Is Alimony Reform Headed to North Carolina?

As described in this article, Massachusetts has recently revised its alimony laws.

The lawmakers in that state established stricter guidelines as to the length of alimony payments, among other revisions. 

Could Massachusetts’s reforms begin a trend towards alimony law reforms across the United States, and more importantly for us, in North Carolina?

Currently, North Carolina has no guidelines that directly tie an alimony award to the length of a marriage.  Rather, the alimony statute lists “the duration of the marriage” as one of 16 factors that a court must consider in making an alimony decision.  The statute is silent as to the weight of each of the 16 factors. 

In practice, North Carolina judges have wide discretion in making alimony decisions.  With so many factors to consider and the freedom to give more weight to some factors and devalue others, alimony decisions can vary widely from judge to judge and from county to county.

Many North Carolina judges use a “needs and income” approach to alimony.  That means that a judge determines what income is available to the spouses, and then determines the financial needs (not wants) for each party.   After that, the judge can use the 16 factors in the statute to settle on a number that they believe is reasonable.

It appears that Massachusetts’s judges have retained some discretion on making alimony decisions under their new laws, but now have stricter boundaries for their decisions.

The question is whether other states, including North Carolina, will follow Massachusetts’s lead and move toward more defined rules for alimony decisions in the future. 

Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina

As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.

Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time.  The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front. 

 In North Carolina, same sex couples cannot be legally married.  So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.

For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.

But, both kinds of couples have the option of executing a co-habitation agreement. 

This kind of agreement can set forth the understanding of how the relationship will operate.  For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work.  Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).

More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end.  The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up.  They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…). 

Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out.  And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement. 

As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea. 

From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship.  Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.  

Does Making Divorce Easier Protect Marriage?

I recently had a conversation with a Collaborative Divorce attorney in Rome, Italy (the internet is an amazing thing).  He told me that in Italy, a couple has to wait 5 years before a court will grant a divorce. 

I was stunned, as even the longest “cooling off” periods in the United States are not that long. 

He indicated that this lengthy waiting period might be having an interesting effect on marriage rates in Italy.  He felt strongly that the lengthy waiting period was actually driving the marriage rate down.  He observed that young people in Italy were more reluctant to get married because it was so hard to get out of the marriage if it went poorly.  He even indicated that this was a factor in a falling birth rate in Italy (apparently Italians are less inclined towards single parenthood than Americans).

In the Southern United States, and North Carolina particularly, laws are designed to protect and promote marriage.  North Carolina requires a one-year separation period before either party can even ask a court for a divorce.  Ostensibly, this is to prevent people from making hasty decisions about divorce.  The thinking is this: “If we make it hard to get divorced, then less people will get divorced.”

The Italian situation presents an interesting question though:  At what point do the lawmakers’ efforts to protect marriage actually start backfiring?  Is it possible that people in this country or this state are less inclined to marry because divorce is so hard?  Is it possible that our divorce laws are actually driving down the marriage rate, instead of driving down the divorce rate? 

I am not aware of any scientific research on this topic.  But, it presents an interesting policy debate.  Perhaps marriage as an institution is best served by making divorce easier, instead of harder.

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.  

Legal Separation In North Carolina

Clients frequently ask me whether they can be legally separated if they are still living in the same house.  They ask whether it is sufficient to sleep in separate bedrooms, live in different parts of the house, or arrange a schedule where they are never home at the same time.  There are countless scenarios in which a couple is emotionally separate, but not legally separated.

This idea of an "in-house separation" makes sense in tough economic times.  Many couples cannot afford two leases or mortgages.  But, they don't want to wait forever to be eligible for divorce. 

The problem is that in North Carolina, in almost all cases, the parties have to be physically separated for 12 continuous months before they can even ask for a divorce.  (There are some rare exceptions to this rule, but they are beyond the scope of this post).

In North Carolina, legal separation means living in separate dwellings.  No matter how "separate" your lives, you have to live in separate dwellings to actually start the 12 month separation period in North Carolina.

Other states, notably Virginia, may allow in-house separations.  But, North Carolina does not. 

Each case is different, and everyone should consult an attorney about their specific case and situation before making decisions.  But, at least to date, North Carolina does not recognize in-house separation.