Dependent spouse in alimony determinations – It would be very difficult to put a number on how many laws and legal policies are massively misunderstood by the general public, but needless to say, it is a very high number. Family law is an area of law that commonly has misconceptions, due to factors such as television portrayal, what people have heard (with no context at all, off a random set of facts involved in a completely different case), and how things worked generations ago.
One of the biggest misconceptions is how alimony works, and who owes what to whom when parties divorce. Part of that misconception is that is it automatic that one spouse will be required to pay alimony to the other. This is not the case. In fact, the most important initial determination that a court must decide is whether one of the parties is legally considered a “dependent spouse”. In this blog, we will talk about what a dependent spouse is and why this legal concept is important. Like all of our blogs, this is intended for very general informational purposes only and is not intended as a substitute for the advice and counsel of a family law attorney.
What is a dependent spouse?
Under North Carolina law, a dependent spouse is the party to the marriage that is “financially dependent” on the other spouse. Sometimes that determination is made by simply comparing the income of both parties. Sometimes there is much more to it than that and other factors can come into play. These are just a few examples of those other factors:
- The relative earning power of the parties
- The relative health of the parties
- The relative age of the parties
Typically, the fact that someone is a dependent spouse either has to be stipulated to, or proven in court. It is not something that is automatically assumed.
Why does it matter whether or not someone is a dependent spouse?
In North Carolina, alimony is paid by the supporting spouse to the dependent spouse. This means that generally, if there is no dependent spouse, then nobody is entitled to receive alimony payments.
Is simply being a dependent spouse enough?
No. In North Carolina, if the dependent spouse committed adultery and the supporting spouse did not, the dependent spouse will not be entitled to alimony. Conversely, if the supporting spouse committed adultery while the dependent spouse did not, then the dependent spouse will be entitled to some alimony (note, however, that a judge could order a nominal amount). Other limitations to alimony also exist, especially with regard to timeframes and amounts.
Other factors that are also considered in an alimony determination
Whether or not someone is a dependent spouse is not the end of an alimony consideration. We wrote a blog on alimony which you can access here. Some factors that are considered in addition to the dependent spouse determination:
- The income of both parties
- The length of the marriage
- The behavior during the marriage
- The relative assets and liabilities of both parties
- The relative needs of both spouses
These are just a few examples. North Carolina General Statute 50-16.3A, spells out all of the factors that North Carolina courts use to determine alimony.
How does a dependent spouse get alimony?
The spouses may agree to specific alimony payments in a separation agreement or pre-nuptial agreement, or alimony may be ordered by a judge. A dependent spouse must specifically ask the court to order alimony – it is not automatic. The dependent spouse must file a motion for alimony before the final divorce is granted. If the party does not file before this deadline, then they have waived their right to request alimony and will not be entitled to any court-ordered alimony payments.
Family law is a complicated topic that has many considerations that must be taken into account. If you are in need of a family law attorney in Charlotte, North Carolina or the surrounding areas, contact us.