Alimony & Spousal Support in North CarolinaOn October 1, 1995, the law of alimony changed dramatically. In all alimony actions filed on or after October 1, 1995, the spouse seeking alimony must only prove that he or she is a dependent spouse to be entitled to an award of alimony. The following information relates to alimony actions filed on or after October 1, 1995. Consult your legal adviser for information concerning alimony actions filed before October 1, 1995, or alimony orders entered before that date.
The court will award spousal support only to the dependent spouse. Generally, a spouse is dependent if he or she earns insufficient income to maintain the standard of living enjoyed during the marriage because of the loss of the other spouse's income.
Types of Alimony in NC
There are two types of spousal support. The first, called "postseparation support", is temporary and is designed to provide for the dependent spouse's support until a final order of alimony is entered. An award of postseparation support automatically ceases upon the entry of an award of permanent alimony. The second type of spousal support, called "permanent alimony," is alimony awarded by the court to the dependent spouse paid either in a lump sum or periodically over a specified or indefinite period. Despite the use of the word "permanent," an award of permanent alimony does not necessarily last forever. The court has the discretion to order payment of permanent alimony for only a limited time period.
Post Separation Support Hearing
The court may hold two separate hearings. The first, the postseparation support hearing, may be heard with child support and child custody claims. At this hearing, a judge sitting without a jury will hear the evidence and decide if one spouse is a dependent spouse. In deciding, the court considers the income and expenses of both the dependent spouse and the supporting spouse. The court considers each spouse's affidavit describing their income and expenses, although each party may testify before the court. The court will compare the parties' incomes and expenses, and decide the financial needs of each party and their accustomed standard of living.
If it determines that the resources of the spouse seeking support are not adequate to meet his or her reasonable needs and the other spouse has the ability to pay, the court will find the spouse to be the dependent spouse. It will then make an award of postseparation support to the dependent spouse. In determining whether to award postseparation support, and the amount of the postseparation support, the court must also consider any acts of marital misconduct committed by the dependent spouse on or before the date of separation. If the court considers marital misconduct by the dependent spouse, the court must also consider acts of marital misconduct committed by the supporting spouse on or before the date of separation.
Once the court awards postseparation support, the award continues until the date specified in the order or the entry of a final order of permanent alimony. The postseparation support can either be periodic payments, a lump sum payment, a transfer of personal property, possession of property, a security interest in real property or a combination of these.
Permanent Alimony Hearing
The procedure at the permanent alimony hearing is much the same. Once the court decides that one spouse is the dependent spouse and that the other spouse is the supporting spouse, the court may award permanent alimony to the dependent spouse. In deciding the amount of alimony to award, the duration of the award, and the manner of payment of the award, the court has wide discretion, but must consider all relevant factors, specifically including:
- the marital misconduct of either of the spouses;
- 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.
Because of the wide discretion vested in the court, there is no way to predict with accuracy the amount of alimony a court will award or the duration of such an award. Although the court's discretion is broad, the court must strive to be fair to both parties. If it finds that the supporting spouse is deliberately depressing his or her income, it can base an award on capacity to earn rather than actual earnings. Although in awarding alimony, the court attempts to allow both parties to maintain the standard of living to which they grew accustomed during the marriage, the harsh economic reality is that in most cases both spouses will be required to accept a lesser standard of living because their income levels will not be sufficient to maintain two separate households according to the accustomed standard of living during the marriage.
Alimony and Marital Misconduct
One recurring theme in both postseparation support and alimony is the idea of "marital misconduct." As defined by statute, "marital misconduct" means any of the following acts committed by either of the spouse during the marriage and before or on the date of separation:
- Illicit sexual behavior;
- Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
- Abandonment of the other spouse;
- Malicious turning out-of-doors of the other spouse;
- Cruel or barbarous treatment endangering the life of the other spouse;
- Indignities rendering the condition of the other spouse intolerable and life burdensome;
- Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
- 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.
These factors can be considered to either support the award of postseparation support or alimony if the marital misconduct was committed by the supporting spouse, or to deny or reduce the amount of postseparation support or alimony that might otherwise have been awarded, if the marital misconduct was committed by the dependent spouse.Either spouse has a right to a jury trial to decide whether the other spouse has committed "marital misconduct." Once the judge or jury has decided the questions of "marital misconduct," the judge will award or deny permanent alimony based upon the factors discussed above. Again the judge may reduce the amount awarded if the dependent spouse has engaged in marital misconduct. The court will deny alimony completely if the dependent spouse has engaged in an act of illicit sexual behavior on or before the date of separation and the supporting spouse has not.
If after an incident of marital misconduct occurs, the spouses resume the marital relationship or have sexual relations, a court may rule that the marital misconduct has been forgiven. If the court finds that the marital misconduct has been forgiven, or "condoned", the act of marital misconduct may not be used to support or defend against a claim for alimony. The forgiveness is conditioned upon the offending spouse treating the other spouse kindly following the resumption of the marriage relationship and not later repeating the same or similar behavior.
Normally, the judge will not set permanent alimony for trial until after all marital property has been equitably divided either by an agreement between the parties or by an order of equitable distribution entered by the court. In those instances where alimony is set before property is divided, the judge may review whether the dependent spouse is still dependent after the property is divided.
The right of the dependent spouse to receive alimony, and the obligation of the supporting spouse to pay alimony, terminates upon the death of either spouse, the dependent spouse's remarriage, or if the dependent spouse continuously and habitually cohabits with a person of the same or opposite sex on a regular basis in a marriage-like relationship. Periodic alimony payments may also end by the terms of a court order specifying that the payments are to end on a certain date. Either party may make a motion to increase or decrease an alimony amount any time based upon a change of circumstances.
Alimony and "Illicit Sexual Behavior"
The court treats "illicit sexual behavior" differently than the other factors listed above. "Illicit sexual behavior" means acts of sexual or deviate sexual intercourse, deviate sexual acts, cunnilingus, fellatio, anilingus, or anal intercourse, voluntarily engaged in by a spouse with someone other than the other spouse. If the dependent spouse has engaged in illicit sexual behavior on or before the date of separation, the court will deny postseparation support or permanent alimony completely unless the supporting spouse also has engaged in illicit sexual behavior on or before the date of separation. If both parties have engaged in illicit sexual behavior on or before the date of separation, the court has the discretion to award or deny postseparation support or alimony after considering all the circumstances. If only the supporting spouse has engaged in illicit sexual behavior on or before the date of separation, the court must order payment of alimony.
The idea of illicit sexual behavior is one of the most important changes of the new alimony statutes that became effective October 1, 1995. Prior to October 1, 1995, adultery automatically barred a dependent spouse from receiving alimony, regardless of whether the supporting spouse had also committed adultery, and regardless of whether the adultery occurred before or after the date of separation. Under the new statutes, only acts of illicit sexual behavior committed on or before the date of separation are "marital misconduct." The commission of an act of illicit sexual behavior by the dependent spouse may bar an award of postseparation support and alimony if the supporting spouse has not also committed an act of illicit sexual behavior.
How Alimony Affects Tax Returns
When the parties file separate tax returns, alimony payments will be considered taxable income to the dependent spouse and a deduction to the supporting spouse. All spousal support matters should be analyzed for tax consequences by your CPA or tax advisor before you sign a separation agreement or go to court. We are not qualified as tax advisors. To be tax deductible, support payments must be paid under the terms of a written separation agreement or court order.
(Read more about divorce and taxes.)
Due to the short time the new alimony laws have been in effect, there is no body of appellate cases interpreting the new laws. Therefore, although the previous discussion is a general overview of the new law, it is difficult to predict how the new alimony laws will be applied in any particular factual situation.