Podcast

October 22, 2019 Podcast

Season 2 Episode 5: Alimony and Cohabitation

Season 2 Episode 5: Alimony and Cohabitation

 
 
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Alimony and cohabitation can be some of the more frustrating issues for family law clients. There are many misconceptions about who is entitled to alimony, how it is calculated, and what constitutes cohabitation. In this episode, host Jaime Davis and her colleague Melissa Essick discuss when a spouse might be entitled to receive alimony, whether there is a formula for calculating the amount and duration, and how cohabitation might impact a person’s right to continue receiving spousal support.

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Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 5 of Season 2 of ‘A Year and a Day’. I’m your host, Jaime Davis. You may have noticed it’s been a few months since I’ve released a new episode of the podcast. The past couple of months I’ve been dedicating a lot of my time and energy to authoring my first book, which hopefully will be published by the end of the year. The book features topics that have been discussed on the podcast and provides information and tips for getting through a separation and divorce without destroying family relationships or the family finances.

‘A Year and a Day: Divorce Without Destruction’. The book is designed to be a go to resource for people going through or considering separation and divorce in North Carolina. I’m very excited to share this news with you and look forward to sharing the book with you as another resource for folks dealing with these issues in North Carolina. All right. So enough about the book. Let’s get to today’s topic and this episode.

I will be discussing alimony and cohabitation with my colleague Melissa Essick. Melissa is a board certified family law specialist and has practiced almost exclusively in the area of family law since 2004. Melissa is also professionally trained as a mediator in all family law matters and has been certified as a family financial mediator by the North Carolina Dispute Resolution Commission. Welcome, Melissa.

Melissa Essick: Thank you for having me.

Jaime Davis: Melissa, I have found that alimony can be one of the more frustrating issues for clients and that there are many misconceptions about who is entitled to alimony and how it’s calculated. I thought we could try to clear up some of those misconceptions in today’s episode. So, Melissa, how does North Carolina define alimony?

Melissa Essick: North Carolina General Statute 50-16.1A defines alimony as an order for payment for the support and maintenance of a spouse or former spouse. So we get the question a lot, “who is responsible for paying alimony?”, and alimony is paid by the supporting spouse to the dependent spouse. There are two ways that you could be classified as a dependent spouse. The first is if you substantially rely on your spouse for support and maintenance, meaning you don’t have enough money to pay your bills or to meet your reasonable need. The other way is if you substantially rely on the other spouse in order to maintain your custom standard of living.

And so the court’s going to look at the incomes of both parties at the time of the separation in order to determine who is the supporting and the dependent spouse. So determining who is the dependent spouse and who’s the supporting spouse is usually a pretty easy determination. We really see more issues when we’re talking about how alimony is calculated.

Jaime Davis: That’s very true. A lot of folks are frustrated to find out that there is no formula for calculating alimony. If the parties are able to resolve their issues outside of court, they can determine the details of the alimony payments and a separation agreement. And that is just a contract between the parties signed by both people. It’s notarized and it can contain the amount of alimony that one spouse will pay the other as well as for how long. If the case goes to court, however, a judge will determine whether one spouse is a supporting spouse, whether the other is dependent, how much money the dependent spouse will receive each month, and for what length of time. And since there is no formula, the way lawyers try to calculate the alimony is by determining what the dependent spouse’s budget is. And from that budget, subtracting any income that the dependent spouse makes as well as a child support that they receive.

Melissa Essick: How do you typically determine your client’s budget or what their need is?

Jaime Davis: That’s a really good question. So in Wake County, we have a form called a financial affidavit. And on that affidavit, it lists all the different categories of expenses that you can think of from your mortgage or rent to your groceries, to your insurance, to clothing, you name it, and the expense is listed. And so we will often ask our clients to complete these financial affidavits to give us an idea of what their monthly budget is. And often these affidavits are based upon, I would say, probably a 12 month average of living expenses.

Melissa Essick: And do they just look back on the last 12 months, look back at bank statements and credit card statements just to see approximately what they’re spending each month for that past year?

Jaime Davis: In a lot of cases, yes. That’s exactly what happens. Or if they have the actual bills, let’s say they can take an average of their cable bills, power bills, mortgage statements and those sorts of things.

Melissa Essick: So their fixed expenses are normally based on the bills for the last twelve months, And then they may have to look towards other statements to look at their other spending?

Jaime Davis: That’s right. And depending upon how folks pay their bills, you know, this can become a little bit cumbersome. If they use a lot of different checking accounts or a lot of different credit cards, you know, it can be difficult to put the budget together, but it can be done with the help of a spreadsheet.

Melissa Essick: We love a spreadsheet.

Jaime Davis: Yes, we do. So once we have determined the budget and from the budget, we have subtracted any income that our dependent spouse makes as well as any child support that they receive. What’s left is what the dependent spouse needs in alimony from the supporting spouse. But our analysis does not stop there. Once we figure out what our dependent spouse needs, we have to look at our supporting spouse’s ability to pay that amount to the dependent spouse. And so once we take that into consideration, if the supporting spouse has enough money after he or she pays their bills to pay support to the dependent spouse, great. If they don’t there’s probably going to have to be some amount of compromise.

Melissa Essick: Right. Have you ever seen a situation where income is imputed or they assume that the supporting spouse is making more money than they’re actually earning?

Jaime Davis: Oh, absolutely. There have been cases where, you know, a supporting spouse may just decide after separation that, you know, I’m going to quit my job. I just don’t like it anymore. And, you know, judges are very aware of that. And so our law provides if the supporting spouse is deliberately depressing his or her income, that income can be imputed to them for the purpose of calculating support. And what that means is that even if our supporting spouse is maybe only making, let’s say, $50,000 a year after separation, when they were earning $250,000 at the time of separation, the court can say, “you may only be earning 50 now, but for purposes of this calculation, we’re going to say that you’re making 250 because you are depressing your income on purpose.”.

Melissa Essick: Right. So the court ensures that if they have a financial obligation and they’re neglecting that financial obligation to either their children or their spouse, the court can assume that they have the ability and should be earning that higher amount?

Jaime Davis: That’s right. So if you’re a supporting spouse, it really doesn’t get you anywhere to all of a sudden quit your job, take a lower paying job. At the end of the day, it is likely going to be held against you if you do that. And so, you know, the numbers are what they are.

Melissa Essick: Right. And that’s actually seen, we won’t we don’t have to get into this now, but I’ve actually seen also where the judges, obviously, they’re not sympathetic to that. And they also may award more attorneys fees in a situation where it’s intentional.

Jaime Davis: That’s a really good point. And we haven’t mentioned that yet. So if you have a claim for alimony in certain circumstances, you may also have a claim for attorney fees related to that alimony claim. But that is a whole nother topic for a whole nother broadcast. So, Melissa, we’ve talked about how the monthly amount is determined. How do we determine the duration of the alimony for how many years is our dependent spouse going to receive alimony?

Melissa Essick: Well, in North Carolina, just like there’s no formula for calculating the amount of alimony, there’s also no formula for calculating the duration of alimony. Lawyers typically use a rule of thumb, and that rule of thumb is about half the length of the marriage. You really have to look at how long the parties have been married because when we get into more of a long term, 25, 30 year term, you may be looking at lifetime or you may be looking at a situation where there is no alimony. And we can talk about that in just a minute. But typically, somewhere around half the length of the marriage is where we usually start our negotiations and usually what we see courts doing.

Jaime Davis: And so what you mean by that is if the parties were married for 10 years, the dependent spouse will likely receive somewhere in the ballpark of 5 years, give or take, alimony. Is that right?

Melissa Essick: Correct. And sometimes, you know, by the time that the parties get into court, if this is a situation where they are in court, the supporting spouse has already been paying for a year or more in some cases. And so I have seen where the courts will certainly give credit for that period of time that they have been paying during the separation period before the actual alimony trial.

Jaime Davis: Melissa, a trend that I have noticed over the last several years is a rise in folks who are divorcing later in life. They’re certainly well into their 50s, some into their 60s. I’ve even had some clients who were in their 70s when they decided to divorce. How do you think that can impact the duration of an alimony award?

Melissa Essick: In several ways. The court was going to look at if the dependent spouse has the ability to get back into the workforce. You know, some of these folks have never worked a day in their life, and so they have absolutely zero experience. Some of them at that age are having health issues that prevents them from having the ability to actually physically work. So they’re going to look at the dependent spouse ability to get back to work and earn an income. They’ll also look at Social Security because after you’ve been married for 10 years, you have the option to draw on your spouse’s security and to receive Social Security based on your spouse’s earnings. And they are going to look depending on if they are the age of Social Security age, they’ll look and certainly consider that as supplementing some of their need. And they’re also going to look at the age and the ability of the supporting spouse. They’re not going to require a supporting spouse to work until he or she is 90 years old. And so, you know, there are just a lot of factors that they can consider.

Jaime Davis: I also think it’s really important to note that, you know, for these older folks going through a divorce, they are nearing the age or maybe they’re already at the age where they are starting to actually draw on their retirement versus contributing to it. And so, you know, maybe a situation where there’s not an alimony obligation, per se, if the retirement accounts are being divided between the parties.

Melissa Essick: That’s right. And the dependent spouse is receiving retirement or drawing on the retirement and also most likely receiving Social Security as well. So it may not require – it may not mean that they aren’t sufficiently dependent on the other spouse for support.

Jaime Davis: So in North Carolina, what factors influence how much alimony a person receives?

Melissa Essick: There are actually 16 factors that this statute provides. We won’t go through all of those factors during this podcast. There’s not enough time. We could actually probably touch on each of them in a separate podcast. But a few that I think are important to mention is marital misconduct especially. And marital misconduct, our statutes state that if the dependent spouse commits adultery, it bars that spouse from being able to receive support from the supporting spouse.

Additionally, our statutes state that if the supporting spouse commits adultery, the supporting spouse shall pay alimony. And so in one instance, if it’s the dependent spouse that commits adultery, they will be barred from receiving alimony. If it’s the supporting spouse that commits adultery, they will be required to pay alimony. Now, the amount and the duration is still up to the court to determine or if you’re negotiating it, certainly, you know, up for negotiations. But it does state that there’s going to be some amount that’s going to be paid if the supporting spouse commits adultery.

Jaime Davis: Right. I think alimony is a little bit punitive in that regard. Would you agree?

Melissa Essick: Absolutely. Yes. And there are some other forms of marital misconduct that can be relevant to the analysis, although they won’t bar the claim altogether. There are things such as indignities. This is name calling, public humiliation, that sort of thing. Excessive use of alcohol and drugs, reckless spending, cruel and barbarous treatment, which is, you know, domestic violence or any type of physical abuse and abandonment. And I find abandonment to be very interesting. I know in a lot of cases it is not the make or break factor, but I think it’s important for people to have an understanding about what abandonment is, because in most cases there is a question about, you know, can I just leave my house or should I stay put?

Melissa Essick: Yeah. And it seems that a lot of people that come to our office, they’ve heard that term before, but they don’t understand how it could apply or if it applies to their case.

Jaime Davis: Right.

Melissa Essick: So the main thing to understand about abandonment is its definition and by definition you have not abandoned your spouse or abandoned the marriage if you have just cause or if your spouse consents. Just caise would be if you are being physically abused or if there is excessive alcohol or drugs, substance abuse, or if you are, you know, being harassed or tormented. The court is not going to expect you to stay in a relationship and in a marriage like that. So that would be considered just cause. And certainly your safety and especially the safety and well-being of your children are paramount. The other is if you have the consent of the other spouse. So if the other spouse is saying, “leave, go”, that’s not abandonment either. And so that’s really important to understand the definition of whether or not you actually will you actually be abandoning the family by leaving.

Jaime Davis: Right. And normally, abandonment is not that big of a deal in family law cases. But how abandonment will affect your case is fact specific. And so you should consult with a lawyer before you make the decision to leave. In certain extreme cases, the court may find that one spouse abandoned the other in such an egregious manner that the first spouse should not be entitled to spousal support. And there are a couple of cases that I think the facts are pretty interesting. And so I going to talk about those briefly with you. There’s this one case called Sorey v. Sorey (https://casetext.com/case/sorey-v-sorey-1), and in that case, the court found abandonment and denied post-separation support to the dependent spouse. And in that case, the wife told the husband she wanted to move to a new house and the husband told her that he didn’t want to move. And so one day when he was at work, the wife moved anyway. And when she moved out, she put the husband’s clothes on the front porch, in the front yard, not of their house, but their son’s house. And when the husband learned that the wife moved, he was actually at work out of state and his friend called him to tell him that. And so the wife then tells the husband that she decided to move, she found someone else and she did not want him anymore. And so in that case, the court found her actions to be so extreme that abandonment ended up causing her not to get support.

So again, before you make the decision about whether or not to leave your house, we would just encourage you to speak with a lawyer. So Melissa, you mentioned a little while ago that there are 16 factors that can be relevant to the alimony determination. We’ve talked about marital misconduct. What are a few other of the factors?

Melissa Essick: Well, certainly, as we discussed earlier, the court is going to look at the incomes of both parties to determine whether or not there is a dependent and a supporting spouse. They’re also going to look at the age, the physical health, mental health of each spouse. If you’ve got a spouse, that is 30 years old, and he or she is a dependent spouse, there’s gonna be a reasonable expectation that even if they’re not employable in that moment, that they may be employable a couple years down the road and the court sometimes looks at it as rehabilitative. And so what they will do is maybe give a short term duration of alimony to allow that dependents spouse to get back on their feet or get educated or get certified in whatever their specialty is and then either reduce alimony after that point or terminate alimony altogether. And so for that reason, the age is really important in their physical abilities and whether or not they’re capable of becoming employed.

Also, as we discussed the duration of the marriage, that’s going to have an impact on the duration of alimony typically, and the education of each spouse, the training. And then also, you know, one that comes up often is the contribution of a spouse as a homemaker. I see it on both sides where a spouse will come to us and say, you know, “I don’t think she’s entitled to a certain amount of alimony. She never earned a dime or he never earned a dime. I was the only one that was employed and I was the only one that earn an income. I’m the only one that created this marital estate. And she or he is not entitled to anything.”. Well, the courts don’t view it that way. The courts are going to look at the contributions of the spouse as a homemaker, you know, taking care of the children, taking care of the household responsibilities, and certainly give that spouse credit for that as well.

Jaime Davis: Can alimony be modified?

Melissa Essick: It depends. if alimony is in a separation property settlement agreement it generally cannot be modified unless the agreement specifically states that it can be. And so if it’s silent as to whether or not it’s modifiable and it’s in a contract the answer is no. And on the flip side, though, if alimony is in a court order or a consent order that’s filed with the court it can be modified. But the person wishing to modify alimony is going to have to be able to show that there’s a substantial change in circumstances since the entry of the original court order. And that substantial change could be numerous things. It could be a change in the ability to earn the income of the supporting spouse. It could be a change in the need of the dependent spouse. And so it’s really going to be on a case by case basis. But before the court were ever to determine what the new modified amount will be, they’re going to first look at whether or not there was a change, a substantial change.

Jaime Davis: Right. If the dependent spouse develops a health condition, you know, that could be a substantial change. Maybe they now have more medical expenses. Maybe their health condition is affecting their own ability to earn whatever amount of income they were earning. And certainly in that case, that might be grounds for a modification.

Melissa Essick: Right. And also, I’ve seen where a dependent spouse may become employed and now has the ability or is now earning substantially more than they were earning at the time, and their needs remain the same. They don’t need as much to supplement their income in order to meet their needs. And so in that situation, I’ve seen courts modify alimony.

Jaime Davis: Some people don’t like the idea that alimony is modifiable. But the beauty of the modifyability of alimony in a court order is that then both parties are bearing the risk that it’s going to be changed, right? And each of them can benefit if they have a change of circumstances in their life that affects their ability to earn income or affects their expenses. You know, the upside to a contract is that you have bargained for your amount and there is no risk that the amount will increase or that your term of alimony will increase. But that could be a good thing or a bad thing. You could be the supporting spouse with non modifiable alimony and lose your job. Likewise, you could be the dependent spouse with non modifiable alimony and develop a health condition. And so I think it really just depends on the circumstances. And again, this is another area where if you have questions, you really should consult with an attorney.

Melissa Essick: Yes. And almost every single alimony case that I have, I have this analysis with either the dependent or the supporting spouse, because it’s important for both of them to understand what their risks are and do what’s best for them, especially if you’ve got, for example, a supporting spouse that maybe the job security is not very great and they’re very concerned about losing their job and having the ability to continue to pay that amount of alimony that they have agreed to. In that situation, even if we end up putting the term into a contract instead of a court order, there are ways to add modification language for instances where the supporting spouse loses their job involuntarily or becomes disabled. And so you really should explore this more with your attorney and really talk through what’s going to work best for you in your situation.

Jaime Davis: So we’ve talked about the possibility that alimony can be modified. When does it end?

Melissa Essick: Alimony terminates at the death of either the supporting spouse or the dependent spouse. It will also terminate at the end of the duration, the duration that’s either set by the court or that’s in the separation agreement. It also terminates if either, excuse me, if the dependent spouse remarries or cohabitants.

The first prong of the analysis that asks whether or not they are continuously and habitually living together, really the court is going to look at how many overnights are they spending together. And in North Carolina, our case law says there’s no magic number of overnights that automatically equals continuous and habitually living together. It’s going to be really on a case by case basis. But I know one of the cases that I’ve recently read where the parties were spending three to four overnights regularly a week. That was one instance where the court did consider that to be cohabitation when they looked at the other factors and whether or not they were putting themself out as husband and wife. And so that leads us to the second prong.

Jaime Davis: And the second prong of the test looks to see if the parties act like a married couple. There are lots of factors that the court is going to consider in evaluating whether or not someone is cohabiting as defined by our statute. The court will look at a totality of the circumstances test no one item is required, nor is one factor going to be determinative. It’s going to be if all of these factors paint a picture of cohabitation. I think it’s really important for folks to understand that a regular adult dating relationship can sometimes look like cohabitation if the folks who are dating spend nights at each other’s houses. And so it’s really important to understand what all it takes to be cohabiting, because if you are a dependent spouse receiving support, you certainly don’t want your ex to think that you are cohabiting and ask the court to terminate your alimony. And so Melissa, what are some of these factors that the court is going to consider?

Melissa Essick: 1, do you have a long term, monogamous relationship with that person? Do you do things that a married couple would do? And those are things like do you do chores around the house? Do you have a key to the house? Do you drive the other person’s car? Maybe you have some public display of affection by holding hands or kissing when you’re in public. Go on vacations. And one particular case, I know it was really kind of honed in on this because they went on vacations with the children as if they were established as a married couple. Do you attend social events together as a monogamous couple? Are you keeping personal items there? And so sometimes I’ve seen, you know, where you know, if you’re carrying a suitcase in and out, you’re not doing that on a regular basis, that’s something that you do maybe once a week, that’s going to be different than if you keep clothes at their house and you’re going in and out and you’re not having to carry a book bag. It’s going to seem to suggest that you were staying there more regularly and continuously. You know, other things like are you making improvements or repairs to the house? Do you, you know, maybe you mow the grass? Do you pick up the mail when you come in? Do you go grocery shopping and bring groceries to the house? Do you attend church together, prepare meals together? All of these things and there are numerous others. But all of these things are gonna be considered when the court looks at the totality of the circumstances. So it’s definitely a case by case basis.

Jaime Davis: And I think in most of these cases, too, there is some sort of sharing of finances, right? Like there’s some sort of, you know, paying part of the bills of the other person. And maybe it’s not the mortgage. Maybe it’s not the power bill. But maybe it’s, you know, you’re buying groceries for the house, or you’re paying for the housekeeper, or when you guys go out to dinner, you know, one of you is paying for the other. I think all of those sorts of things go into the analysis.

Melissa Essick: Yes, absolutely. I agree with that. So, Jaime, what do you tell clients to do if they suspect that their ex may be living with someone else?

Jaime Davis: Well, if you think that your ex is cohabiting and you are currently paying them alimony and you would like that alimony obligation to end, the first thing you should do is try to gather all of your information and evidence before you give your ex the heads up that you think they’re cohabiting. One way that you can get some evidence of whether or not your ex is living with someone is to hire a P.I. A P.I. report can be a great tool to prove that, you know, the ex is living with a new boyfriend or girlfriend.

Melissa Essick: The P.I. would be able to see the person coming and going, maybe with a different change of clothes. They’d be able to see them doing household chores like mowing the lawn or getting the mail, bringing groceries in and out, those kind of things that would be easy for a P.I. to document and put in a report.

Jaime Davis: Absolutely. And something else that you can do if you don’t want to hire a P.I. right away. Maybe you have an inkling that they’re cohabiting, but you’re not really sure and you want to save the money to the extent you can, check social media, see what they’re putting out there. Have they changed their Facebook status to engaged? You know, that might give you an idea that there is some co-habiting going on. You can also look at bank records and phone records, but that is most likely going to require you to file some sort of motion with the court, a motion to terminate the alimony based upon cohabitation so that you can get your lawyer to conduct some formal discovery.

Melissa Essick: Yes. Just to kind of go back to the social media, I’ve seen in one of my cases where they remain friends of friends of their exes. And so they are able to see where they’re checking in – their location status. They are also able to see if they’re vacationing with the children or vacationing amongst themselves or maybe going to concerts and social activities together with other friends of theirs. And so even if you’re not following that, your ex on social media, there still might be a way to gain some information.

Jaime Davis: So I think the key here is if you are the person receiving alimony, you need to be really careful that you are not engaging in any sort of behavior that is going to lead your ex to think that you’re living with someone. On the other hand, if you are the person paying alimony and you think that your ex may be cohabiting you really need to do your homework and gather your evidence and your information, because, either way, this could have a big financial implication for the dependent spouse who may no longer receive the alimony or the supporting spouse who would no longer have to pay that alimony.

Melissa Essick: Absolutely. And depending on how long the duration remains it really could financially impact someone.

Jaime Davis: Melissa, thank you for joining me today.

Melissa Essick: You’re welcome. Thanks for having me.

Jaime Davis: If any of our listeners would like to contact you, what is the best way for them to reach you?

Melissa Essick: They can call me at 919-367-1512, or they can reach me at email at messick@divorceistough.com.

Jaime Davis: I hope you all enjoyed this episode of ‘A Year and a Day’. If you have any questions or comments, I would love to hear from you. You can email me at jdavis@divorceistough.com. If you like what you heard today, please leave us a review on Apple podcast. As a reminder, while in my role as a lawyer, my job is to give folks legal advice, the purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.

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gailor hunt attorney
'A Year and a Day: Divorce Without Destruction' is a law podcast produced by Gailor Hunt Davis Taylor & Gibbs, PLLC partner Jaime Davis. You can learn more about Jaime's experience and expertise on her bio page. If you have a question about the podcast, you can email Jaime at jdavis@divorceistough.com. Please note, the purpose of this podcast is not to give legal advice. This podcast is for general, informational purposes only and should not be used as legal advice. The information discussed in this podcast is specific to the laws in North Carolina. Before you take any legal action you should consult with a lawyer who is licensed in your state.
melissa essick podcast guest
The guest on this episode of our podcast is Melissa Essick, a family law attorney at Gailor Hunt Davis Taylor & Gibbs, PLLC, in Raleigh, North Carolina as well as a professionally trained mediator in all family law matters and a certified family financial mediator. You can learn more about Melissa's experience and expertise on her bio page. If you have a question about anything discussed in the podcast, you can call Melissa at 919-367-1512 or email her at messick@divorceistough.com.

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