Alimony NOT granted?


#1

Hello, and Thank you again for this web site HELP.
Here is my question/s, LOL. In the state of NC are there any certain situations where alimony is not granted, knowingly? If a spouse had a affair during the marriage(result one child), next affair(no kid this time, LOL) would that negate alimony having to be paid by the other member? I retired from military service and calculated the percent she is “entitled” to, and that’s what I have been paying her, she states that if I file for even a Absolut divorce she will file for alimony and get it, I know each case is different and nothing is garneted, so I will just take your opinion on this one.
We have distributed all our assets, till she ran out of half the savings I gave her, if I gave her half once and since then have been able to build up my savings (less than 10K) can she still get some of this money? Don’t want to be eating Ramin for nothing,LOL. The big bills we had together, a small business loan for 50K, down to 29K, car loan, major credit card 22K down to 8K, 2 house payments(one house she has signed off of deed and Ive gotten it re fi’d all in my name only) other house owe more than its worth. All these bills she has never paid one dime towards, and I have no problem paying them off (current gov situation pending LOL,LOL,LOL) Ive asked her to sign Ab Divorce, but she wont do anything to loose her medical insurance (tri care from military retirement-me), will I have to go out and find her insurance and pay for it too? Know there are several questions here, I will take what you can answer, we’ve been separated for 3 yrs (in Dec) not going back, just want some answers before going to a lawyer. thank you again…


#2

*** Not a lawyer ***

Regarding alimony, NC G.S. § 50-16.3A(a) says that if she had sex (or other “illicit sexual behavior”) with someone else before the date of separation, you did not “condone” it, and you did not have an (uncondoned) affair yourself, then she automatically gets no alimony. If the positions were reversed (you had an affair and she didn’t) then she would automatically be entitled to alimony. As far as I know, those are the only situations where alimony is absolutely guaranteed or precluded in North Carolina, in any other situation (including if both of you had affairs) it’s up to the judge. And there is no set percentage or duration at all. NC G.S. § 50-16.3A(b) lays out numerous factors that a judge is to consider.

That bit about “condoning” the affair is important. Among other things, if you had sex with her after finding out about any particular acts of “illicit sexual behavior” that would likely be seen as condoning those acts. Possibly even continuing to live together might count, depending. If finding out about the second affair wasn’t what made you separate, you should certainly talk to a lawyer about your whole situation to get a real opinion about your chances.

As for finding her insurance, I believe that she would be expected to get her own insurance but the expected cost of that might be taken into account as one of the factors when determining alimony. Of course, I could be wrong on that.

As for the assets you gained after the date of separation, she’s supposed to have no claim to them (see NC G.S. § 50-20(b)(1)). On the other hand, it’s possible that the original distribution could be somehow claimed to have been unfair. Did the two of you sign and notarize a separation agreement that addressed distribution of assets? Also, if you have documentation as to what exactly was distributed and documentation as to what exactly was obtained after the date of separation, that would probably help if it comes down to a hearing. Note that debts are supposed to be distributed as well, and if you’ve taken on all of them [size=50](It sounds like your choice was between taking them on or letting your credit be ruined? I know how that is.)[/size] that could help counter a claim that the distribution of assets was somehow unfair to her.

As for obtaining the divorce, do note that she doesn’t actually have to sign. Since you’ve been separated for over 1 year, you can file a complaint for divorce at any time now. She would then have 30 days from when she was served to respond, and if she doesn’t then you can ask the court to grant the divorce. On the other hand, you said she intends to file a counterclaim for alimony if you file so her not responding isn’t likely. You’d almost certainly want to talk to a lawyer to plan for all that.


#3

There are many reasons why the court might choose to not award alimony. When a dependent spouse has an affair, it is a complete bar to receiving alimony. The biggest question in your alimony case is whether you condoned her behavior. If the court determines that you forgave her, then you still have some liability to pay spousal support. The court looks at 16 factors in determining the amount and duration of alimony, but the main question the court asks is what are the needs of the dependent spouse and the supporting spouse’s ability to pay. If she has to pay for her own insurance, this will be likely be considered to be a reasonable expense by the court.

Equitable distribution is process of the court dividing marital and divisible property. Money that you earned after the marriage through active means (not passive interest), is your separate property and is not included in a division of the assets. The court has a number of equitable distribution factors that it looks at to determine if an equitable distribution is an equal division or whether one party should receive more than 50%. Even though you have divided the marital property, since it doesn’t sound like you have a separation agreement or curt order memorializing this division, she could file suit and ask the court for an unequal division in her favor.