Alimony is often a stressful subject for anyone in a combined financial relationship. How much will I get? How much will I have to pay? How long does alimony last?
In this episode, your host and guide, Attorney Leigh Sellers, discusses the legal implications of alimony and makes sure you’re prepared for this next step in your life.
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Key insights from the episode:
If you believe you are a candidate for receiving or paying alimony, call 704-936-0062 to speak with an experienced Touchstone Family Law attorney today.
The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team (NC & SC) at http://www.TouchstoneFamilyLaw.com[spp-transcript]
Hello there. Going through a divorce? Considering one? Sorry to hear that, but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really, with its own rules, its own expectations and in many ways, its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt.
And now, here she is. Your host and guide, Leigh Sellers.
Hi everyone, and thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And, in this episode, I’ll be answering another question that many newcomers to Splitsville have, “How Much Will Alimony Be?” So let’s dive in.
Alimony is probably a subject that is stressful to anyone who is in a combined financial relationship. And both parties to this relationship are concerned about the legal implications about alimony. So the person who is worried about paying alimony is very concerned. And the person who is worried about receiving alimony is really concerned as well. So there’s really no one who’s comfortable with that subject. And it is mostly just the fear of “Am I going to be okay?”
So if you’re a payor, you’re worried that if you were ordered or obligated to pay a large amount of money, it’s going to make it impossible to meet the other obligations that you either have or other obligations that you’re hoping to undertake as you move forward. If you are someone who has been dependent on the money that the other person earns, you’re really scared about whether or not you’re going to have enough money to continue to support the obligations that you have or to pay the new obligations that you’re going to have because of the separation.
So I find that that is probably the most highly contested issue among clients that come in where there is the possibility of alimony. So the first thing that you have to understand is that, legally, alimony is defined by statutes in almost every state. And so every state does have a different list of criteria that their court system is going to consider in establishing alimony as well as modifying alimony. And so today we’re only going to talk about establishing alimony, not subsequent changes or modifications of an award that’s already been entered. So it is very specific state to state. So these are some of the general rules.
First of all, alimony is something that is paid to a dependent spouse by a supporting spouse. And those are terms that you’re definitely going to hear if you’re in South Carolina and North Carolina where I practice. So the first thing that you have to establish if you want alimony is that you are dependent on the other spouse, substantially, to meet your economic needs. And you might think that that seems fairly straight-forward, but it isn’t always because we do have marriages where both parties are dependent on parents or both parties are dependent on some third party to meet their needs.
So you could have a spouse who is the beneficiary of a trust. And it is a trust in which they have zero control. They don’t get to decide how much money they take out of the trust. And that can be fuzzy if they don’t actually get to decide whether they’re getting the money or if they’re getting the money. But it could be a substantial amount of the family’s livelihood has been not so much from the money that that spouse may have earned, but from money that they were given by a family member or some third party. So there are some situations where you don’t just have the economics of the two people in the marriage. There could be other factors that are involved in that family’s household.
But, largely, it is you have one person that earns considerably more than another person. I think the most traditional scenario that people thing about is where you have a stay-at-home parent and another parent that is outside in the workforce earning the income. So that’s the traditional version of dependent spouse and supporting spouse. But sometimes you can simply have a wide disparity of income. So you can have, perhaps, a vascular surgeon married to a school teacher. So both are working outside the home and both are valuable contributors to society and the economy, but in very different measures. They’re compensated quite differently. So the question then becomes, “How is alimony established?” Well, if the court has found that there is a dependency and that one spouse is dependent on the other for their equitable needs to be met, then what the court is doing is trying to establish alimony that is fair between the parties. And in order to determine what is fair, as I said, every state has a list of criteria. But they really are going to be generally similar.
One thing, for certain, is looking at what is the disparity, how much difference of income do we have, how much dependency has been created. And so they’re absolutely going to look at how much each person earns. They’re going to look at the length of the marriage. They’re going to look at how big the disparity is and how long its lasted. So, is this a situation where somebody else in the household was the supporting spouse for 10 years, but at present that person is unemployed, or that person is going back and retooling their education, or perhaps they’ve left a large company and they’re doing a startup? And so right now on paper it looks like the person who for the previous 10 years was the dependent spouse is now the supporting spouse. So they’re really going to look at the history of the earnings between the parties as well. And, of course, the longer you’ve been married, the more the history and an economic picture you have.
They’re also going to look at the health of both of the parties, emotionally and physically. Sometimes a dependency is created because one party to the marriage is ill and can’t work. So they’re going to look at what those circumstances are as well. They’re going to look at what is the earning potential in future years for the spouses. For example, when I was talking about maybe one of them is ill, they’re going to look and say, “This person is dependent because of circumstances beyond their control, and there’s nothing that’s likely going to change the future needs of this person.”
Whereas sometimes somebody who’s operating in a stay-at-home parent capacity or homemaker capacity has stepped out of a viable career to meet those needs of the family for a short period of time. There are quite a number of people who will choose to step out of the workforce and concentrate on raising their children while they’re not school-age. And the plan is that when the children are in school, the person will resume their career. So they’re always looking at what is the future economic reality of both spouses as well.
And there are, of course, income situations where you might have a real disparity of age. So you could have a supporting spouse who’s been supporting but they’re 68 or 70 and they’re winding down and therefore, they’re not going to be an income producer for much longer. And so even though you have a situation where somebody had been the income producer and the supporter, at this point, they’re getting ready to step out of that roll and plan to live on the assets that they’ve accumulated and the retirement plan that the two people have had. And so all of these things are important. They’re going to really look at what your needs are.
So this is an economic discussion. This is a balancing of needs and wants and feasibility. So this is not a punitive discussion. A lot of times people will come in and they will be talking about alimony as something that they’re entitled to or something that they deserve because of how the other spouse has treated them. Interestingly enough, the court can consider marital misconduct, at least in South Carolina and North Carolina, very clearly in determining how to establish alimony and how long and how much it would be. So they certainly can consider anything that either state defines as marital misconduct, but it is not the only thing that they consider. And it can’t be the only thing driving the decision. It ultimately has to come down to money. So it is always going to be a balancing act of how much money do we have, and how do we split it between these two people moving forward. And if there is enough money to split between the people going forward, well, then they may look at the marital fault a little more carefully.
One judge defined it one time as if there’s enough money to go around, maybe we put a little carpet down or a higher grade wallpaper or something that’s more decorative. And what they’re meaning is is that if there’s plenty of money, I might look at marital fault and say, “Well, I’m going to give this person a little extra punch because there’s a fairness component of this that I don’t believe they deserve to be treated this way. And therefore, I’m going to make life a little easier for them. And I’m not going to worry about it being a little more difficult for the other person because they really caused this situation.” But a lot of the judges have said that there’s often not enough money anyway, and they’re having a difficult enough time helping both parties be able to meet their obligations going forward. And they really don’t have room or the luxury to say, “Wow. This is really a terrible situation that you’ve put this other person in. And we are going to make you pay for it, literally.” Fault also is interesting in most states.
And this is something that I’d be very careful about. There are some states who will actually bar a supporting spouse from receiving alimony if they have behaved in this marital fault fashion. Adultery or having a sexual relationship outside of marriage is the most common bar. So in North Carolina, for certain … you could be 100% dependent on your spouse for 35 years, and if you have sex with someone else besides your spouse during the marriage, before the marriage is over, before the parties have separated and started living separate lives, it doesn’t matter what your economics are. You’re going to be barred from alimony. And that is something, unfortunately, a lot of people don’t know. So, you really do need to understand what any barred alimony might be in your particular jurisdiction. South Carolina has the same rule that alimony is barred if the supported spouse has committed adultery.
So those are things that I think people really need to understand when they’re getting ready to start this discussion. And everyone can debate whether or not it’s fair that that one thing is treated so differently. For example, if you are an abusive spouse and you’ve really been physically abusing your partner, there’s nothing that requires that then you pay alimony. So it is a very particular, perhaps archaic, element of the law. And some states do have other marital fault that can be a bar. But the adultery one is pretty clear. So if you know that you have had an affair and you are very dependent on your spouse, then you need to be prepared for the realities of your situation and how you’re going to be self-supported going forward if they choose to institute that bar. And it’s pretty unusual for a spouse not to try to avoid an obligation of alimony if they find out that the person they’ve been supporting all of these years has committed adultery. And the one exception tends to be when they have also committed adultery. So if both of you are out having sexual relationships outside of your marriage, then they’re going to cancel each other out. But it is something you really need to think about.
One thing that the courts will also look at that I’ll mention specifically now is the tax implications of alimony. So both North Carolina and South Carolina, specifically in their statutes, say that the court should consider the tax implications of an alimony award or an alimony payment. And if you’ve been watching the news with the new current tax code that went into effect in 2018, there is a provision which completely changes the tax impact of alimony going forward. So people who do not have an alimony award established before the end of 2018 will have very different tax consequences in 2019. So that’s an area where I think we’re going to see some alimony reform in many of the states because they’re basically taking away those implications. And so there really won’t be any future tax implications to be considered. And so I’m guessing that these statutes are going to have to be amended in most states. And they may take that opportunity to make other changes as well.
So what do you do if you need to be preparing to get an answer for how much is alimony going to be? Well, there’s no guidelines like for child support. So there’s no formula on calculating alimony because there’s all of these factors to consider, and it’s going to be different and unique for every household depending on how they’ve spent and how they’ve earned, and the financial lifestyle that they’ve created. So it’s a very individual analysis. So with no guidelines, the most important thing that you can do is really sit down and look at what your spending has been. So if you’re going to be working on alimony with an attorney, what you need to be able to give that attorney is the historic expenses and income of your family. So you need to gather your tax returns. And if you have not filed them recently, then definitely get with an accountant and catch up and be sure that you’ve got properly prepared tax returns. And I would have at least five years if the marriage is that long.
You need to go through your bank accounts and you need to go through your credit cards. And you need to start tagging and understanding where you’ve spent your money. You need to look at every resource that you have that’s been tracking your spending: so your debit cards, your checks, your credit card statements. Some credit card statements do a wonderful job of categorizing your spending at the end of the year. And they’ll send you these wonderful charts that say, “You spent this much on food, and this much on entertainment, and this much on travel.” And that can be a helpful place to start. And you’re going to want to break down those expenses per household member. So alimony is to take care of a spouse, not the children.
So when you’re looking at your economic picture, you’ve got to carve out expenses for the children. And you’ve got to carve out expenses for the spouse that is the supporting spouse and the dependent spouse. So you’re basically trying to figure out what does each individual in the household spend in these areas. And you are not going to get an answer, even an estimate, of whether you’re entitled to alimony, what amount you’re going to get from alimony if you can’t produce those records. And you have to give that person the chance to review them. So you’re not going to get an answer in a consultation or in the early part of your work with an attorney about how much money you may pay or how much money you may receive from alimony because it does take time.
I know that often I will use a financial planner or a CPA or an accountant to help my client cull through all of that information and really craft a budget. Everyone handles money in their household very differently. And I’ll have some people come in who are already using QuickBooks for their family, or Mint, or some other application that’s a household budget, and they stay very on top of their family finances. And they know exactly what they’re spending every day and who’s spending what. And they can cough up this information in a matter of weeks.
And then there are people who are literally just living their lives and not really thinking about how they’re spending their money. It’s just spent. And they really have to go back, and they’re often shocked how much money they’re spending. And this really does not matter whether this is … This is not, “Oh, these people must have a lot of money to not know how they’re spending it.” No. There’s a lot of people who come in and I don’t think anybody else objectively would categorize them as being wealthy, but they also aren’t really watching how they’re spending their money. And maybe that’s why they’re not wealthy because they’re not mindfully spending their money. But it happens a lot. People are busy and they inherit their spending patterns sometimes from their parents. And they just handle things differently.
And one of the biggest problems I see in these situations is people who really are spending more money than they have. And so their deficit spending. And their entire marriage has been deficit spending. And they come in and they’ve got really significant debt. They have equity lines. They have credit cards. And they have been spending at a level, but they’ve been funding it with debt, not on their income. And so when they separate, we’re looking at the fact that they never had enough money to spend the way they were. So there isn’t a way we’re going to be able to reasonably award alimony because the court’s not compelled to require people to keep going into debt and deficit spending. So that’s one thing to be careful about. If you don’t really have enough money to meet your needs now when you’re in one household together and combining your resources, don’t expect that we’re going to be able to do something about that when you’ve got two households. It’s just not going to work. It’s not working now.
And it’s very sad when we have to actually work somebody through that thought process, that they hadn’t really paid attention to the fact that they didn’t have enough money now. They’re not going to have enough money going forward without significant changes in how they spend or how they earn. So it may be that people need to look at earning more money or actually cutting expenses that they’ve become accustom to. I did have one client one time who after going back through credit card bills had, for the first time, realized how much money the teenagers were spending on X-Box. And it was kind of funny because he made a comment to me that his children may lose their thumbs when he got home.
But it was all because he hadn’t been tracking it monthly on that credit card. He had gotten accustom to what that credit card bill was. He was paying it off every month. And he hadn’t actually been looking to see where the money was being spent. And when he really was working with me and looked through, it was ridiculously high amounts of money that the children were spending on online gaming because that credit card had become associated at some time in the past with this gaming system. And those gaming systems have gotten more and more expensive and more and more interactive as time has gone on. So over the course of the years, he had been funding a great deal of extracurricular activities of his children, unbeknownst to him. So that’s just a small example that’s not as critical as how much somebody’s spending on for or gas.
But I always say when you’re looking through your budget, you want to start with the necessities of life and be able to clearly articulate what your needs are and how you’ve been spending on needs. And then you go down into the discretionary spending as to how much you’re spending on entertainment, or eating out, or vacations, those things that you could adjust a little bit, and also what you’re doing on debt obligations because you can’t often restructure your debt obligations. So if you have a student loan, more than likely, you’re going to continue to have that same student loan obligation. If you have a mortgage, unless you sell the house, you’re going to have the mortgage. So it’s really a good time to go through needs and wants. And go ahead and identify for yourself where you could make an adjustment if you have to.
So there also is going to be some new expenses when you separate that you’re going to have to consider. So you’re going to need to look if you’ve been on a family health insurance plan and you’re no longer going to be a dependent of the person who provides the health insurance. Then we’re looking at a second health insurance plan. So you’re going to have to go out and think about what the cost of resources are that you’ve shared: health insurance, car insurance, home insurance, life insurance, because sometimes people have joint combined plans. And so you’re also going to have to go out and apply for and find out what those costs are when they’re not bundled.
So there’s a lot of work to be done in establishing how much alimony you might pay and how much alimony you might receive, and how long you might be paying or how long you might be receiving it. And also, how long you’re going to be receiving is going to be really important to people because if you become reliant on this money, what are you going to do when it disappears? So it is a very emotional discussion. It is a very complicated discussion in some respects. And it is one that is going to require thought, and planning, and research, and flexibility on your part.
So if you believe you are a candidate for receiving or paying alimony, this is another one of those places where you’re going to need to work closely with a qualified attorney who is experienced in these alimony situations and can give you realistic guidance going forward because it’s one of the most important things for you to consider when you’re separating and divorcing is what is the financial structure of your life going to be after you’ve separated from your spouse. So it’s going to be a new future. It’s going to be a complete new game plan for you. And you need to prepare properly.
So, there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune into the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice, if you know where to look. See you next time.
The insights and presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney/client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.[/spp-transcript]