I took a hiatus from all the wrong laws. Two main reasons: I wanted to give you all a break from my rambling, and I was paralyzed in figuring out which of the many aspects of the wrong laws I was going to talk about next.

Trying to figure that out was like trying to reach the end of a Moebius strip.

Here are the previous blog posts:

Child Support

Child Custody

Equitable Distribution

In any event, all the divorce laws are still wrong. A few more people responded to my last post on Equitable Distribution, and I was mostly right. That’s 3-0 “ish.”

Here’s the “mostly”: in calculating any Equitable Distribution distributive award, the maximum allowed amount would have to be 100% of the marital estate existing on one party’s side of the ledger. So, take the following scenario:

Prior to the marriage, John owns a house worth $100,000.
John gets married, and the house is $100,000 at the date of marriage. There is a mortgage of $80,000.
House is $100,000 at the date of separation, and mortgage is $0.00.
The house is the only asset at all, whether separate or marital.

Here, the house is separate. The mortgage paydown is a distributional factor. The value of the marital estate is $0.00. There can be no distributive award unless we do the following:

Permit any distributive award regardless of the size of the marital estate; and
Permit the distributive award to be paid from separate funds.

This is a fascinating question about “the law” versus “equity.” So, give me some more feedback about this one by clicking here.

On to the next: Alimony/PSS.

Remember, I’m trying to point out black holes in how things operate within our family law world.

After reading this next post, you can click here to send me your comments and change my mind.

Alimony is up next. You’ll say: “Alimony is exactly the way it should be. It’s all about reasonable needs and expenses. We all have the same budget to figure out in our lives. We all have a ‘standard of living,’ so what’s wrong with using that same framework to determine alimony?”

I’ll say: “You’ve been suckered into this fabrication of ‘standard of living.’ It sounds great, but it’s wrong.”

By the way, if you try to use this post against me in real life, good luck. The laws are wrong, and I can’t change them. Therefore, I’m going to apply the “wrong” laws in my practice, because those are the parameters we have to live by, right or wrong.

When talking about “amount and duration,” the alimony statute tells the court to consider some of the following:

The relative earnings and earning capacities of the spouses;
Blah, blah, blah, and then: the standard of living of the spouses established during the marriage; and
The relative needs of the spouses.

Yes, there are other factors, including marital misconduct. I’ll deal with that one in another post.

This farce I refer to is the “standard of living of the spouses established during the marriage.” This typically leads attorneys to start arguing about financial affidavits, reasonable needs and expenses, how to cut things out, whether a new Maserati is a reasonable purchase after owning a Toyota Highlander, and so on.

Hint: Who cares about expenses, pattern of savings, retirement contributions, excess credit cards, etc.? Every single one of our “standards of living” involves spending 100.00% of our net incomes. 100%. Without question or variance. There is no other mathematical way to look at it.

The “spending” might be putting the money into a 401(k), or savings account, or credit card payments, or a 529, but that doesn’t change the fact that every dollar is spent.

Our laws are wrong in that they require this “affidavit of financial standing” to talk about expenses. The real analysis should just be the following:

What did the marriage earn over the past few years? That’s typically easy. Look at the tax returns. This is more difficult with business owners and 1099 employees, but not overwhelming.
What does the Great State of North Carolina believe is the correct amount of family net income during the marriage that should be distributed to the dependent spouse?

- 50% of all net income?
- 40%?
- 30%
- Some other %?

By doing that simple analysis, you remove this nonsense of determining whether expenses are reasonable. Are we really going to pretend that we, as lawyers and judges, can fathom what “reasonable expenses” means to a billionaire? Or someone living paycheck to paycheck? I guess that today, the answer to that question is “yes” with how the (wrong) laws are currently written.
Now, I’ve heard grumblings over the years that judges should have full discretion to make whatever decision they think is correct. I completely disagree, as we’re somehow expecting judges to be experts on The Price is Right by knowing what everyone should spend, and we’re expecting judges to be financial experts.

Fine, I’ll address your reservations: make the percentage a presumption with the ability for the judge to deviate should there be reason to do so. For instance, take that Seinfeld episode where Elaine is dating a doctor that hasn’t completed his license. At the end of the episode, the doctor says something like “it’s the dream of every doctor who gets their license to dump the person he/she has been dating and move on to the next person.” Seriously, the perfect “deviation” case is where a med student is married for 10 years making $35,000 per year, and then gets a divorce right before earning $400,000. Fine, motion to deviate.

You’ll say “That’s completely unreasonable! Everyone will always deviate!”

Wrong. Think about how many of your child support cases are deviations from the guidelines. Not gonna happen.

So how does this really fix the laws? To be blunt, it will keep financial planners out of alimony trials. It will eliminate being “judgy” about someone’s spending. It will reduce the length of alimony trials. It will eliminate some need for experts. It will create more uniformity of application across the state. It will be less taxing to judges’ brains (see what I did there?). It will stop us from having to use all those darn Excel Affidavits of Financial Standing that never print correctly! I’m sure there’s more, but that’s all I have for you at 10 p.m.

I’m probably right about all the things above. Just in case I’m not, change my mind or support my cause by clicking here.

There is so much more to talk about with alimony, but let’s save that fun stuff for later this year.

Cheers!

January 19, 2022/by FamilyLaw