Raena Burch: [00:00:00] Is alimony required in a divorce?
Jonathan Breeden: Alimony is not required in a divorce. You are only eligible for alimony if you are considered a dependent spouse. And a dependent spouse is some spouse that cannot pay their reasonable bills with their income.
And so, if your income and if you’re receiving any child support does not cover what you believe or what ultimately a judge believes are your reasonable bills, then you were considered a dependent spouse. But in order to receive alimony in a divorce, you also have to have a supporting spouse. So the other spouse has to have money left over after they pay their reasonable bills. And their child support to you, if they owe child support.
Narrator: Welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced [00:01:00] family lawyer with a deep connection to the community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.
Jonathan Breeden: Hello, and welcome to another edition of The Best of Johnson County Podcast. I’m your host, Jonathan Breeden. And today, we’re going to have a special episode of The Best of Johnson County Podcast that we like to call, Ask Jonathan Breeden Anything.
And in this, episode, we’re going to have our social media coordinator, Raena Burch, ask me varying family law questions as it relates to alimony, and spousal support. And I’m going to do my best to answer those questions.
Normally on this podcast, Jonathan Breeden, I interview interesting guests from the community, from small business owners to community leaders. And we do those most of the time. And then we have these special edition episodes that we call Ask Jonathan Breeden Anything.
But before we get [00:02:00] started, I want to encourage you to like, follow or subscribe to The Best of Johnson County podcast, wherever you are seeing this podcast today. So that you’ll be made aware of future episodes of The Best of Johnson County podcast.
The Best of Johnson County podcast comes out every Monday. So check back every Monday for new and exciting guests. And if this is your first time listen to this podcast, go back and listen to some of our previous podcast with County Commissioner Patrick Harris, County Parks and Rec Director Adrian O’Neal, local Dentist Tim Sims, local Financial Advisor Chris Key, Miss Teen America Hanley House, and many other great guests that have been on over the previous episodes.
And I think, you’ll learn a lot about Johnson County and why they love Johnson County as much as we do. Are you ready, Raena?
Raena Burch: I’m ready. Are you ready?
Jonathan Breeden: Alright, here we go.
Raena Burch: Okay. Let’s do it.
First one, is alimony required in a divorce?
Jonathan Breeden: Alimony is not required in a divorce. You are only eligible for alimony if you are considered a dependent spouse. And a dependent [00:03:00] spouse is some spouse that cannot pay their reasonable bills with their income.
And so, if your income and if you’re receiving any child support does not cover what you believe or what ultimately a judge believes are your reasonable bills, then you were considered a dependent spouse. But in order to receive alimony in a divorce, you also have to have a supporting spouse. So the other spouse has to have money left over after they pay their reasonable bills. And their child support to you, if they owe child support. So the supporting spouse has to have a surplus, and the dependent spouse has to have a short fall. If you have both of those things, and that’s not easy given what it costs to live around Johnston County right now with inflation and what the average incomes are, then a court could order the [00:04:00] supporting spouse to pay some of their surplus to the dependent spouse so that they could pay their bills.
The trick Raena is, what is a reasonable bill? And what you believe to be a reasonable bill, and what I believe to be a reasonable bill may not be what a judge believes to be a reasonable bill.
My lifestyle in a divorce doesn’t change or by law, it can’t be made to change. That’s not true because there’s not enough money to go around most of the time. And the overwhelming majority of people that go through divorce are going to have a lifestyle change.
The majority of Americans, the Vice President Kamala Harris said, you know, just a few weeks ago that 54% of American households couldn’t pay $400 car repair without having to go to a credit card. So when you have most American households, as are the ones here in Johnston County, just getting by and living check to check and having very little [00:05:00] in savings, and now all of a sudden, you got to have two separate households, two rents, two water bills, two phone bills, two car insurances, two of everything, it’s not likely that both sides lifestyles are not going to have to change somewhat significantly when they go through a divorce because in the majority of divorces, you do not have a supporting spouse and a dependent spouse.
Yes, we do see them. We do Alabama to bring law office every day. We do those cases every day, but it is not nearly as common as people who coming in here thinking that they’re eligible for it that actually end up being eligible because you don’t have both. We have a lot of dependent spouses, but we don’t have as many supporting spouses as we have dependent spouses.
Raena Burch: And so. I mean, it could be obviously the stay at home parents would be a dependent spouse, but also, you know, maybe if there’s just a drastic difference in income, like you were saying, if their income doesn’t cover it, but the supporting [00:06:00] spouse’s income is you know, 2, 3, 4 times what the other spouse makes. That could also be a possibility for alimony.
Jonathan Breeden: Correct. And one thing I think a lot of people mistaken, particularly if you’re the dependent spouse is, that supporting spouse gets to pay rent, that supporting spouse gets a car payment, that supporting spouse gets food, that supporting spouse gets to pay a water bill, the supporting spouse gets to pay all their reasonable bills before they have anything left over. that can be expensive when rent around here is $1,500.
And so, I think they come here and say, well, I don’t make very much money or I’ve been staying home and he’s going to give me 4 or $5,000 a month. Um, And that may not be the case because he’s going to have his own reasonable bills that can easily be 3 or $4,000 a month.
And if they already pay a thousand dollars in child support, there’s no money left for alimony. that’s, what we run into is that supporting spouse, even if they were a bad husband or they were [00:07:00] abusive or whatever, doesn’t have to live under a bridge.
Raena Burch: Yeah.
Jonathan Breeden: And they don’t have to live on somebody’s couch. They get to have their own reasonable bills to take care of themselves before court is going to order them to pay you extra money over and above child support
Raena Burch: And I think, a lot of people are under the misconception that the only time you will get alimony is if you don’t have a job and you’re completely and utterly dependent on. like, that’s, That’s not the case either.
You can also have a job, it’s just a disparaging difference in income.
Jonathan Breeden: Correct.
Raena Burch: Okay, two, we just covered that, how is alimony determined? Like you said. They just take all the bills into account and whatever, if there’s anything left over.
Right.
Jonathan Breeden: And so basically, if, the case is going to court, if you can’t settle it, each side would file a financial affidavit and they would list all of the bills they had prior to the date of separation and all of their current bills.
And they would put their gross income, all sources of income, their deductions, whether it be their taxes or health insurance, you know, those types of things, daycare, whatever. And then, they list out all their bills and you just add it up. And [00:08:00] you know, if you’re a dependent spouse, your bills, when you add them up, probably add the average person 4,000-4,500.
And maybe your income is after taxes and child support is about 3,000 or 3,500. So, you’re short about a thousand dollars. You know, The supporting spouse is going to do the same thing. And he’s going to put down his bills, including, let’s say he’s paying a thousand dollars in child support, and his $1,500 in rent, and his bills are going to add up 4,000, $4,500.
The question is, if that supporting spouse only nets $4,500, which is what you would net if you’re making about 70 or $75,000 gross after you pay taxes, then he doesn’t have anything left to pay over to the dependent spouse. And that’s where it starts to get real tight. It costs about 60-65% more to live apart, then together.
And so, when you have people that are separating, there’s not going to magically, unless somebody gets a big pay raise. There’s now not going to be 60% [00:09:00] more net disposable income for these people to divide. So each side is going to have to cut their lifestyle and cut their bills.
Raena Burch: All right. Three, are there any rules or laws regarding how long a party has to pay alimony if they are ruled paid?
Jonathan Breeden: Not in North Carolina, North Carolina No. says that is in the discretion of the district court judge in making the ruling. There are things that the court should consider in determining the amount of the child of the alimony and the length.
The number one thing the court is going to look at is the length of the marriage. The next thing the court is gonna look at is the length of time the parties have been earning the income that they’re in. If the wife has been staying home or the husband’s been staying home and the other spouse has been mainly working outside the home for a long period of time, the court has to consider, how long is going to take that spouse who’s not been in the workforce to get [00:10:00] educated, and be able to get a job, and get back into the workforce. It has to consider that. It has to look at the amount of money. It looks at the amount of money each side is getting in the property distribution in the divorce.
They’re not really supposed to, but they do. and you know,
if, you’re getting a million dollars out of my 401k Raena, they have to consider that. And how long you’re going to get alimony from me if I’m ordered to pay you alimony. They also look at marital fault in determining the length, the length of time for alimony. Did somebody cheat? Were they abusive? Did they commit other acts of mental misconduct?
Now, of course, if you are a dependent spouse and you had an extramarital affair, then you cannot collect alimony by rule. So, if you had a, sexual relationship with somebody that was not in your marriage while you were married before you were separated, that is an absolute bar to alimony if you’re a dependent spouse.
And so, it may make you get a longer [00:11:00] period of time and maybe a little bit more money if the supporting spouse did it, but it is an absolute bar on a dependent spouse.
Raena Burch: Okay. So, is there anything else that disqualifies you for allowing?
Jonathan Breeden: If you are living with or marry somebody else. So, If you are a dependent spouse and you start living with a significant other, whether it be a boyfriend or girlfriend, and y’all are in a committed relationship and you’re sharing bills, you don’t get alimony.
And if you remarry, you then don’t get alimony because it is to support the now single dependent spouse. But at the point you start living with somebody, or you start, you marry somebody else, you’re no longer single, and that unit needs to support you, not the former husband or former spouse.
Raena Burch: Okay, but it has to be obviously a significant other, we’re not talking like a roommate situation.
No,
Jonathan Breeden: No. It has to be in a committed relationship where you’re sharing bills and you know, you’re together, but not [00:12:00] just your best friend.
Raena Burch: Yeah. So, it’s not roommate or family. It’s you know, another committed, significant other.
Jonathan Breeden: Correct.
Raena Burch: Got it. How long do you have to be married to qualify for alimony?
Jonathan Breeden: One day. The statute does not have a minimum.
Raena Burch: Oh wow.
Jonathan Breeden: The statute doesn’t have a maximum. The statute, there’s no chart. Some States have alimony charts that say, this many years, this much income you pay this much.
They actually have a go by chart. That’s not binding that the judges sort of follow in Orange County around Chapel Hill in North Carolina, but we don’t have that anywhere else. is something that is can be awarded to any spouse based on the length of the marriage. And a marriage can be one day.
it has been our experience that the sort of own written rule that judges tend to follow is half the length of the marriage. But I’ve seen it be longer than the entire length of the marriage. And I’ve seen it be 2 or 3 years on a 15 year marriage. And I think, the judge thought there was this person’s going to community college. They’re going to get this degree and they’ll be back out working you know, in a short [00:13:00] period of time.
The overwhelming majority of Americans who divorce remarried within 5 years. So, even if you see an alimony award of 10 or 15 or 20 years, it is rarely paid because the vast majority of Americans get remarried within 5 years.
Americans like to be married. They like to be in relationships. They like to move on with their lives. It’s financially beneficial to be in a committed relationship. A lot more beneficial to have partner that you’re sharing all the bills with, who has a job versus this little bit of alimony you may be getting. You should be thinking about that when people are like, Oh, they want 10 years of alimony. I’m like, but yeah, I tell my class, like, but what are the odds? They’re not going to remarry within that 10 years, right?
so, you know, It just depends. Sometimes the court looks at the, you have children with disabilities or are children that become adults with disabilities that may allow them, you may see an alimony award be longer because child support is going to end whether the child’s disabled or not at 18, or maybe it could be longer if they’re still in high school. But I’ve seen judges to [00:14:00] help care for what would become in a disabled adult. so
Raena Burch: It really isn’t one parent is taking on more responsibility, right?
Jonathan Breeden: Right. It really is in the discretion of the court. And the court of appeals is rare to overturn an alimony award.
So really, you need to have good lawyers that are advocating for you. You need to have your, finances in order. Your financial affidavit needs to be the exact as possible. It doesn’t need to be guesses. You know, You need to have documents to back up your financial affidavit as to what these bills are. and you know, you need to have a good lawyer that’s prepared that they knows the judge they’re going in front of. In an attempt to either get you as much alimony as possible, or limit the amount of alimony you have to pay.
But in our case with the Breeden Law Office, the majority of alimony cases are settled outside of court.
We seem to be able to work most of them out with the other attorneys because everybody, you just don’t know. You go to court. It could be anything. You really don’t have any idea, but if you settle, it’s a lot cheaper and you have control of the outcome.
Correct.
Raena Burch: would that be [00:15:00] like in a separation agreement?
Jonathan Breeden: Or even a consent order or even
a consent order. And alimony, a Raena is not, permanent, right? Like It gets awarded, but if, circumstances change, if you have a court order, you can go back and modify it. You have a separation agreement, maybe not. But if a court order, you can go back and modify it with change of circumstances, just like you could modify a child support order based on change of circumstances. Your income goes down, substantially. The other sides that supporting spouses income goes up, substantially. you know, Anything that changes, you know, how dependent the dependent spouse is, or how if the supporting spouse can still support that suspended spouse allows you to go back to court and have the court refigure it, as well.
Raena Burch: Yeah. So It’s adjustable, depending on the current circumstances, not the past circumstances. Correct. It’s It’s just better for everybody.
Jonathan Breeden: Correct. Unless it’s in a separation agreement. And that’s the same reason we talked about on a previous episode, why you don’t want child support and separation agreement because that’s held to the four corners of the document.
Alimony is the same way. I try not to put alimony into separation agreements if I can help it, because you just don’t know what’s going to happen in the future, [00:16:00] unless it’s going to be a very short term.
Raena Burch: Okay.
Have family law questions? Need guidance to navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.
Raena Burch: So, how does someone file for alimony? Is it in the same, cause I know there’s different courts for the different pieces of divorce. Right. Okay. So Like child custody court, there’s child support court, There’s like, and those are all different.
Jonathan Breeden: Right. They’re all part of district court in North Carolina. So all the family law statutes, alimony, child custody, child support, divorce, equitable distribution of property is all covered by the district courts in North Carolina.
And you can file all of those claims together in a single lawsuit in district court in the county where you reside. You can file them at one time if you want [00:17:00] to, or you can file them separately, or you can bring them as a motion. Bring out all these emotion in an ongoing case that’s already going on.
So you have to file it with the courthouse, with the clerk in the district court level and get a file number. And then, if you can’t reach an agreement, you have to then schedule it for a trial in front of a district court judge, where you would go and present your financial affidavit, your bills, tell your story of where you’re at, how you got here, what you’ve earned, the history of what you’ve earned, your educational background, what you believe you’re going to be able to earn, the jobs you’ve looked for, the hours you’re working. Each side go and tell that story to a district court judge, and then a district court judge will make a decision as to whether alimony should be awarded or not.
Now, the precursor to alimony is called post separation support. It’s the same thing, practically. It’s to the supporting spouse, giving money to the dependent spouse for the dependent spouse to be able to pay their bills. And so, we have a lot more post separation support hearings than we do alimony hearings, [00:18:00] because oftentimes, once we see what the post separation support is going to be, and that’s more immediate, and it only lasts most post separation support orders are for 12 months or until an alimony order is entered.
But it’s the same type of hearing. It’s just shorter and more limited to the financial evidence. If you don’t get into the fault quite as much unless somebody had an affair. And it’s a quicker hearing. It’s a hearing that in Johnson County can happen within 4-6 weeks of separation. In Wake County, it’s more like 3-4 months of separation. And you can start getting money quicker. And you often do it at the same time as you would do temporary child support. But you have to file for it at the courthouse in the district court and have a hearing with district court judge. If you can’t agree, and if you do agree, you can do a consent order that you present to a district court judge and have the district court judge sign it.
Raena Burch: there a limit on when you can file or it has to be before you’re officially divorced Yes you have to file for spousal support post separation support and alimony before the date of divorce. If they’re not filed before [00:19:00] the date of divorce, they are lost forever.
Now in North Carolina, you can’t get divorced until you’ve been separated for a year and a day.
And then, that process takes about
Jonathan Breeden: 8
weeks. So, it’s really about 14 months from when you separate to when you’re actually divorced in North Carolina, if you do it as soon as you can. So, you have to bring the action in that 14 months for support or it’s lost.
Okay. And is there such a thing as permanent alimony?
There is.
And a permanent alimony award would be an alimony award that would last until the death of the dependent spouse or the debt of the death of the supporting spouse. So, alimony ends at the death of either spouse. And a permanent alimony award orders that the supporting spouse pay the dependent spouse until one of them dies.
You used to see them a lot more 20, 25, 30 years ago, than you see today. It is very rare to see a permanent alimony award in today’s [00:20:00] society as women have become more in the workforce, more educated. Women now often earn more than men. We have several cases right now where women are paying men. Post separation support alimony, which we used to never see when I started doing this, 24 years ago. But yes, you can still have a permanent award of alimony.
I have not seen one, but one time in my career that’s come through the breed law office, I know they’re still out there, but they are extremely rare now. And I would think to see that. There would have to be a lot of money involved to where there are assets that are spinning off income every month, because that supporting spouse gets to retire too.
And so, for that person to be able to pay while they are retired for 20 or 30 years, that means they have a significant number of assets that are going to pay them, whether it be dividends, businesses or whatever, even though they are not actually still working, that would allow them to [00:21:00] continue to pay the other person while they are retired.
That’s about the only way you would see a permanent alimony award now. And that would be, I’m sure, after some 30, 35, 40 year marriage you know, where it’s just not where the supporting spouse is going to be able to go back in the workforce and really earn a whole lot. They’re probably in their 60s maybe even in their early 70s, if you’re going to see a permanent alimony reward, just in my opinion now.
So anyway, right,
right, right. So Anyway, but the unwritten rule, half the length of the marriage, that’s what we see more than anything else. But unfortunately, particularly here in the last 3 or 4 years with inflation, we’re seeing fewer and fewer post separation support alimony awards, because the cost of living has gone up so high that the supportings, there’s just not as many supporting spouses as there used to be given what it costs to live now in this area.
So anyway, well, Anyway, I’d like to thank Raena Burch for coming on and asking us these questions about alimony today. If you have [00:22:00] any questions about whether you may be entitled to alimony or the amount of alimony you’re receiving, or the amount of alimony you’re paying, or whether you may have to pay alimony, feel free to reach out to us here at the Breeden Law Office. We’ll be glad to give you our opinion of your situation.
Again, this is your first time listening to The Best of Johnson County podcast, if you would like or subscribe or follow this podcast as well, as give us a five star review down below. It will help with our visibility so other people will know about The Best of Johnson County podcast.
Until next time. I’m your host, Jonathan Breeden.
That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.
If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. [00:23:00] com.
