Upkeep amid the COVID-19 pandemic | Smith Debnam Narron Drake Saintsing & Myers, LLP

The economic environment usually plays a role when divorced spouses are negotiating support issues or litigating. Economic factors such as the housing bubble and the associated debt crisis in 2008 can have a significant impact on maintenance. A health crisis can also have economic repercussions and therefore affect livelihoods. Due to the nature of a health crisis, the health of the parties, not just their financial well-being, may affect new as well as existing maintenance obligations.

Under North Carolina law, alimony and amount depend primarily on the parties’ income and expenses. The income and reasonable expenses of a dependent spouse seeking maintenance determine the dependent spouse’s need for spousal support. In contrast, the supporting spouse’s income and reasonable expenses determine the spouse’s ability to pay spousal support. The measure of the dependent spouse’s need for support is ideally the amount that is required, in addition to the income he or she receives, to maintain the standard of living he or she experienced during the marriage. Regardless of the needs of the dependent spouse, the maintenance should be set at an amount that is within the solvency of the supporting spouse.

Effects of COVID-19 on the production of maintenance

The COVID-19 pandemic is creating uncertainty for many people about the prospect of future income, whether it be from vacation, layoffs or business closings. Most likely, the income analysis for maintenance negotiators carried out today will not look like it did a few weeks ago. A decrease in income or an overall loss increases the dependent spouse’s need for maintenance and exposes the supporting spouse to the prospect of paying more. On the other hand, reduced or lost earnings for the supportive spouse will leave the financial needs of some dependent spouses unmet.

The physical, emotional and mental health of the parties are among the factors that are taken into account when determining the amount and duration of maintenance, as these factors include the earning capacity of each spouse, the amount of related expenses, the schedule for re-entry into the workforce and the duration of alimony will affect staying in the workforce. North Carolina law does not provide guidance on how to include these factors in determining alimony. Despite the lack of accurate means of quantifying the physical health of each spouse, when either party signs COVID-19, the physical health of one or both parties can be a more important factor in livelihood than usual.

Effects of COVID-19 on changing and ending alimony

In North Carolina, maintenance orders are subject to change due to a change in circumstances related to the financial needs of the dependent spouse or the solvency of the supporting spouse. However, the North Carolina courts cannot change alimony payments solely based on a change in the parties’ income. Evidence must be provided that the change in income is related to a change in the solvency of the supporting spouse or the need for support of the dependent spouse. Once the amount is established, changes in income do not necessarily result in a change in a maintenance obligation, but the law provides an opportunity to re-examine the amount in appropriate circumstances. The full extent of COVID-19 remains to be seen. However, some payers and dependents are likely to need a change in maintenance obligations if one or both parties are affected by the health or financial situation. While access to courts in North Carolina is currently ineligible due to the stay of trial until June 1, 2020, parties may still file alimony amendments, although the timing at which the court will hear such requests remains uncertain .

Some negotiated maintenance arrangements are included in a contract between the parties instead of a court order. The parties will choose either a court order or a contract, depending on the pros and cons of each option in their particular circumstances. Maintenance payments stipulated in a contract are generally less changeable than maintenance allegations contained in a court order. A court maintenance order can inherently be changed, while a maintenance contract must contain amending provisions in order for changes to be made. Some maintenance contracts set a schedule according to which the maintenance changes at certain times. In other cases, the spouses agree that future changes in one party’s income will trigger changes in alimony. Whether COVID-19 affects the contractual maintenance obligations therefore depends on the terms of the respective agreement.

Maintenance can be canceled and changed. The death of a spouse is one of the final events. Therefore, COVID-19 has an extreme impact on maintenance if one of the parties dies from it. Dependent spouses, counting on the future stream of support, may be financially devastated. Negotiated maintenance agreements often include the supportive spouse’s obligation to maintain life and sometimes disability coverage to compensate for lost or reduced support if the supporting spouse dies or becomes disabled. COVID-19 points out the importance of such protective measures.

Effects of COVID-19 on the timing of maintenance control

COVID-19 is likely to have a crucial impact on the time spouses can address the issue of alimony. The uncertainty surrounding the COVID-19 pandemic is likely to result in many separated spouses, whose health or income is compromised, postponing or suspending maintenance negotiations. For many spouses, alimony is a long-term source of income and a long-term monthly financial obligation. Spouses should hesitate to make at least long-term support decisions when there is uncertainty about income prospects, health conditions, or both. The timing of COVID-19 could worsen the situation for dependent spouses who do not receive sufficient voluntary support from the other spouse or who are deprived of it and who are forced to pursue spousal support in court. You have the prospect of sharing in the supporting spouse’s economic hardship caused by COVID-19 and its adverse effects on the income, health, or both of the supporting spouse. Conversely, if the income, health, or both of the dependent spouse is adversely affected by COVID-19, a supportive spouse has a potentially higher maintenance obligation.

Regardless of the health and financial situation of the individual spouses for whom maintenance is being considered, COVID-19 affects when the parties can determine maintenance, even if they are healthy or have avoided financial difficulties. With limited exceptions, none of which related to spouse assistance, no lawsuits are currently being held in North Carolina due to COVID-19. If legal proceedings are resumed to any extent and for the foreseeable future thereafter, the current, if not stricter, restrictions on persons entering court buildings will remain in place. Therefore, the timing of the decision on spousal support claims is uncertain, even if one or both spouses want or have to decide on maintenance by a court at that point.

Effects of COVID-19 on maintenance enforcement

The enforcement of maintenance is usually influenced by COVID-19. A real inability to pay alimony can be a valid defense against certain types of enforcement proceedings arising from the failure of the supporting spouse to pay alimony as required by the parties’ agreement or court order. For the same reasons that COVID-19 could impact a maintenance obligation at its establishment, the actual maintenance payment could be at risk in the context of the current health crisis. A supporting spouse may rightly lack the means to meet his or her maintenance obligation for health reasons or low income. The maintenance obligation of such a supportive spouse is not lifted, but the obligation is currently not enforceable. A supporting spouse in this situation should consider whether a request to change their obligation as previously described is appropriate. Regardless of the need to enforce a maintenance obligation in court, maintenance enforcement proceedings are no exception to the current stay of court proceedings in North Carolina.

looking ahead

The alimony impact of the COVID-19 pandemic will be relatively short-lived if the spread is narrowed and the economy is allowed to recover in the short term. If the spread of COVID-19 continues, it will be even more difficult to set up maintenance than before.