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 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.  

Common Law Marriage in North Carolina

My last post discussed the laws relating to unmarried domestic partners, i.e. couples who have lived together for a significant period and acted like they are married.

 One of the biggest misconceptions about the law of marriage in North Carolina is that there are “common law wives” or “common law husbands” in this state.  North Carolina does not grant common law marriages.

Other states do recognize common law marriages.  And, if two people were common law spouses in another state, and then moved to North Carolina, North Carolina may recognize the common law marriage from the other state. But, in or order to get married in North Carolina you have to have a marriage license and a marriage ceremony (in the courthouse or otherwise). 

Because North Carolina does not recognize common law marriages, North Carolina couples that have lived together, but have never been married do not receive the same rights accorded to married couples. 

These rights are significant.  Some of the most important ones are:

-  The right to ask the court to equitably divide property at the end of the relationship;

-  The right to seek financial spousal support from the other party at the end of the relationship;

-  The right to take a share of a spouse’s estate at their death (“elective share” in legalese); and

-  The right to receive spousal benefits from certain retirement plans and pensions.

The bottom line is that is that if you have any questions about whether you are legally married in North Carolina, you should contact a North Carolina family law attorney.  Otherwise, you risk missing out on important protections if your relationship comes to an end.

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, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.