Alimony

Alimony, by definition, is the payment for the support and maintenance of a spouse or former spouse and it is typically paid in monthly installments. In North Carolina either the husband or the wife may request alimony. The court will award alimony to the dependent spouse once it determines that one spouse is a dependent spouse, the other is a supporting spouse and that an award of alimony is equitable considering all 16 factors listed in the North Carolina General Statutes Section 50-16.3A(b). It should be noted that if the court determines that the dependent spouse has committed an act of illicit sexual behavior as defined in N.C.G.S. 50-16.1A(3)a., during the marriage and prior to the date of separation then that spouse will not be entitled to alimony. Similarly, if the court finds that the supporting spouse has committed an act of illicit sexual behavior during the marriage and prior to the date of separation then the court will order that alimony be paid to the dependent spouse. If both spouses committed acts of illicit sexual behavior then the court will use its discretion in either awarding or denying an award of alimony.

Unlike child support, there are no guidelines for the court when considering the amount and the duration of an alimony award. The court has broad discretion to award an amount that it feels meets the middle ground between what the dependent spouse needs and what the supporting spouse can afford to pay. When considering an award of alimony the court considers many factors including the marital misconduct of either party, the earnings and earning capacity of the spouses, the ages and the physical, mental and emotional conditions of the spouses, the duration of the marriage, the ability of a spouse who is caring for a minor child to earn a living, the reasonable needs of each spouse, the standard of living to which the spouses were accustomed to, the education of the spouses, etc.

Something else to consider when looking at alimony is that if the court finds that the dependent spouse is entitled to alimony then it may, in its discretion, enter an award of attorney fees against the supporting spouse. This can become an important consideration when looking at the overall issue of whether to settle your case or whether it should be tried. An award of attorney fees can be large, depending on the case, and should not be overlooked when deciding whether to accept a settlement offer or take the case to trial.

Settling Alimony during a divorce or separation can be an incredibly complex procedure. In order to ensure that you are represented fairly, you need to have a dedicated family law attorney working for you. At Marshall & Taylor, we are here to provide you the support that you need during all stages of your divorce or separation to ensure that your alimony settlement is fair. Contact us for a confidential consultation; we’re here to help you.

How The Courts Determine Alimony

A dependent spouse is defined as a spouse who is actually substantially dependent upon the other spouse for his or her support or is substantially in need of maintenance and support from the other spouse.

A supporting spouse is defined 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.

Alimony is defined as the payment for the support and maintenance of a spouse, either in a lump sum or on a continuing basis. A spouse who desires to receive alimony will be required to show the following:

1. that a valid marriage exists between the parties;
2. that he or she is the dependent spouse; and
3. that the other spouse is the supporting spouse.

In the event that the husband and wife are unable to agree on the amount and duration of alimony, the trial judge will make this decision. In order to get to that decision, the judge will consider the following factors:

1. Is one spouse actually substantially dependent;
2. What are the reasonable needs of the dependent spouse;
3. Present earnings and prospective earning capacity of the parties;
4. Is the other spouse a supporting spouse;
5. What is the supporting spouse’s ability to pay;
6. Other considerations: the length of the marriage, marital misconduct, contributions by one spouse to the other spouse’s economic condition.

Attorney fees in alimony cases are often awarded to the dependent spouse as follows: any time that a dependent spouse would be entitled to alimony or post separation support, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse to be paid and secured by the supporting spouse in the same manner as alimony. The purpose of the award of attorney fees is to enable the dependent spouse, as a litigant, to be able to employ adequate counsel. Oftentimes, a major consideration in whether to settle an alimony case or to litigate it is based on the consideration of the potential for payment/repayment of attorney fees.

There are many defenses which can be asserted in an alimony case. The more common defenses include condonation and marital misconduct. Adultery is an affirmative defense and an absolute bar to an action for alimony. Also, if the claim for alimony is not asserted prior to the time that the absolute divorce is granted the right to receive alimony is forever lost.

Contact Marshall & Taylor to determine the best strategy for your case.

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