Ask Carolyn
Dear Readers,
Today’s first Ask Carolyn question is a doozie on alimony. The second one starts a discussion on Revenge Porn in North Carolina.
Dear Carolyn,
How can someone defend themselves, or best fight against alimony?Long story short, Plaintiff and Defendant were in a marriage way too long. Defendant stayed because of the children; marriage went from bad to worse by way of everyone’s attitude, respect, attention, and affection all heightened in negative ways.
Plaintiff worked until the children were born then stayed at home, working in the marital business or 4 months of the year making a good salary and began working 4-5 years ago.
Defendant does make substantially more than Plaintiff regarding salary ($105K v. 40K).
Defendant willingly agreed to take on the majority of the marital debt (because he knew Plaintiff wouldn’t pay it and wants creditors to be paid – consisting of $60-65K alone), signed over ½ – 401(k), and let Plaintiff have all the marital assets inside the home (that she took while Defendant was away on business – like a thief in the night).
The Plaintiff has taken all the claims for alimony and tossed them into the air saying that Defendant abused her – not so; she is unable to work due to illness – not so, she abandoned the marital bedroom prior to leaving (7 months), abandoned the marriage in 1/2015, hasn’t/didn’t pay any of the marital debt, left and started a new life but not before turning their 3 adult children against him due to the above-noted lies.
With all other claims and divorce behind; Defendant now only has alimony hovering over his head and has wanted to do the right thing all along but paying the majority of the debt at a minimum will take him 25+ years not to mention a now deficit on the marital residence with two mortgages. Even though he has the earning capacity, there is no money left for alimony – he is actually in the hole on average $1,200 a month (which is where his income came into play). Once the marital house sells, he will have to live somewhere and have a life.
There are things listed on her Financial Standing Affidavit like a future car, 401(k), the potential this and that; he also has these issues too. Is the attorney just fishing for the big one and willing to take whatever bites?
My questions are:
- How will a Judge handle the debt v. alimony issue; and
- Will a Judge give Defendant a reasonable amount to live on month to month (as listed on P’s Financial Standing Affidavit)?
BTW: This is not a case in your county, but it is in NC; also, Plaintiff is represented, and Defendant no longer has the means to pay for an attorney since it cost him $12,000 just to get the house on the market and answer initial pleadings and file for the divorce only. Plaintiff comes from a wealthy family, and her family is paying for her representation, and also why she the family has so much debt. This debt issue has continued on her own since DOS.
Thanks!
K
Dear K:
This is a doozie of a question, and thanks for asking. I am assuming that the ex-Wife is the Plaintiff and that the ex-Husband is the Defendant. I would encourage the Husband to obtain an attorney. There is no way he should be representing himself on this one! I wish I knew what county this case is in; local customs impact alimony decisions by judges.
I have some good news for you, K. If the evidence is properly presented, the court is required to consider “relative debt service requirements of the spouses, including legal obligations of support” in determining the amount and duration of alimony. NCGS Section 50-16.3A(b)(10). Thus, Husband will want to present to the court the agreement or court order that makes him responsible for the marital debt.
Yes, the Husband gets a reasonable amount for his living expenses.
The court will set a reasonable budget for Husband’s lifestyle needs, plus the monthly debt service he must bear. Only the remainder after that should be considered available for alimony. It seems from the fact pattern that there may be minor children, and if so, then the child support Husband pays is also considered.
Let me give you a hypothetical example. This example may not have as much debt as the Husband writing to me in this question. The Husband makes $105,000, which after taxes nets Husband $85,000. Let’s say Husband needs $36,000 a year for his housing, food, car, utilities, and other needs. Let’s say his marital debt service is $24,000 a year. This leaves $25,000 available for alimony per year. However, if there is child support of $1000 per month ($12,000 per year), that means only $13,000 available for alimony per year. If the debt is higher than in my example, he could easily owe no alimony.
The other angle is: ex-Wife makes $40,000. Does she have any real needs above this? Can she live on this? There is one case where retirement savings was allowed as an expense for alimony, but typically, this is not a budget item for the ex-Wife in situations in this economic bracket, plus Wife has a retirement account. I have not seen a judge allow a hypothetical future car payment, and I would argue that is speculative.
Digest this information, and write again if you have other questions.
Dear Carolyn,
I broke up with my boyfriend, and he has nude photos of me. He has threatened to expose them on Facebook. Can he do this?
Carolyn Answers:
This threat is in the category of Revenge Porn. There is a law that makes his conduct a Class H felony for disclosure. NCGS Section 14-290.5A. I would tell him about the felony, and that should be a deterrent to his posting. Ask him to destroy all copies of the photos of you. There is an amendment to the Revenge porn statute I am watching that is advancing through the North Carolina Legislature right now.
Look for the next Ask Carolyn in two weeks, and I’ll give you more information on Revenge Porn in North Carolina.
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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your unique case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”
This blog is a revised excerpt from Ask Carolyn, available on kindle.