Alimony & Spousal Support

Reliable Legal Counsel for Alimony Matters in Raleigh & Wake County, NC

When a married couple separates, one spouse may be able to file a complaint with the court seeking spousal support from the other party. North Carolina courts will award spousal support only to a 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.

Determining spousal support is complex, involving numerous relevant factors assessed by the judge. In North Carolina, judges do not set alimony based on a numerical formula. Thus, alimony cannot be determined using an “alimony calculator.”

To determine alimony, a judge will start by considering the reasonable financial needs of each party, including:

• The income that each party individually earns, if any.
• Whether each party has a deficit or surplus of money each month, after paying for their own reasonable financial needs.

What constitutes a reasonable need depends on the lifestyle established during the marriage and can vary widely depending on the individual circumstances. Due to these complexities, you should consult an experienced North Carolina family law attorney before signing any agreement that could affect your right to spousal support.

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Types of Spousal Support in North Carolina

Postseperation Support

There are two types of spousal support in North Carolina. The first, called "postseparation support," is temporary support designed to provide for the dependent spouse until a final order of alimony is entered.

Postseparation support is typically a monthly amount the supporting spouse pays to the dependent spouse. Postseparation support may also include medical coverage, mortgage payments, use of a vehicle, or other necessities a dependent spouse may need. Since postseparation support is temporary, an award of postseparation support automatically ceases upon the entry of an award of alimony.

Alimony 

The second type of spousal support, called "alimony," is support that is awarded by the court to the dependent spouse for a period of time that is most often (but not always) longer than an award of postseparation support.

Generally, the length of time that alimony is to be paid depends on the length of the marriage and other relevant factors considered by the judge. Alimony can be paid in a lump sum, periodically over a specified time period, or for the life of the dependent spouse. Even if alimony is awarded for the lifetime of the dependent spouse, the supporting may petition the court to change the award if the circumstances later change (for example, if the supporting spouse has a loss of income).

Postseparation Support Hearing

If claims for both postseparation support and alimony have been filed by one of the parties, the court will hold two separate hearings to determine these issues. The first, the postseparation support hearing, is sometimes scheduled at the same time as temporary child support and temporary child custody claims. The temporary hearing is typically short, as the court limits the amount of time permitted. Because of this, the evidence presented to the judge is generally limited to the basic financial information of each party.

During the Hearing

At this hearing, a judge will hear the evidence and decide whether one spouse is the dependent spouse and the other spouse is the supporting spouse, and what amount of support is reasonable.

In deciding, the judge considers the incomes and expenses of both parties. In Wake County, the parties are each required to submit a Financial Affidavit which details his or her average monthly income and expenses. The judge will also hear testimony from each party about the expenses and income that are included on the Financial Affidavits. The judge will compare the parties' incomes and expenses, in order to decide: the financial needs of each party, each party’s accustomed standard of living, and the ability of the supporting spouse to pay spousal support.

During a North Carolina postseparation support hearing, if the judge determines that the resources of the spouse seeking support are not adequate to meet his or her reasonable needs and that the other spouse has the ability to pay, then the judge will find the spouse who needs financial assistance to be the dependent spouse and the spouse who has the ability to pay to be the supporting spouse. The judge will then make an award of postseparation support to the dependent spouse.

Marital Misconduct

In determining whether to award postseparation support and the appropriate amount, the judge must also consider any acts of marital misconduct committed by the dependent spouse on or before the date of separation. If the judge considers marital misconduct by the dependent spouse, the judge must also consider acts of marital misconduct committed by the supporting spouse on or before the date of separation.

After the Hearing

Once the court awards postseparation support, that award continues until a date specified in the postseparation support order or until the entry of a final order of alimony. The postseparation support award can be in the form of 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. Most often, postseparation support is ordered to be paid as monthly monetary payments.

Alimony Hearing

The court procedure in North Carolina for an alimony hearing is similar to the hearing for postseparation support. The difference is that an alimony hearing is usually much longer, and both parties can request sufficient time to present the evidence each feels is needed for the judge to make a fair decision. It is not unusual for an alimony hearing to last more than one day and to involve several witnesses, in addition to the two spouses.

During a North Carolina alimony hearing, once the judge decides that one spouse is the dependent spouse and that the other spouse is the supporting spouse, the judge may award alimony to the dependent spouse.

How is Alimony Determined in North Carolina?

In deciding the amount of alimony to award, the duration of the award, and the manner of payment of the award, the judge has wide discretion.

Determining factors include:

• Relative earnings and earning capacities of each spouse.
• Sources of income and earnings of both spouses.
• The ages and the physical, mental, and emotional conditions of the spouses.
• The duration of the marriage.
• The contribution by one spouse to the education, training, or increased earning power of the other spouse.
• The impact of serving as the custodian of a minor child on a spouse’s earning power, expenses, or financial obligations.
• The standard of living established during the marriage.
• The property brought to the marriage by either spouse.
• The relative education of the spouses and the time necessary to acquire sufficient education or training for employment that meets his or her reasonable economic needs.
• The relative assets and liabilities of the spouses and the relative debt.
• The federal, state, and local tax ramifications of the alimony award.
• The contribution of a spouse as homemaker.
• The relative needs of the spouses.
• Any marital misconduct by either spouse.

Presenting Relevant Evidence

Testifying about each of the relevant factors in an alimony case can require many hours of court time and might require expert witnesses. Judges are given wide discretion in deciding such matters, so there is no way to precisely predict the amount of alimony a North Carolina court will award or the duration of such alimony award.

Although the judge’s discretion is broad, the judge should be fair to both parties. If the judge finds that the supporting spouse is deliberately suppressing his or her income, the court may base an alimony award on capacity to earn rather than actual earnings. This is called imputation of income.

When Does Alimony End?

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 third party 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 at any time, based upon a substantial change of circumstances, so long as the alimony award has not already been fully paid over the time period originally ordered or otherwise terminated.

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 spouse during the marriage and before or on the date of separation:

• Involuntary separation of the spouses due to criminal acts.
• Illicit sexual behavior.
• Malicious turning out-of-doors of the other spouse.
• Abandonment of the other spouse.
• Reckless spending or destruction or concealment of assets.
• Cruel or barbarous treatment endangering the life of the other spouse.
• Excessive use of alcohol or drugs.

These factors can be considered to either support the award of alimony (if the marital misconduct was committed by the supporting spouse), or to deny or reduce the amount of alimony that might otherwise have been awarded (if the marital misconduct was committed by the dependent spouse).

Either spouse has a right to request a jury trial to decide whether the other spouse has committed marital misconduct. If a jury trial is not requested, the presiding judge can determine whether marital misconduct has occurred.

If the spouses resume the marital relationship or have sexual relations after an incident of marital misconduct occurs, 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.

How Alimony Affects Tax Returns

When the parties file separate tax returns, alimony payments are no longer considered taxable income to the dependent spouse, nor an income deduction for 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.

It is important to remember to consider the tax implications of alimony, before taking the matter to court or agreeing to a settlement. The tax implications of alimony can easily be overlooked, only to be realized too late when filing your tax returns.

Call (919) 348-2317 to learn more about alimony in your divorce.