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 Mandatory Mediation for Wake County Contempt Actions

There are two basic documents that can be used to resolve the legal issues of divorce, separation, custody issues and cash flow issues:  Separation agreements and court orders. 

The former is a contract between the parties.  The latter is a decree by a judge.

A party can enforce a separation agreement by filing a breach of contract lawsuit.

A party enforces a court order by asking the court to hold the non-compliant party in contempt. 

A contempt action is appropriate when one party is not doing what the court ordered them to do (or is doing something that the court ordered them not to do).

Contempt actions have become increasingly common.  Parties that cannot get along frequently file contempt actions against each other as a continuation of the fighting that led to their divorce or custody battle.

In fact, so many contempt actions have been filed in the last few years that the Wake County family courts have been swamped. 

In response, the Wake County family court has instituted a mandatory mediation program for all contempt actions. 

Now, every time someone files a contempt action against the other parent or their former spouse, both parties will have to attend mediation in the courthouse without attorneys. This mediation takes place at their first court date for the contempt action. 

This program is further evidence that the courts lack the resources to serve as the primary dispute resolution option for family law matters. 

It also shows that even the courts value and appreciate non-court processes for resolving family law disputes.

Randolph (Tré) Morgan III is an experienced family law 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.