This post is part two in a series on spousal support. If you missed part one, you can find it here: Spousal Support, Part 1: What is PSS?

How does a judge determine the amount and duration of an alimony award?

One of the goals of alimony is to ensure that a dependent spouse has adequate resources to meet his/her needs in accordance with the standard of living established by the parties during their marriage.  North Carolina does not have guidelines or a mathematical formula that can be used to calculate the amount and duration of an alimony award. However, North Carolina General Statute § 50-16.3A(a) provides a series of 16 factors that a judge must consider in determining the amount, manner of payment, and duration of an alimony award. Those factors include the following:

1.     The marital misconduct of either of the spouses;

2.     The relative earnings and earning capacities of the spouses;

3.     The ages and the physical, mental, and emotional conditions of the spouses;

4.     The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;

5.     The duration of the marriage;

6.     The contribution by one spouse to the education, training, or increased earning power of the other spouse;

7.     The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;

8.     The standard of living of the spouses established during the marriage;

9.     The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;

10.  The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

11.   The property brought to the marriage by either spouse;

12.   The contribution of a spouse as homemaker;

13.   The relative needs of the spouses;

14.   The federal, state, and local tax ramifications of the alimony award;

15.   Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;

16.  The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

Judges have broad discretion in determining the weight that they give to the statutory factors set forth above and any other relevant factors, as well as the credibility of witnesses and other evidence. Thus, there is no way to predict whether or not a judge will award alimony and, if so, the amount and duration of the alimony award.  In certain situations, such as if a dependent spouse is disabled, alimony may be awarded for an indefinite period of time.

When alimony is awarded pursuant to a court order, the alimony obligation will end at the first to occur of the following:

·       the date specified by the court in its order;

·       the death of either spouse;

·       the remarriage of the dependent spouse; or

·       the dependent spouse’s cohabitation.

If alimony is paid pursuant to a separation agreement or other legally binding contract entered into between the parties, then the terms of the agreement should specify the date or circumstances when the alimony will terminate.

When does a judge make a decision to award or deny alimony?

A party’s claim for alimony is usually determined after the parties’ equitable distribution claims have been determined, although a judge may determine an alimony claim on its merits prior to the entry of an equitable distribution judgment. In many situations, a judge will hear the equitable distribution and alimony claims during the same trial. This can lead to a lengthy trial, but it allows the court to consider the alimony award in view of each party’s income, expenses, assets, and debts after the division of marital property has taken place. For example, the distribution of income-producing assets to a dependent spouse may reduce that spouse’s financial need, or other significant changes may have taken place since the parties separated.

How does marital misconduct affect an alimony claim?

Adultery or illicit sexual behavior solely on the part of the dependent spouse will bar a dependent spouse from receiving alimony. The court can consider other types of marital misconduct as well, including marital misconduct on the part of the supporting spouse.

Siemens Family Law Group can help.

The broad discretion that judges have in determining alimony claims leads to unpredictability and a wide discrepancy in alimony awards. This uncertainty can make alimony claims difficult to settle and risky to litigate. It also underscores the importance of having an experienced and knowledgeable family law attorney representing you in pursuing or defending an alimony claim and presenting critical evidence to the court on your behalf.

At Siemens Family Law Group, we understand that divorce and related issues can have a major impact on your everyday life and financial security. You can count on our dedicated family law attorneys to offer practiced guidance and effective legal representation to help you achieve your goals. We provide assistance in all aspects of family law matters, including child custody, divorce, and pursuing or defending a claim for PSS and/or alimony.

This article is for information purposes only and is not to be relied on or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.