Category: Alimony

Arbitration in Family Law Cases

7/27/2023

Arbitration is an alternative dispute resolution method that allows for parties to have their family law issues resolved without going to court.

North Carolina’s Family Law Arbitration Act (N.C.G.S. 50-41) allows couples to choose to arbitrate any or all issues arising from a separation or divorce, except for divorce itself. This can include any or all of the following issues: Equitable Distribution, Alimony, Child Support, or Child Custody. Arbitration is not a mandatory requirement and is something that the parties must mutually agree to before submitting an issue to an arbitrator. The parties agree to submit an issue or issues to a neutral third-party arbitrator, who acts almost like a private judge by hearing evidence and providing a binding or non-binding decision. The parties typically share the cost of the arbitrator unless their agreement allows the arbitrator to allocate the costs differently.

South Carolina has not adopted a family-law specific arbitration act like North Carolina, but parties may mutually agree to utilize arbitration as an alternative dispute resolution for property and alimony issues under the Uniform Arbitration Act, which South Carolina has adopted. South Carolina case law has held that it is not permissible to submit child custody and child support issues to binding arbitration with no right to judicial review. Child custody and child support issues may (or, when there is a lawsuit pending, must) be submitted to mediation as an alternative dispute resolution prior to trial. In South Carolina, arbitrators can be certified by South Carolina’s Board of Arbitrator and Mediator Certification, but parties can choose an arbitrator who is not certified by the Board. All arbitrators must follow the Alternative Dispute Resolutions Court Rules and the Code of Ethics for Arbitrators that South Carolina has adopted.

Arbitration Process
In arbitration, parties have a private trial in front of an arbitrator who issues a binding or non-binding decision that the parties must then follow. Similar to a trial in front of a judge, the parties present documentary evidence and testimony, and then the arbitrator (instead of a judge) issues a decision. An arbitrator can issue subpoenas for witnesses to appear and for production of documents or records needed. The arbitrator administers oaths for witnesses to testify and can take depositions, if needed. You can and should be represented by the attorney of your choosing during arbitration.

Benefits of Arbitration

Privacy. Arbitration is a private proceeding, unlike a court proceeding which becomes part of the public record. An arbitration “award” (what the arbitrator’s order is called) can be confirmed by a court if the parties agree to that. If you do not want the arbitration award to be confirmed by the court and become a public record, you can choose to enter into a private contract at the end of the arbitration process instead.
Arbitrator selection. You can hand-select your arbitrator, which allows you to choose someone experienced in your unique issues. This can be a great advantage because you don’t get to choose your judge in court. There is not one single certifying or accrediting body for arbitrators, but typically arbitrators are highly experienced family law attorneys (sometimes former judges) who are also trained in alternative dispute resolution. South Carolina has specific requirements for arbitrators who are certified by the South Carolina Board of Arbitrator and Mediator Certification to follow. Your lawyer will have suggestions for arbitrators who could be a good fit for your case.
Quick resolution. You can generally get in front of an arbitrator for a final, binding decision much more expeditiously than scheduling a hearing in front of a judge. Court calendars are notoriously full and sometimes backlogged.
Convenience. Arbitration is far more convenient, as you can set the time and date that works for you, your spouse, your attorneys, and any other witnesses who might need to be present.
Cost-effective. Arbitration is generally going to be a more cost-effective option than a court hearing or trial. Saving time by getting a final decision sooner means saving additional money, too.
Less formal. Arbitration is less formal than a trial in front of a judge and typically takes place in a more casual atmosphere, like the conference room of a lawyer’s office. The atmosphere can make the process less stressful than a court hearing and less adversarial.

Disadvantages of Arbitration

The decision can be binding. If the parties and counsel agree to binding arbitration, the arbitrator’s decision is binding and there is typically no right to appeal the arbitrator’s decision. If you are unhappy with the arbitrator’s decision, there’s sometimes little recourse to change it. In North Carolina, Child Custody and Child Support arbitration awards can be vacated if the court determines that the award for child support or child custody is not in the best interest of the child.
Enforcement. If your spouse does not adhere to the arbitration award, you will have to go to court to enforce the award. An arbitrator cannot hold a party in contempt for violating the arbitration award.
Cost. The most cost-effective way to resolve domestic issues with your spouse is to come to a negotiated settlement without too much back and forth between lawyers to finalize the settlement. When you involve third parties, like an arbitrator, to resolve your domestic issues it does increase the cost of resolving your marital issues but, as discussed above, arbitration is typically still more cost-effective than going to court.

If you are interested in arbitration or other alternative dispute resolution mechanisms, please reach out to our office. As a firm, we focus on out-of-court resolutions for our clients and arbitration is a great option for many clients. Lindsey is available and qualified to mediate or arbitrate your case in North Carolina or South Carolina.

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South Carolina Alimony 101

5/18/2023

Alimony is financial support provided to a “dependent” spouse (lower or non-income earner) from a “supporting spouse” (primary or sole income earner) after the date of separation or date of divorce. In South Carolina, alimony can be ordered by the court or can be agreed upon between spouses in a separation agreement. It is not guaranteed that you will be granted alimony (or forced to pay alimony) in every South Carolina divorce. You may have a claim to alimony or spousal support if you were a stay-at-home spouse or lower income earner than your spouse, your spouse has the ability to pay alimony to you, and you cannot maintain the same standard of living or cover your household bills on your sole income. There are several types of alimony in South Carolina, which can be tailored to your specific situation.

Types of Alimony

Permanent periodic alimony: Financial support paid in installment payments (usually monthly), can be permanent. Periodic alimony is the most common type of alimony that people think of when they think of alimony payments. This type of alimony can be terminated upon (a) remarriage of the supported spouse, (b) continuous cohabitation of the supported spouse, (c) death of either spouse, or (d) modification by a court.
Lump sum alimony: Fixed sum payment of financial support, paid in one installment or over time. This type of alimony cannot be modified or terminated in the future and will only be terminated upon the death of the supported spouse.
Rehabilitative alimony: A fixed sum to be paid in one installment or periodically, meant to “rehabilitate” a supported spouse in acquiring higher income earning power, training, or education to become financially independent. Rehabilitative alimony will only be awarded if it is likely a supported spouse could become self-supporting within a relatively short period of time. This type of alimony can be modified or terminated if (a) the supported spouse remarries, (b) the supported spouse continuously cohabitates with someone, (c) the death of either spouse, (d) the parties have an identified date to end the payments, or (e) there are unforeseen events that frustrate the good faith efforts of the supported spouse to become self-sufficient or the supporting spouse’s ability to pay.
Reimbursement alimony: A fixed sum paid in one installment or periodically to a spouse to recoup the funding that spouse provided to further the other spouse’s education or career. For example, if one spouse funded the college education of another spouse, the spouse who paid for the college education could be reimbursed for that contribution. Reimbursement alimony is often paid if the spouse who was funded in his or her education or business establishment has not yet realized the full potential of their earning power that should result from the education acquired or business established. This type of alimony can be terminated upon (a) remarriage of the supported spouse, (b) cohabitation of the supported spouse, or (c) if either spouse dies, but cannot be modified later based on a change in circumstances.
Separate maintenance and support: Financial support payments providing for the needs of the supported spouse while the parties are separated, but no divorce is pending or sought at the time. If you are separated from your spouse and awaiting the one-year no-fault divorce requirement, you can be granted separate maintenance and support to assist in meeting your financial needs before you are eligible to file for divorce in South Carolina.

Duration of Alimony
There is no mathematical formula in South Carolina to determine the duration of alimony. Alimony can be permanent, last a lifetime, a one-time payment, or paid for a relatively short period of time, depending upon your unique situation.

Amount of Alimony
There is no mathematical formula or formal guidelines in South Carolina to determine the amount of alimony. The amount is determined by considering the factors listed below and each person’s individual circumstances.

Manner of Payment of Alimony
South Carolina courts can require alimony payments to be made directly to the supported spouse or may require the payments be made through Family Court or through wage withholding.

Factors that Affect Alimony
While there are no guidelines for the amount or duration of alimony in South Carolina, the court must consider the following factors in determining the amount and duration of an alimony award.

The duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties.
The physical and emotional condition of each spouse.
The educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential.
The employment history and earning potential of each spouse.
The standard of living established during the marriage.
The current and reasonably anticipated earnings of both spouses.
The current and reasonably anticipated expenses and needs of both spouses.
The marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action.
Custody of the children, particularly where conditions or circumstances render it appropriate that the custodian is not required to seek employment outside the home, or where the employment must be of limited nature.
Marital misconduct or fault of either or both parties, whether or not used as a basis for divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties or contributed to the breakup of the marriage.
The tax consequences to each party as a result of the particular form of support awarded.
The existence and extent of any support obligation from a prior marriage or for any other reason of either party.
Such other factors the court considered relevant (S.C. Code Ann. § 20-3-130(C)(1)-(13)).

Cheating Affects Alimony
In South Carolina, adultery is defined as engaging in a sexual relationship with someone who is not your spouse before you sign a final settlement agreement or before the date of your divorce. If you commit adultery as a dependent spouse, you are barred from receiving alimony in South Carolina.

If you are separating in South Carolina and are not sure if you would be entitled to alimony, or required to pay alimony, please contact us to set up your consultation. Lindsey is licensed in South Carolina to assist clients with all of their family law needs, including alimony.

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North Carolina Alimony 101

5/11/2023

When people think of “alimony,” they usually think of an antiquated stereotype wherein a husband pays his wife and/or the stay-at-home mother of his children monthly alimony payments indefinitely after divorce. In the modern iteration, alimony can financially assist any gender spouse who was not the primary income-earner during marriage if that spouse is unable to meet his or her reasonable financial needs without the other spouse’s income or if that spouse is unable to maintain the same standard of living to which he or she became accustomed during the marriage. Alimony requires a needs-based assessment in North Carolina– you are only entitled to alimony if you need it (the dependent spouse), and your spouse has the ability to pay (the supporting spouse).

Alimony is not mandatory or automatic in North Carolina. Even if you are entitled to alimony, you might not want to take money from your spouse but would rather make your own way financially. If you are the primary income-earner, you might truly desire to pay alimony to help your lower income-earning spouse get on his or her feet financially post-divorce. You might need alimony payments to act as a bridge until you are able to get a job, earn an income again after being a stay-at-home parent, or for maintaining the same standard of living you were accustomed to during marriage. Alimony duration, amount, manner of payment, or whether it is paid at all, depends on each person’s individual situation.

Types of Spousal Support
There are two types of spousal support in North Carolina.

Postseparation support is financial support provided by the supporting spouse to the dependent spouse between the date of separation and the date of divorce.
Alimony is financial support provided by the supporting spouse to the dependent spouse after the date of separation by lump sum or on a continuing basis.

Duration of Alimony
In North Carolina, there is no formula to determine the duration of alimony. The Alimony statute states that the court “shall exercise its discretion in determining the amount, duration, and manner of payment of alimony,” (N.C.G.S. § 50-16.3A). For long-term marriages in North Carolina, we commonly see clients agreeing to (or judges ordering) monthly alimony payments for approximately half of the duration of the marriage in years. This is not a hard and fast rule or requirement, but is something that commonly occurs. For example, if you were married for twenty years, monthly alimony payments might be continuing for ten years after the date of divorce. For marriages that are not as long-term, the alimony duration would likely be shorter.

Amount of Alimony
In North Carolina, there is no formula to determine the amount of alimony either, as it is at the discretion of the court (if you are in front of a judge) or incumbent upon the spouses to agree to the amount based upon the reasonable needs of the dependent spouse and the supporting spouse’s ability to pay. When considering the alimony amount, it is important to analyze each spouse’s income and budget. The monthly alimony payment amount should never exceed the funds the primary income-earning spouse has left over after he or she pays their own reasonable and necessary bills at the end of each month.

Manner of Payment of Alimony
Alimony payments can be paid by lump sum payment, periodic payments (usually monthly installments), income withholding, by transfer of title or possession of personal property, or by security interest in or possession of real property (N.C.G.S. § 50-16.7).

Factors that Affect Alimony
The North Carolina alimony statute defines sixteen factors to be considered when determining the amount, duration, and manner of payment of alimony. The factors are listed as follows.

The marital misconduct of either of the spouses.
The relative earnings and earning capacities of the spouses.
The ages and the physical, mental, and emotional conditions of the spouses.
The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others.
The duration of the marriage.
The contribution by one spouse to the education, training, or increased earning power of the other spouse.
The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.
The standard of living of the spouses established during the marriage.
The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs.
The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support.
The property brought to the marriage by either spouse.
The contribution of a spouse as homemaker.
The relative needs of the spouses.
The federal, State, and local tax ramifications of the alimony award.
Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

Cheating (or Marital Misconduct) Affects Alimony
If you are the dependent spouse seeking alimony, but the supporting spouse has evidence you had an affair, you are barred from receiving alimony. On the other hand, if you are the supporting spouse, you committed adultery, and your spouse has evidence of the affair, you will likely be required to pay alimony.

Alimony is a complex and nuanced issue. If you need direction regarding whether you are entitled to alimony or you think you might be required to pay alimony, please reach out to our office to schedule a consultation.

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Part I, Stay-at-Home Parents and Divorce: What to Expect

3/9/2023

Today’s post is the first in a three-part series explaining what a stay-at-home parent can expect legally and financially upon separation and divorce. During a marriage, a couple may choose for one parent to stay at home with their children rather than pay the exorbitant cost of childcare or have their children cared for by a caretaker outside of the family. But when a marriage turns sour, unhappy, or unfulfilling, a stay-at-home parent may feel trapped in the marriage because they feel financially dependent on the working parent. If you are a stay-at-home parent feeling stuck in your unhappy marriage, do not fear! You don’t have to stay in an unhappy marriage and there are several paths to lead you towards a happier future. If you are a stay-at-home parent thinking of separating from your spouse, please reach out to our firm to schedule a consultation so we can help you understand to what you are financially entitled if you choose to separate.

Re-Entering the Workforce
Depending on your age, health condition, work experience, and education among other factors, when you and your spouse separate there may be an expectation that you will re-enter the workforce in some form or fashion, to supplement your own income and provide for yourself and your children. The income that your working spouse earned while you shared a household may be stretched very thin when there are two households to financially support upon separation. The best way to ensure financial security for you and your children is to find a way to supplement or increase your income. As a stay-at-home parent, you will likely have some options and entitlement to financial support from your spouse after separation, as outlined below, but you will likely not be able to solely rely on your supporting spouse financially for the rest of your life and will need to reenter the workforce at some point.

Alimony or Post-Separation Support
As a stay-at-home parent, for alimony purposes you are a “dependent” spouse while your spouse is a “supporting” spouse. Alimony is financial support that a supporting spouse pays to a dependent spouse during separation or following divorce. Alimony is not automatically awarded in North or South Carolina, and you must need alimony to maintain the standard of living to which you became accustomed during the course of your marriage in order for you to receive alimony. Additionally, the supporting spouse must have the ability to pay alimony to you.

There is no formula to determine alimony amount and duration in North Carolina and there are sixteen factors to weigh, including: the length of the marriage, the reasonable needs of the spouses, the incomes and earning capacities of the spouses, the reasonable expenses of the spouses, any marital misconduct by either spouse, the ages and health of the spouses, one spouse’s contributions to the education, training, or increased earning power of the other spouse, the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian of a minor child, the relative education of the spouses and the time necessary to acquire sufficient education or training to enable the dependent spouse to find employment to meet his or her reasonable economic needs, the contribution of a spouse as a “homemaker,” and several more.

There is no formula for the calculation of alimony amount or duration in South Carolina, either. There are four types of alimony in South Carolina: permanent periodic (typical monthly payments), rehabilitative, reimbursement, or lump sum. As a stay-at-home parent, you may be entitled to permanent periodic alimony, rehabilitative alimony, or lump sum alimony, depending upon your situation, what you and your spouse agree to outside of court, or what the court orders. If you were a stay-at-home parent to young children prior to separation, take note of rehabilitative alimony. This type of alimony is meant to “rehabilitate” a spouse in acquiring higher income earning power, training, or education in order for that spouse to become financially self-sufficient. Rehabilitative alimony might be paid to a stay-at-home parent for a limited time until young children enter school, or until that parent can complete additional education to reenter the workforce.

Alimony can be awarded within a separation agreement by you and your spouse agreeing that your spouse will pay you alimony, or it can be ordered by a court. At Dasher Law, we assist clients in obtaining their best outcomes outside of court and can assist you in obtaining alimony, or understanding if you are entitled to alimony, if you were a stay-at-home parent prior to separation. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Come back next week to learn about the division of marital assets and how that might occur as a stay-at-home parent.

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Frequently Asked Questions in a Divorce Consultation (Part III)

12/1/2022

My spouse cheated on me/I cheated on my spouse, how will that affect my case?
If you engage in a sexual relationship with someone who is not your spouse prior to your date of divorce, that is considered adultery in both North and South Carolina.

If you engage in a sexual relationship with someone who is not your spouse prior to separation (in North Carolina) or the signing of a final settlement agreement or date of divorce (in South Carolina), that act of adultery could result in significant legal and financial ramifications.

If you are the dependent spouse seeking alimony, but the supporting spouse has evidence you committed adultery, you will be barred from receiving alimony. On the other hand, if you are the supporting spouse, you committed adultery, and your spouse has evidence of the adultery, you will likely be required to pay alimony.

My spouse is moving in with his or her new partner (or I want to move in with mine); how does that affect my case?
To prove “cohabitation” in North Carolina, the supporting spouse must show that a dependent spouse is living with someone else in a romantic relationship that provides economic benefits similar to those that are provided in a marriage relationship.

“Cohabitation” in South Carolina is defined as when the supporting spouse can prove that the dependent spouse has resided with another person in a romantic relationship for more than 90 consecutive days.

If you are seeking to collect spousal support as a dependent spouse, but then move in with a new dating partner, you will likely not be eligible to receive spousal support. The reasoning behind this rule is that your former spouse should not have to provide financial support for you when you are living with another adult who can theoretically provide the same type of support. If you are currently receiving spousal support as a dependent spouse, but then begin cohabitating with your dating partner, spousal support will typically terminate.

If you are the supporting spouse and find out that your former spouse who receives spousal support/alimony has begun cohabitating, you can request that alimony be terminated.

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Frequently Asked Questions in a Divorce Consultation (Part II)

11/24/2022

Do we have to sell the house?
It depends. There is a presumption in both North Carolina and South Carolina that all of the marital assets and debts will be split equitably between spouses, which includes both the equity in the house and the mortgage debt. If one spouse wishes to keep the house, that spouse must figure out how to do two things: First, the spouse keeping the house must remove the other spouse’s name from the mortgage loan (typically either by refinance, payoff, or assumption), and second, the spouse keeping the house must find a way to pay the other spouse their portion of the equity in the home, if any. For example, the spouse keeping the house might provide the other spouse with a greater portion of marital savings accounts or brokerage accounts in an equivalent value to the other spouse’s portion of the equity in the home. Oftentimes, however, the largest asset couples have is their home and there is no other way to provide each spouse with 50% of the equity in the home except to sell the home and divide the equity proceeds resulting from the sale.

Do I have to share my retirement/401(k) savings?
It depends. If you have retirement savings that you accumulated prior to marriage, those funds would typically be considered “separate property” and not subject to division in divorce. Retirement savings and 401(k) account funds that have accumulated during the course of the marriage are considered “marital property,” and are subject to equitable apportionment between the spouses. If you both have close to an equal amount of retirement savings in each of your individual retirement accounts, you might both keep your individual accounts without splitting them. If one spouse has saved most of the retirement for the couple in his or her individual 401(k) account, then the other spouse is typically entitled to half of the funds. That being said, dividing the marital estate is a creative math problem. If you keep your full 401(k) account in the divorce, is there another way to allocate to your spouse the equivalent of 50% of your 401(k) savings? Could you provide your spouse with a greater portion of the equity in the home? Are there other liquid accounts your spouse could be allocated? This is a situation where you definitely need to consult with a lawyer to figure out the best way to divide your marital retirement accounts fairly without incurring extra fees and expenses.

Can I get (or will I have to pay) alimony in North Carolina?
Alimony is not automatically awarded in North Carolina. North Carolina has a need-based approach to alimony; one spouse must need alimony to maintain the standard of living they became accustomed to during the course of the marriage and the other spouse must have the ability to pay alimony. The “supporting spouse” would pay alimony to the “dependent spouse” to cover the dependent spouse’s needs that they cannot afford on their own.
In North Carolina, if adultery was committed by the dependent spouse (even if the dependent spouse needs alimony), however, this behavior bars the dependent spouse from receiving alimony. If the supporting spouse has committed adultery (and the supporting spouse has the ability to pay), then the dependent spouse will be awarded alimony.

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Divorce Differently

Arbitration in Family Law Cases

South Carolina Alimony 101

North Carolina Alimony 101

Part I, Stay-at-Home Parents and Divorce: What to Expect

Frequently Asked Questions in a Divorce Consultation (Part III)

Frequently Asked Questions in a Divorce Consultation (Part II)

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