Guide to Post-Separation Spousal Support and Alimony

This guide may assist in answering questions you may have regarding Post-Separation Support and Alimony. We encourage you to ask other questions, as it is impossible to answer all of your questions in this guide.

What is spousal support?

North Carolina law provides for two types of spousal support based primarily on need: Post-separation support (PSS) and Alimony. Post-separation support is a temporary award of financial support that is paid until a final determination of alimony is made (either alimony is granted or denied). Alimony means payments for the support and maintenance of a spouse, either by lump sum or on a continuing basis.

Who has a claim to receive spousal support?

Both PSS and alimony are available in North Carolina to financially dependent spouses regardless of proven fault on the part of the supporting spouse. Alimony may be granted if: (1) the requesting party is a dependent spouse; (2) the other party is a supporting spouse; and (3) after weighing the circumstances, an award of alimony is found equitable Fault on the part of the dependent spouse may, however, still be a factor in making a determination of whether or not to award spousal support.

Does my divorce need to be pending in order for me to bring an action for spousal support?

No. An action of either PSS or alimony may be brought at the time you file for divorce, or as an independent action whether or not an action for divorce is pending. The important thing to remember is to make a claim for alimony prior to the final decree for divorce.

How does a divorce decree affect my ability to receive alimony?

A judgment of absolute divorce with no pending claim for alimony is a bar to a claim for alimony. A claim for alimony must be pending prior to a grant of divorce, otherwise it is forever lost.

Can alimony be waived?

Yes. However, if you waive your right to receive alimony, you may not make a later claim for support.

Will I be required to pay spousal support?

In North Carolina, determinations of who, if anyone, should pay spousal support are based primarily on need. Spousal support may be awarded when one spouse is financially dependent (dependent spouse) on the other spouse (supporting spouse).

Is the court required to order post-separation support?

PSS must be ordered paid by a supporting spouse to a dependent spouse if the court finds that the dependent spouse’s financial resources are inadequate to meet his/her reasonable monthly living expenses and needs and the supporting spouse has the ability to pay. An order of post-separation support will terminate, pursuant to the applicable statute, if (1) the parties resume marital relations; (2) the dependent spouse remarries or cohabits with another adult in a private heterosexual or homosexual relationship; (3) upon the death of either the dependent or supporting spouse; (4) the date on which alimony is either granted or denied; or (5) the date which the court sets for termination

How much spousal support will I receive? How much spousal support will I be required to pay?

There are no set criteria in determining the amount or duration of spousal support. By statute, the court may “exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term.”

In making a determination of alimony, what factors will the court weigh?

In determining the amount, duration, and manner of alimony payment, the court shall consider all relevant factors, including:

• The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
• The relative earnings and earning capacities of the spouses;
• The ages and the physical, mental, and emotional conditions of the spouses;
• The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
• The duration of the marriage;
• The contribution by one spouse to the education, training, or increased earning power of the other spouse;
• The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
• The standard of living of the spouses established during the marriage;
• The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
• The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
• The property brought to the marriage by either spouse;
• The contribution of a spouse as homemaker;
• The relative needs of the spouses;
• The federal, State, and local tax ramifications of the alimony award;
• Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
• The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

What is marital fault?

Under North Carolina law, an alimony claimant is not required to prove the other spouse is at fault in order to be entitled to spousal support. However, law still retains the concept of marital fault and allows the judge to consider evidence of marital fault in making a determination of spousal support. By statute, marital fault is defined as: (1) Illicit sexual behavior (meaning “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engage in by a spouse with someone other than the other spouse”); (2) Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; (3) Abandonment; (4) Malicious turning out of doors; (5) Cruel or barbarous treatment endangering the life of the other spouse; (6) Such indignities as to render the condition of the other spouse intolerable and life burdensome; (7) Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets; (8) Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; (9) Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.To have any affect on spousal support, it must be shown that the marital misconduct occurred prior to the date of separation. Post-separation misconduct is only allowed as evidence to corroborate or help prove marital misconduct that occurred before the date of separation.

How will adultery affect a claim for spousal support?

Illicit sexual behavior is not an absolute bar to post-separation support; however, the judge may consider it in making a determination of whether or not to award PSS and how much. The law differs with regards to the affect illicit sexual behavior has on making a determination of an alimony award. Where only the dependent spouse has committed an act of illicit sexual behavior, no alimony will be awarded. Where only the supporting spouse has committed an act of illicit sexual behavior, alimony must be awarded to the dependent spouse. And, finally, where both parties have committed acts of illicit sexual behavior, it is within the court’s discretion to either grant or deny alimony. Another point to remember is that the illicit sexual behavior must not have been condoned, or forgiven. If your spouse engaged in illicit sexual behavior during the marriage and then you engage in sexual relations with your spouse knowing about his/her illicit sexual behavior, you have condoned the fault.

Will alimony payments end?

Alimony ends at the earlier of: (1) the date set by the court for termination, if any; (2) the remarriage or cohabitation of the dependent spouse; or (3) the date of death of either party.

Can my spouse deliberately avoid paying alimony?

No. Generally a supporting spouse’s income at the time the alimony claim is pending is used as the earnings criterion. However, if the supporting spouse is deliberately trying to avoid financial responsibility by quitting a job, refusing to seek gainful employment, or by depressing his/her income, current income will not be used.

How will alimony affect my taxes?

Alimony is deductible by the payor spouse and reportable as income to the dependent spouse, provided that certain criteria are met and that separate returns are filed. You and your spouse may privately agree that the tax deduction and taxable income parts of the federal alimony law do not apply. You may make the alimony nontaxable to the payee if it is nondeductible for the payor.

What amount of alimony will I receive?

There are no guidelines or set amounts of alimony. The amount of alimony is within the judge’s discretion.

How are alimony payments enforced, modified or terminated?

Enforcement of alimony is governed by statute. There are a number of remedies for enforcement, such as arrest and bail, garnishment and attachment, and civil contempt. Modifiability of alimony requires two things: (1) alimony must be being paid under court order and (2) a substantial change of circumstances has occurred. An alimony or spousal support order may only be modified by the state that issued the original order. The original order should include a detailed finding of the parties’ financial condition and circumstances such that a record exists for comparison. If alimony is only agreed to in a Separation Agreement, the rules of contract law and enforcement will apply. Your Separation Agreement including alimony provisions may be incorporated into a judgment so that the amount of alimony may be modifiable by the court. Alimony will terminate upon the earlier of: (1) you and your spouse resuming marital relations; (2) the dependent spouse’s remarriage; (3) the dependent spouse cohabiting with another adult in a private heterosexual or homosexual relationship; (4) the death of the dependent spouse or supporting spouse; or (5) the expiration date set by the order.

Will I be able to recover my attorney’s fees?

North Carolina law allows the court, in its discretion, to enter an order for reasonable attorney’s fees with both an award for PSS and alimony. Generally, attorney’s fees are available to a dependent spouse when it is found that spouse is eligible to receive support.

What other relief is available?

A court may also award other types of relief as part of a PSS or alimony award. Such other relief may be attorney’s fees, as discussed above, exclusive possession of real or personal property (ie: exclusive use of the marital residence), and medical expenses, including payment of uncovered health care expenses), and health insurance coverage.