Separation and alimony


#1

About a month ago I told my wife I wanted a divorce when I was overwhelmed by her addiction to narcotic pain medications and her inability to do anything productive with her life. She spent her hours either sleeping or in bed watching TV, unless she had to go to a doctor or some other place, but 90% of her time was spent as I described.

Because I came here from another country to marry her, and she has her whole family here, I tried to make her understand that she was the one who had to move out, however at no point I actually kicked her out. I didn’t tell her something like “I want you out of here”, or take the keys away from her (she still has the keys). About a week ago she went to her mother’s supposedly to spend the night, but then she ended up staying there definitely. She asked me to bring over her computer and a few other things. While it wasn’t right away because it was snowing and carrying things out was kind of dangerous, eventually she came here last Sunday and we took her computer and a few more of her things.

Between me and her things are more or less in good terms, but her mother always hated me and now she wants to do as much harm as possible to me. She told her my wife that she expects me to give her from $500 to $600 a month in alimony. I make a small salary that barely gets me to the end of each pay period every two weeks, in fact today, the day before I get paid, I have about $4 in my checking account, and that’s a typical situation for every pay period. I rarely go out to eat, if I do it’s to fast food places, to me even Applebee’s is a luxury. And that is if I don’t lose my job in the current economic crisis.

Now, even though I want to end the marriage because of several problems, I do love my wife and I wasn’t planning on leaving her without any money at all, I was going to give her money for gas, medications, expenses, I was going to buy her things from the store and bring them to her, but I wasn’t planning on any set amount. I was going to give her money on a need to basis.

So my question is, am I supposed to pay my wife alimony during the separation year, before I even file for divorce? Can she take me to court and have a judge cease a specific amount off my paycheck? If so, would I have the ability to demonstrate the judge through bank statements that I barely make ends meet and that I don’t have a lot of money to give her as alimony?

Also, she told me that her mother, in her quest to destroy me, found a lawyer that will work pro-bono for her. I don’t have such luxury. I would probably have to represent myself, because I simply don’t have a dime to pay a lawyer. Is there any place I can go to in Wake Co. that will provide me with a free lawyer, or will the court provide my one if I can’t afford it?

One last question I left out: Am I supposed to go to court and file for separation to get the separation legally started?


#2

If she is living separate and apart from you, then the saparation has already started. There is no legal separation in NC…you just need to live separate one year and one day before filing for divorce.

Your wife CAN get an attorney and file for Post Separation Support (aka: alimony per se…for the separation period) if she is a dependent spouse. If you can get her to agree to what you want in an agreement (signed and notarized), then that would be a legally binding document. BUT she does not have to sign anything. She can file for support and go to court and have them determine an amount based on your expenses, hers and so forth.


#3

She is the dependent spouse. However, she does not work and my salary in no way can support two people living separately. It’s not a matter of lowering my lifestyle, it’s a matter of not making enough money to pay rent and living expenses for me and her at the same time. I would like to know, if anybody here went through the experience, what are judges in Wake Co. like, are they considerate of what the supporting spouse makes and how much money he has to spend in rent and expenses, or are they harsh and expect the supporting spouse to work seven days a week and twelve hours a day to pay alimony to the dependent spouse? Would a judge, for example, take into account that I’m completely alone in this country while she has her family here?

If I have her sign a separation agreement, do I have to notarize it and file it with the court, or do I just have to keep it with me and give her a copy? Also, let’s say I write a separation agreement saying that I will give her an x amount per month, and she signs it, can she after that go to court to sue me for alimony, or would her signature on my separation agreement prevent her from filing for Post Separation Support?

Sorry for all the questions, things are difficult when you don’t have money to hire a lawyer and you don’t know anything about the matter at hand.


#4

Alimony is based on your wife’s need as well as your ability to pay, it sounds as though even if you are the supporting spouse, it could be found that you do not have the means to pay her. Your respective support systems in the community can be brought to the court’s attention, but will not be definitive as neither party is expected to have to live with relatives if it is avoidable.
You do not have to pay alimony unless you are ordered to by a judge, and yes, she can take you to court to attempt to get alimony.
If she takes you to court, you to demonstrate what you earn, and what you spend, by way of a financial affidavit, and your testimony in court.
The court will not provide an attorney in civil matters, however you may try contacting Wake County Legal Aid to see if the can help.
There is no legal separation in North Carolina, and there is nothing you need to file. Living separate and apart is the only requirement.
If you do draw up a separation agreement that includes an amount of alimony she cannot take you back to court for more support on any level, just be sure to include a paragraph in which you each agree to waive claims for alimony and post separation support.
A separation agreement is not filed anywhere and is a contract between the two of you. As long as both of your signatures are notarized it is enforceable by the court.


#5

Thanks very much for your reply.

I could pay but only about $100 or $200 at worst, and that would be rather excruciating.

[quote]You do not have to pay alimony unless you are ordered to by a judge, and yes, she can take you to court to attempt to get alimony.
If she takes you to court, you to demonstrate what you earn, and what you spend, by way of a financial affidavit, and your testimony in court.[/quote]

OK, but do you think that if she takes me to court a judge would award a small amount like what I mentioned above given that I demonstrate that in my current financial situation that’s the best I can do, or would a judge order me to pay her rent and living expenses regardless of my salary? I’m asking this because she doesn’t work, and hasn’t work for the past four years. I read that the dependent spouse is awarded an amount to allow her/him to maintain the lifestyle she or he had before. So if a judge ordered me to do that I simply couldn’t do it with my current salary, probably not even getting a second job and working 7 days a week .

So basically I have to type it up, even if it’s not in a typical lawyer type of language, and me and her have to sign it in front of a notary public and that makes it legal, is that correct?


#6

I can’t say for sure what amount of alimony a judge would order, but he or she is required to take your income and your expenses into account. Since alimony is based on need and ability to pay it would be error for a judge to order that you pay all of her expenses if that would cause you not to be able to survive. If your ex has the ability to work a judge will likely tell her she needs to find a job, or he or she may even impute income to her. This means that the court would act as if she was earning money (in amount she is capable of earning based on her education and work history, but at a minimum they should impute minimum wage). The court will then take her need into account less what she could be making on her own.
Ideally alimony is meant to enable a dependant spouse to maintain the same standard of living they enjoyed during the marriage, however in cases like yours that is simply not possible.
There is an example of a separation agreement on this website that you may want to use as a guide. rosen.com/divorce/forms/samp … agreement/. Please be advised that this agreement is merely a guide and you will need to take great care to ensure any agreement you draft is tailored to your specific case.
You may draft a separation agreement on your own, but there are many pitfalls and I strongly advise that you at least consult with an attorney to review the agreement prior to signing it. There are many issues that must be addressed in an agreement to ensure you are protected from further action. Once an agreement is signed by both parties before a notary public it is a fully enforceable and binding contract.