THE JOHNSON LAW FIRM QUESTIONS AND ANSWERS
ON ALIMONY:
1. Question: Is alimony allowed in North Carolina?
Answer: Yes. A new law was passed effective October
I, 1995, and it substantially rewrites all the law
about alimony in North Carolina. In this state court-ordered
spousal support is based primarily on need. There
are two kinds of court orders for spousal support
that exist under state law -- postseparation support
and alimony.
2. Question: Is the court ever required to order
postseparation support?
Answer: Yes. Postseparation support [or PSS] must
be ordered for a dependent spouse whenever the court
finds that... 1. her (or his) financial resources
aren't enough to meet her reasonable monthly needs
and personal living expenses; and 2. the supporting
spouse has the ability to pay.
3. Question: What criteria does the court have to
consider In determining these two issues?
Answer: There are several, including the financial
needs of the parties, their accustomed standard of
living, the current employment income (and other
earnings) of the parties, their earning abilities,
their debts, their reasonable living expenses and
each party's legal support obligations -- for each
other, for a former spouse, for their minor children
and for other minor children of only one of the parties.
4. Question: Can my husband stop me from getting PSS
by proving that I've committed adultery?
Answer: Adultery by the dependent spouse isn't a bar
to PSS, but the judge is allowed to consider any
marital misconduct by her (or him) in deciding whether
to allow PSS and how much to award.
5. Question: What is marital misconduct?
Answer: This is a new term that replaces the old "fault
grounds" that used to be required for alimony
in this state. Marital fault includes abandonment
(both actual and "constructive"), cruel
and barbarous treatment endangering a spouse's life,
malicious turning out-of-doors, alcohol/drug abuse, "personal
indignities" that render one's life burdensome
and intolerable, reckless spending or waste of assets,
willful failure to support, and illicit sexual behavior.
6. Question: What in the world is illicit sexual behavior?
Answer: Illicit sexual behavior is any sexual misconduct,
including adultery as well as any form of intercourse
with a person not your spouse, whether heterosexual
or homosexual.
7. Question: When does marital misconduct have to
occur?
Answer: The new statute makes it clear that this misconduct
must occur at or before the date of separation of
the parties; post-separation misconduct is not allowed
as evidence except to corroborate, or help prove,
pre-separation marital misconduct.
8. Question: If my wife (or husband) is guilty of
marital misconduct, is that where the case stops?
Answer: No. Whenever there is evidence of marital
misconduct by the dependent spouse -- the wife, in
this case -- the judge must also consider any marital
misconduct by the supporting spouse. Thus the conduct
(or, in this case, "misconduct") of both
parties will be subject to scrutiny if the supporting
spouse attempt to point out the flaws or faults of
the dependent spouse.
9. Question: When does PSS end? Does it go on forever?
Answer: PSS terminates at the earlier of...
1. the date set by the court for termination, if
any;
2. the date of death of either party;
3. the occurrence of the remarriage or cohabitation (see discussion below)
of the dependent spouse; or
4. the date on which alimony (see discussion below) is allowed or denied.
10. Question: What about alimony, does that still
exist?
Answer: Oh, yes -- alimony is still "alive and
well" in North Carolina. The approach to alimony,
however, is somewhat different from that involved
in postseparation support.
11. Question: Must "fault" be shown to obtain
an award of alimony?
Answer: No. The new statutes deleted the "fault
requirement"; under the new law, alimony is
to be granted if...
1. the claimant (or party requesting alimony) is
the dependent spouse;
2. the other party is the supporting spouse; and
3. an award of alimony is equitable under the circumstances after considering
numerous factors set out in the statute.
12. Question: What are these factors that the court
must consider?
Answer: There are 15 of them. They include such items
as...
1. The marital misconduct (see discussion above)
of either spouse;
2. The earnings, unearned income (dividends, interest, rent, etc.), earning
capacities and needs of the parties;
3. The length of the marriage, the standard of living of the parties during
the marriage, and their respective contributions as homemaker; . The ages
and the physical, mental and emotional conditions of the spouses; . How each
party has contributed to each other's education and increased earning power;
. The impact of either parent being custodian of a minor child; . Each party's
education and the time needed to educate or train a spouse to become self-sufficient;
4. The assets and debts of each party, whether separate or marital;
5. The tax impact of alimony (see discussion below); and
6. Any other economic factor that the court finds proper for consideration.
13. Question: What if a party is found to have committed
adultery. Does that have any impact on the alimony
case?
Answer: Yes. The statute covers three possible scenarios
regarding illicit sexual behavior[ISB], the new term
that includes, but is broader than, adultery:
1. If the dependent spouse only is found to have
committed ISB, then no alimony can be awarded and
the case is over;
2. If only the supporting spouse has committed an act of ISB, then the court
must award alimony to the dependent spouse; and
3. If both parties have committed ISB, then the court has the discretion
to grant or deny alimony based on all the circumstances.
As stated earlier in the question on marital misconduct
in general, any act of ISB must occur at or before
the date of separation of the parties; post-separation
ISB may only be used as corroborating evidence to
prove ISB occurring at or before separation.
14. Question: How can alimony be paid?
Answer: The law gives the judge the power to order
alimony on a periodic basis -- which is usually the
case, ie., in a monthly sum paid directly to the
claimant or paid through the Clerk of Superior Court.
It can also be paid in a lump sum, such as "the
sum of $5,000 due on October I of this year" or
even "the sum of $5,000, due in monthly installments
of $500 each for ten months." Alimony can be
paid indefinitely or for a specific period of time,
such as "for the next 24 months." The judge
has these options for PSS also.
15. Question: When does alimony end?
Answer: Alimony ends at the earlier of...
1. the date set by the court for termination, if
any;
2. the date of death of either party; or
3. the occurrence of the remarriage or cohabitation (see discussion below)
of the dependent spouse.
16. Question: What is cohabitation?
Answer: The law defines cohabitation as two adults
living together continuously in a private heterosexual
or homosexual relationship.
17. Question: Are there any other ways to stop alimony?
Answer: There are two legal acts that will bar the
award of alimony (or PSS) in the first place.
One is the granting of a judgment of absolute divorce with no claim pending
for alimony. One of the effects of absolute divorce is to bar a claim for
alimony if it has not been asserted in a pleading before the divorce is granted.
The second bar is found when there has been a waiver of alimony in an agreement
of the parties. A separation agreement can contain a waiver of alimony, and
so can an antenuptial agreement. When a party gives up a right to alimony,
she or he may not thereafter go back and retrieve the lost support right.
18. Question: What is a dependent spouse?
Answer: A dependent spouse is one who is actually
and substantially dependent upon the other spouse
for support or who is actually in need of support
from the other spouse.
19. Question: What is a supporting spouse?
Answer: The supporting spouse is one who is actually
capable of providing support for the alimony claimant.
If there is no "surplus" when the reasonable
needs of the defendant are subtracted from his net
monthly income, then it is arguable that he is not
the "supporting spouse." Be careful with
this sort of logic, however, since most alimony defendants
will claim poverty and proclaim loudly their inability
to provide spousal support. It is up to the judge
to make a determination of the amount of the defendant's
reasonable monthly needs so that the court can then
find out how much money is "Ieh over" to
be used as alimony or PSS.
20. Question: Are there any "alimony guidelines"?
How Is the amount of alimony determined?
Answer: The amount of alimony is up to the judge.
Although in some cases there may be an award of limited-term
alimony, a more likely approach by the judge, however,
would be to grant an open-ended award of alimony,
open to review by the court upon a motion alleging
grounds for modification, namely, a substantial change
of circumstances since the date of the original court
order. Unlike the area of child support, there are
no clear guidelines as to the amount of alimony.
The award is completely in the discretion of the
court, subject to the "factors" listed
above for alimony.
As a practical matter the judge will usually attempt
to find out what the unmet needs of the claimant
are. This is the difference to her reasonable monthly
needs and expenses and her net monthly income, if
any. This amounts to the amount "deficit" which
must be filled in order to support her properly.
Next the judge will attempt to find out what the "excess
income" of the defendant is. If this exists,
it becomes the "surplus" which is applied
against the "deficit" in order to support
the claimant properly. The judge will often take
the deficit of the plaintiff (or thesurplus of the
defendant) and convert it into the amount of alimony
to be paid in a case, although this ignores the tax
consequences of alimony set forth below.
21. Question: Must taxes also be considered in deciding
the amount of alimony?
Answer: Yes. Alimony is taxable to the payee and deductible
by the payor. This is an important factor to remember
when calculating alimony in negotiations. If Mrs.
Smith needs, for example, $1000 per month to meet
the "financial deficit" she is experiencing,
then she may need about $1500 of taxable alimony
in order to net out $1000 of post-tax support. By
the same token, if Mr. Smith is able to pay $1000
per month in alimony based on his income and reasonable
monthly needs, this is $1000 after taxes, and the
real amount of alimony he should be able to afford
might very well be about $1500 with the tax break
he gets by deducting this amount from his income.
This hypothetical assumes the parties are in a 28%
federal tax bracket and paying about 7% state taxes,
which is the rate in North Carolina. In other words,
a deductible sum of $1500 per month will equal approximately
$1000 per month after taxes for one in these tax
brackets, which is the correct way to figure alimony
amounts.
22. Question: Are there any other tax considerations
in claiming a deduction for alimony?
Answer: Under the IRS Code there are several mandatory
provisions that are required for alimony to be taxable
to the payee and deductible by the payor. The obligation
must be in writing is one such requirement -- and,
of course, a court order passes this test. In addition,
it is required that payments end at the payee's death.
These are also requirements of state law. Finally,
tax filing status is important also. Alimony is only
deductible for the payor, and taxable to the payee,
if the parties file separate returns. It cannot be
deducted on a joint tax return.
23. Question: What is the procedure in a spousal support
case?
Answer: There is no single "best" way to
proceed, but a common approach would be to file a
complaint for postseparation support and alimony
and to schedule promptly a hearing on the claim for
PSS (since that is solely before the judge). At a
later time, the court would hear the claim for alimony,
perhaps after the divorce of the parties or after
their equitable distribution case had been decided.
In an alimony case, either party can request a jury
to determine the marital misconduct issues, but that
it all the jury does -the judge makes the determinations
of dependent and supporting spouse, assesses the
factors and decides the amount of alimony.
24. Question: Is any other relief available?
Answer: Yes. As part of an alimony or PSS award, the
court may also:
1. Award attorney's fees from the defendant to the
claimant. Such fees are sometimes paid in a lump
sum and sometimes in installments.
2. Grant exclusive possession of real or personal property (or title to personal
property) to the claimant. This means, for example, that the court can grant
to
Mrs. Johnson the use and possession of the Ford station wagon or, for that
matter, the use and possession of the marital residence, exclusive of Mr.
Johnson. This amounts to an eviction order against the defendant, forcing
him to leave the house.
3. Make provision for medical expenses. This typically includes medical insurance
coverage and the responsibility for payment of uncovered health care expenses,
either in part or fully.
25. Question: What if' have other questions?
Answer: You need to come in to the Johnson Law Firm
and speak with an attorney. Nothing you read on this
website is legal advice. You should not make any
decisions unless you are advised by a licensed North
Carolina attorney.
The Johnson Law Firm would like to thank Sullivan & Grace,
P.A. for use of material.
THE JOHNSON LAW FIRM QUESTIONS AND ANSWERS ON WHAT
TO DO IN THE COURTROOM:
1. Question: My case is going to trial. What do I
do? And what should I say?
Answer: We have prepared some suggestions. These suggestions
are not legal advice. You will need to speak with
an attorney at the Johnson Law firm about your case
to get legal advice for your particular case.
Suggestion I. Tell the truth. No one expects perfection,
but if you tell the truth you will not be tripped
up on cross-examination and the judge will believe
you.
Suggestion 2. Do not guess. "I don't know" or "I
don't remember" are acceptable answers, but
guessing can get you into trouble on cross.examination.
Remember.- there's a real difference between "No" and "I
don't remember." For example, if you answer
on cross that you don't remember whether something
happened it means that it mayor may not have happened.
If the event could not have happened, then your answer
should be "No." If you are asked, "Isn't
it true that you kept $20,000 in a safe deposit box?" the
answer is clearly "No, that is not true," as
opposed to "I don't remember."
Suggestion 3. Be sure you have heard and understand
the question. If you don not hear a question or do
not understand it, do not try to answer based on
what you think the question was. Instead, simply
ask opposing counsel to repeat the question. Always
wait for the lawyer to finish the question before
beginning your answer. This may be difficult advice
to follow. Remember, a question may actually contain
several questions requiring several answers one at
a time.
Suggestion 4. Take your time. Use good judgment in
answering questions. Consider every question and
give it some thought, if necessary, but do not look
like you are stalling for an answer.
Suggestion 5. Speak loud enough for everyone to hear.
Do not chew gum. Keep your hands away from your mouth.
Remember that you must verbalize your answers, not
just nod your head. The court reporter must write
down everything you have to say.
Suggestion 6. Look at the Judge. From time to time
during your testimony, especially at important points,
look the judge straight in the eye. Don not forget
that the judge is the person who must be persuaded
by what you have to say.
Suggestion 7. Do not argue with op-posing counsel.
Keep your composure no matter what the other lawyer
or your spouse does. Never lose your temper or let
them provoke you. The judge may excuse a lawyer who
misbehaves in the name of zealous advocacy, but if
you act out, it will affect your credibility. The
ruling of the judge will usually reflect a definite
dislike for the person who is angry or flippant.
Suggestion 8. Be courteous. Say "yes, sir" or "ma'am" to
opposing counsel, and if you must address the judge,
use "Your Honor." Sometimes the other lawyer
may interrupt you while answering. Let her finish
the new question and then say: "Before I answer,
I need to finish my answer to the last question."
Suggestion 9. Do not make jokes or wisecracks. Remain
a lady or gentleman at all times. Be honest, straightforward,
and courteous. Watch the tone of your voice.
Suggestion 10. If you hear an objection stop answering
immediately and say nothing until the judge rules
on the objection. "Overruled" means you
must answer, "sustained" means you must
not. Do not worry about remembering legal terminology.
Either the judge or the lawyers will tell you what
to do. Never interfere with dialogue between the
judge and lawyers about objections or other matters.
Suggestion II. Do not answer a question with a question.
Opposing counsel is not on trial. Any combativeness
toward that lawyer will irritate the judge.
Suggestion 12. You must answer every question. Do
not bother to ask your lawyer or the judge if you
must answer a particular question; unless an objection
is made and sustained, you must answer.
Suggestion 13. On cross-examination, when you are
being cross-examined the other lawyer will be asking
you questions that, typically, require a "yes" or "no" answer.
Remember -- that other lawyer is trying to get you
to make statements that will hurt your case. Do not
simply react to a question; it's important to think
about your answers. Also, if the "yes" or "no" response
that you give does hurt your case, the next words
out of your mouth should be, "But can I explain?" The
judge may allow you to explain your answer which
will lessen or completely remove the damage that
would have been done by a simple one word response.
Suggestion 14. Be positive and firm in your answers.
You know you are telling the truth and you are well-
prepared, so do not be intimidated by the other lawyer.
If you are worried about your answer, do not show
it. Do not memorize what you are going to say. Memorized
testimony is not believable.
Suggestion 15. It's OK to cry. Don't be surprised
if during your testimony you become emotional and
cry. It can be upsetting to talk about personal matters
in Court. The judge will understand, and, in fact,
it may add to, rather than detract from your credibility.
If you need a tissue, a drink of water, or a break
to compose yourself, just ask the judge for permission.
Suggestion 16. Remember that the judge is watching
you. Not only during your testimony, but also at
counsel table. Do not overreact during the testimony
of other witnesses. Do not lose your temper. It doesn't
make points with the Court, and it usually lessens
the judge's respect for you.
Suggestion 17. Write notes to your attorney during
trial. If you want to communicate with your lawyer
while someone is testifying, write a note. Do not
nudge or whisper to your attorney. It may be possible
to listen, read and write at the same time, but no
one can listen to the witness, the lawyer, and the
client all at the same time.
2. Question: What if' have other questions?
Answer: You need to come in to the Johnson Law Firm
and speak with an attorney. Nothing you read on this
website is legal advice. You should not make any
decisions unless you are advised by a licensed North
Carolina attorney.
The Johnson Law Firm would like to thank Sullivan & Grace,
P.A. for use of material.
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