Unpredictable Alimony Awards

Alimony has always been of the most unpredictable issues for spouses and attorneys.  The chair of the Family Law Section of the American Bar Association indicated in a recent article “Divorce law is one of the most discretion filled areas of the law…”

In many states, including North Carolina, judges have wide discretion in awarding alimony, both in amount and duration.  Compare this to child support awards that are largely determined by a formula in North Carolina.

A recent article in the February 2012 issue of the American Bar Association’s Journal highlights national efforts to create more predictable alimony awards. 

The article states, “Many agree that divorcing spouses deserve more predictable outcomes” and that the current alimony process in court “has been attacked as antiquated, unbalanced and unfair.”

Here are some of the proposals and efforts that have been undertaken by other states or legal groups according to the article:

• In 2011 Massachusetts passed the Alimony Reform Act.  The new law created a formula for calculating alimony awards.  The law also ends alimony when the paying party reaches retirement.  Further there is now a 12-year limit on alimony payments in that state.
• Oklahoma is trying to reduce a party’s ability to get military retirement pay as alimony.
• Rhode Island generally limits alimony payments to five years.
• In 2004, a Florida lobbying group tried to end alimony in that state forever.
• The American Academy of Matrimonial lawyers suggests the following formula:
  • 30% of the paying party’s gross income minus 20% of the receiving party’s gross income
  • The receiving party should not receive more than 40% of the couples’ total combined gross income
  • For example: If one spouse makes $100,000 and the other makes $50,000, the numbers look like this:  $100,000 x 30% = $30,0000; $30,000 minus $50,000 x 20% ($10,000) = $20,000.  So, the receiving spouse would get $20,000 a year in alimony.
  • And, the duration would be calculated by multiplying the length of the marriage by a fraction.

These efforts clearly indicate that there is a big problem for divorcing couples using the courts to determine alimony awards.  

Their outcomes are highly discretionary and therefore very difficult to predict. Of course, couples always have the option to opt out of the unpredictable alimony system currently in place. They are free to resolve alimony issues in whatever way they choose in processes such as collaborative divorce and mediation. 

As the current alimony system comes under further attack, wise couples may elect to do just that. 

New Protections Against False Paternity and Child Support Claims in North Carolina

As of January 1 of this year, men in North Carolina have some new protections from false paternity claims. 

Since the beginning of this year, new laws have been in effect that provide new procedures for men who want to dispute that they are the father of a child. 

The legislature amended or created three laws that give fathers a clear-cut process for asking a court to officially declare that they are not the father of a child.

Specifically the new laws provide a way to ask a court to overturn a paternity order, an affidavit of parentage or a child support order if the father believes he is not the father of the child. 

However, the alleged father has only one year from the time he knew or had reason to know that he was not the father to challenge paternity under these new laws.

The new laws for overturning paternity orders or affidavits of parentage require two showings:  First, a father must prove that the paternity order or affidavit was created by “fraud, duress, mutual mistake, or excusable neglect.”  If a father files a motion alleging sufficient facts, then the court has to order genetic testing of the mother, child and alleged father to determine whether the alleged father is the actual father.

If the alleged father can prove fraud, duress, mutual mistake or excusable neglect AND the genetic tests show that he is not the father, then the court can set aside the paternity order or affidavit. 

Further, a new statute allows men to ask a court to let them out of child support if they can prove by clear and convincing evidence that:

1. He has not acknowledged paternity of the child, or that he acknowledged paternity without knowing that he was not the actual father (“acknowledgement” includes public acknowledgement and supporting the child while married to the mother,  sworn statements and affidavits claiming to be the father, consent orders, voluntary child support agreements, or any other legal agreement to support the child, and admissions of paternity in open court); and

 2. He had not adopted the child; and

 3. He has not legitimated the child; and

4. He is not the child’s legal father under N.C.G.S. 49A-1; and

5. He has not done anything to prevent that actual father from asserting his parental rights to the child; and

6. Genetic testing shows that he is not the actual father.

If the man can show all of the above facts (no juries are used in these cases), then the court is required to cancel the child support obligation.  However, the man generally does not get any money back that has already been paid.  (The man can get any support that he has paid from the filing of this motion until the cancellation of the support obligation if he can prove that the mother conned him into believing he was the father).   The man cannot get any money back if he has been making payments to anyone other than the mother.  The court also has to order that the birth certificate be changed to remove the man’s name.

Men and their attorneys have long cried out for a better way to challenge false paternity claims.  They now have relatively clear processes for defending themselves from these claims. 

New Divorce Options Presentation

I find that many clients are completely unaware that they can actually choose the process for resolving their family law or divorce issues.  

As many people are stunned to discovery, in North Carolina you don't have to go to court to resolve the issues of property division, cash flow, support (alimony and child support), and co-parenting (child custody).

While a legal divorce does require court action, the other and usually more pressing issues can be resolved privately, through a number of other processes.  

I have created a presentation that explains the basics of each process and briefly analyzes the pros and cons of each.  This was initially presented to a large Triangle company through its employee services program.  But, I think many more people can benefit from this information.

This informaiton may help you discuss your options with each other, and with any professionals that you consult.  

Feel free to contact me if you have questions about this information.  

Divorce and Taxes

As this article from Time Magazine points out, there are many tax issues involved in a divorce.   Even parents who have never been married (and therefore never divorce) face tax issues related to sharing time with their child.

There are special tax treatments for alimony, post separation support, property division, dependency exemptions, child tax credits, head of household status and a myriad of other issues in family law.  

While the five issues mentioned in the article about divorce and taxes are important, they are not the only issues involved.

I generally recommend that clients at least consult a CPA or other tax professional before and after their divorce to determine how the tax ramifications of the divorce may affect them.

A good family law attorney will understand most of the tax issues involved in divorce.  But, a family lawyer is no replacement for the advice of a good tax professional. 

Randolph (Tré) Morgan III is an experienced family law and collaborative divorce attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

FAMILY LAW QUOTE OF THE DAY

"The law should, when practicable, encourage the resolution of family issues without resort to court interference."

This quote is taken directly from a North Carolina Court of Appeals decision in a child support case. Even the courts think that most family law cases should be resolved outside of court! This is, in my mind, an admission that the courts are poorly equipped to find the best possible solution to family disputes. Yet another reason that parties should work very hard to resolve family law issues before going to court.

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IF YOU ARE INTERESTED IN LEGAL REPRESENTATION, PLEASE CONTACT ME BY EMAIL OR AT (919) 781-1311. YOU CAN ALSO FIND ME AT WWW.NICHOLLSCRAMPTON.COM (this site currently being updated).