At least in North Carolina, alimony (including post-separation support (PSS)) is one of the least predictable outcomes in family law. There are 15 factors listed in the alimony statute that must be considered, plus a catch all factor. Once those factors have been considered, a family court judge must make an award (or not) that she finds to be “equitable”. “Equitable” is legalese for “fair”.
Contrast this with child support, which in North Carolina is most commonly determined pursuant to a formula adopted into law.
The current method for determining alimony in North Carolina creates a lot of problems. Judges can’t be sure whether they are being consistent in alimony awards. As one family court judge told me recently, they can be consistent in their approach, but without a formula, they have no way of knowing whether their actual awards are consistent between judges, between counties, or between cases decided by the same judge in the same county.
This in turn makes it very difficult for family lawyers to give accurate predictions for alimony outcomes to their clients (especially before you even know who your judge would be). We can clearly describe the approach, but cannot accurately predict the outcome in any particular case. Given that very few alimony cases are being tried in North Carolina, no one attorney has enough sample size of alimony trials under their belt to make a statistically accurate prediction.
This, in turn, makes it difficult for some clients to feel confident about their alimony decisions. They are frequently unsure whether they are paying too much, or accepting too little. The truth is, no one really knows unless the amounts being discussed are outrageous.
To remedy this problem in their jurisdictions, some states have adopted alimony formulas. Massachusetts, Pennsylvania, Arizona, California, New Mexico, Kansas and Colorado have some form of formula. Florida has recently been at forefront of this conversation.
North Carolina may be headed in the same direction. Currently, Orange County is reportedly at least informally testing a formula for alimony awards. There is a committee working on a potential alimony calculation proposal for eventual consideration by the North Carolina Legislature. Most judges that I have heard from are in favor of some kind of formula that would at least given them a starting point, even if it was not mandatory.
However, the devil in these formulas is in the details. Some formulas do not take the spouses’ expenses in consideration at all (a major factor in North Carolina). And, in order to be at all helpful, a formula necessarily has to eliminate some or most of the 16 factors currently listed in the North Carolina statue. Then the conversation has to be about which factors to de-emphasize or eliminate all together. And, that is where things get sticky. I suspect that the eventual outcome will be similar to child support, i.e. a presumptive formula that can be altered upon showing that a particular case is not well suited to the formula.
The adoption of an alimony formula in North Carolina will make it much easier for attorneys to advise clients, and for clients to have confidence in their decisions when resolving spousal support issues. But, depending on its format, a formula could have huge consequences for spouses in need of support in the future. In the meantime, we will wait and continue to make educated guesses for our clients.