When it comes to alimony, the two big questions most people have are (1) how much, and (2) for how long. Neither is a simple question to answer. The law gives heavy discretion to the judge to determine how much and for how long, as it “It is a question of fairness and justice to all parties”, as stated in recent North Carolina caselaw. The general statutes state that “The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term.” To help guide the court in deciding the amount and duration of alimony, the statute lists sixteen factors for consideration. Three of those factors strongly swing the length of time one may have to pay alimony:
- The duration of the marriage
- The ages and the physical, mental, and emotional conditions of the spouses
- 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
The first factor above is the one most commonly associated with determining the length of an alimony award. The rule of thumb is alimony should last for the length of about half the marriage. For example, if the marriage lasted ten years, alimony should be awarded for the duration of five years. Of course, this rule is not intended to be strictly accurate or reliable for every situation.
The second and third factors are meant to take into consideration the future earning capacity of the dependent spouse. If a dependent spouse was not working during the marriage due to age, physical, or mental health, and is unable to work due to one of these issues, the court may award alimony be paid indefinitely, regardless of the length of the marriage. If the dependent spouse is in need of training or education to reasonably compete in the job market, the court may decide the duration based on the length of time necessary for the spouse to accomplish this. In some cases, the court may even order the supporting spouse to pay for the education and/or job training of their ex-spouse.
Is There Any Relief?
Suppose the court orders you to pay alimony to your ex-spouse periodically for a period of ten years, is there any way this order can change or terminate all together short of that expiration date? North Carolina law says yes. An order of the court may be modified or vacated at any time upon a motion and showing of a change in circumstances by either party. This change in circumstances often takes the form of a change in income, retirement, or disability of either party.
Court-ordered alimony terminates automatically by law upon the death of either party, remarriage of the spouse receiving the alimony, or by the dependent spouse cohabitating with another person. North Carolina law defines cohabitation for this purpose as two adults dwelling together continuously and habitually, with a voluntary mutual assumption of marital rights, duties, and obligations that are generally manifested by marriage. Cohabitation is often a source of litigation in court, as the line is very thin between staying a few nights together per week and cohabitation strong enough to terminate alimony.
When facing the prospect of paying alimony it is important to discuss all your options with an attorney that deals solely with family law. There is no calculator to determine how much and how long you will pay alimony and leaving it up to the discretion of the judge is a risk strongly cautioned against when it could mean five, ten, or even twenty years of paying your ex. Having an attorney who understands the likely outcomes and is able to negotiate the best settlement for you is far better than taking that risk in court.
Sarah J. Hink
New Direction Family Law