This week Ask Carolyn further answers two male readers’ questions regarding alimony and ex-wife harassment. One of the letter writers has written Ask Carolyn again with some more specifics. See the August 31 Ask Carolyn for the original questions.
This is the follow-up information you requested regarding my August 31 question concerning the equitable distribution (ED) settlement in my divorce.
To recap, we’re trying to sell the house, which is underwater. My ex’s attorneys want $2,000 a month in alimony and my ex earns $40,000 per year.
I want to find out if the courts will grant her alimony and attorney’s fees (now over $40,000), and if I can declare bankruptcy if they do and get it removed.
Here is the additional information. My monthly take home after taxes and a small contribution to my 401K ($266.24) is $5,354 a month. Revolving short term (credit card debt) is approximately $1,425 per month (these are minimum only payments with a 20 to 30 year payoff period). This leaves me approximately $3,900 per month.
Currently, the mortgages are $2,200 per month, with miscellaneous expenses – home insurance, real estate taxes, car insurance, repairs (no car payment, but the car has 175,000 miles), utilities, food, dry cleaning, etc. – running approximately another $2,200 per month. This does not include dining out, vacation, recreation, gifts or charitable contributions. Leaving a current deficit of $500-plus per month.
Once the house is sold (a loss of approximately $40,000), it will free up the mortgages, insurance and taxes – approximately $2,580. The ex currently claims her housing expense is $1,100 per month. If I get an apartment for $1,100, the same as she claims, it “frees” up to $1,480 per month.
Although the $1,480 seems to be readily available for her to claim, I’ll be dead or close to it before the revolving debt ordered by the ED ever gets full paid. (I’m 55). In addition, there is no provision for a car expense of any kind; I also have approximately $15,000 in unreimbursed dental expenses coming up in the very near future.
As to the ED, we basically split what assets we had down the middle as of the date of separation. She ended up with approximately $130,000 from my retirement account; I got approximately $155,000; the difference being her half of the revolving debt. There is a small loan outstanding on the 401K account that was included in the net monthly take home pay above.
Opposing counsel has yet to execute the qualified domestic relations order (QDRO) – my guess is this is being done intentionally, as the ex will need to come up with $20,000 when the house gets sold for a loss. She will either need to “borrow” from her parents, or they will try to get me to agree to take it on, and she gets less of the retirement account balance.
Carolyn Answers …
Thanks for writing with the additional information. You have significant cash flow problems. I wish you had reached out a little sooner, perhaps before the ED. I think something could have been done with the 401K retirement account to have relieved most of the cash flow problems. There are some very special tax rules for withdrawals by the alternate payee (the spouse who is not the plan participant) in divorce settlements. The 10 percent penalty can be avoided in the QDRO. I would have suggested a distribution to the alternate payee of enough to pay off the revolving debt and the shortage on the house. This would have been a better “true-up” of the 401K than simply giving you $20,000 more of before tax dollars. The debts will have to be paid with after-tax dollars, so this is probably not fair to you. If the ED judgment is within the last year, Rule 60 might be available to correct this.
Have you explored whether a short sale is available for your house?
Given the numbers you presented, you may not currently be a supporting spouse. And, unless you are a supporting spouse, you do not owe alimony. That gives rise to another question: At the date of separation, had your ex been making $40,000 per year? Were the two of you living beyond your means, and thus the revolving credit? What kinds of charges created the revolving debt? Do you get bonuses with your job?
While North Carolina does not have statutory alimony guidelines, Orange County has some local guidelines, and under that guideline, the alimony came to $512.50 before consideration of all the debt. Under North Carolina law, the debt must be taken into account for amount and duration of alimony.
(Excerpt from August 31)
The plaintiff’s ex-wife has lied to the point that the defendant’s adult kids no longer speak to him. He does not partake in the drama of plaintiff nor adult children, but the truth has yet to be told. The lies stem from plaintiff trying on every level to obtain alimony.
Carolyn Answers …
Children are your blood and your love. Alienation of parent-child (even adult children) is terrible for all concerned. I would work to mend the relationships with the adult children in this manner:
Ask the adult children to tell you what you can do to repair the relationship. You can do this in writing if that is all you can do.
Continue to recognize the holidays, birthdays and important occasions with gifts and cards. Keep contact going that way.
Remember, this is a matter between their mother and you, and not between your children and you. In the letter, you might explain that the dispute is between their mother and you. There are two sides to every story, and you will not burden them with your side because you think that is unfair to them.
Offer to go to relationship counseling or pastoral counseling with the adult children. You pay.
Keep reaching out, and I think you will be successful eventually in rebuilding the relationships. Give the situation time.
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Note that answers are intended to provide general legal information and are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.