Paying Alimony Can Be Devastating

Paying Alimony Can Be Devastating

Some say the great comedian Robin Williams died in part due to his alimony obligation.  What we do know, is that Williams joked “Divorce is expensive. I used to joke they were going to call it ‘all the money’ but they changed it to ‘alimony’. It’s ripping your heart out through your wallet.”

The old public policy reasons that created alimony are being increasingly challenged by modern society.  We often see millennials of all genders adopting the belief that alimony is outdated and no longer relevant for the modern era.  This is not, however, the law in North Carolina.

What Is Alimony?

The term alimony comes from the Latin word alimōnia which meant nourishment and sustenance. The alimony system assures the wife’s lodging, food, clothing, and other necessities after divorce.  In North Carolina, a spouse who is actually or substantially dependent on the other spouse is eligible to receive alimony.  The supporting spouse is the spouse who pays the dependent spouse.  An alimony claim must be made before divorce to be valid.

The duty of a supporting spouse to support the dependent spouse has long been part of the jurisprudence of North Carolina with appellate cases dating to at least the 1700’s.  See Kenon’s Ex’rs v. Williamson, 2 N.C. 350, 351 (1796).  The aim of the State is to provide support and maintenance for the dependent spouse.  See Williams v. Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980).

Historically, divorce was based on fault.  Women could not support themselves. When  the marriage broke down because of the husband’s fault, the husband was required to pay alimony so that the wife could sustain her existence.  In the 21st century, the gender bias is removed and either a husband or wife or same sex spouse can seek alimony from the other spouse.  See our Alimony page for more details on alimony.

Who is Eligible for Alimony?

To receive alimony in North Carolina you have to prove that you are the dependent spouse and that your spouse is the supporting spouse.  If you are a “stay at home mom” and you don’t work outside the home but your husband does and earns all of the funds used to support the family, you are not only substantially dependent but you are actually dependent.  In contrast, if you earn the exact same income as your spouse, there is no dependency.

How to Calculated?

There is no formula for alimony in North Carolina.  Courts are generally prohibited from garnishing more than 45% of a person’s gross wages.  The 45% tends to be the upper limit — a limit rarely reached in my experience.  The Court generally requires each spouse to provide evidence regarding their income and expenses and based on these Financial Standing Affidavits, the Court in its discretion determines the amount of alimony payable.

While the Court’s don’t use a formula, formulas do exist.  The American Academy of Matrimonial Lawyers (AAML) has developed a formula which is 30% of the supporting spouses gross less 20% of the dependent spouses gross.  Other formulas in other states do exist.  All of these can be helpful in negotiating an amount.  I have personally seen a judge deny alimony when I thought the award would occur and I have seen awards as low as 10% of gross per month.  This shows the remarkable uncertainty of trial and suggests settlements should be favored when possible.

What is the Duration of Alimony?

In North Carolina, an alimony award can be permanent.  However, it generally ceases upon the death of a spouse, remarriage of the dependent spouse or cohabitation of the dependent spouse.  Some judges may limit the award further to a specific period of years.

Are there Defenses to Alimony?

Yes.  In North Carolina, if the dependent spouse commits adultery and the supporting spouse has not committed adultery, alimony is barred and not payable.  Other forms of marital fault can reduce an alimony award in the judge’s total discretion.  More information on what constitutes marital fault can be found on our article addressing a Divorce from Bed & Board.

Is There A National Trend Against Alimony?

Many now question whether the historic reasons which gave rise to alimony that no longer exist should be cause for the end of alimony.  Divorces are now “no fault,” women work outside the home (albeit the evidence shows their salaries are generally less on average than their male counterparts), and society’s views on marriage have changed.  As a result, you see some state’s (e.g., Massachusetts) limiting alimony.  Stephen Hitner worked to reform the alimony laws in Massachusetts based on what he perceived to be unfair laws (New Law Stops Injustice of Paying Alimony Forever).  Some states have abolished permanent alimony and put time limits on it.

But not in North Carolina.  While the wave of anti-alimony trends may catch up to North Carolina and reform it, until then, unless you have a prenuptial agreement waiving alimony or a postnuptial agreement waiving alimony, you may be entitled to receive it or you may have to pay it.

The take away here is that if you and your partner don’t agree with the alimony laws.  You need to enter into a binding contract that alters those laws.  Contact us for help.