to bar her from receiving alimony, the husband must not have committed adultery himself. In other words, a financially dependent wife in desperate need of alimony from her wealthy husband would not be awarded any alimony in the event husband proved that she had engaged in sexual intercourse with another person during the marriage.
In sum, the application of North Carolina alimony laws can result in widely disparate outcomes based upon some of the factors discussed in this article. Spouses seeking alimony as well as spouses defending alimony claims are well advised to seek competent legal counsel experienced in presenting their clients’ positions effectively.
Pete McArdle is an attorney in the Charlotte office of Knox, Brotherton, Knox and Godfrey. He can be reached at 704-315-2363 or 866-704-9059 (Toll free) or pmcardle@knoxlawcenter.com.
(Written by Pete McArdle)
