Spousal Support and Alimony
When a married couple separates or gets a divorce, one of the spouses may be entitled to receive spousal support payments based on either an agreement between the couple or a decision by the court itself. In North Carolina, spousal support can be in two different forms, post-separation support or alimony. While post-separation support and alimony are similar, there are a few key differences that will be discussed below.
What is Post-Separation Support?
Post-separation support, which is sometimes referred to as temporary alimony, is spousal support paid for a limited period of time, typically until an alimony award is made. The elements needed to prove a post-separation support claim are similar to the alimony elements discussed below, including the need to establish that one of the spouses is a dependent spouse, that the other spouse is a supporting spouse, that the dependent spouse cannot meet his/her needs, and that the supporting spouse has the ability to pay support to the dependent spouse. Post-separation support is designed to temporarily help dependent spouses maintain his/her marital standard of living until his/her alimony claim can either be settled or decided in court.
If the above requirements are met, a court may order a post-separation support award based on “the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons.” North Carolina General Statute § 50-16.2A. While a typical post-separation support award will dictate that payments are to be made periodically (usually monthly), a judge also has the authority to order the award to be paid as a lump-sum payment.
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When Does Post-Separation Support End?
Pursuant to statute, post-separation support terminates at the earlier of (i) the date set by the court for termination, if any; (ii) the date of death of either party; (iii) the occurrence of the remarriage or cohabitation of the dependent spouse; (iv) or the date on which alimony is allowed or denied.
What is Alimony?
Alimony is defined under North Carolina law as “an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.” North Carolina General Statute § 50-16.1A. In other words, alimony simply refers to support payments made from one spouse to the other spouse following a separation or divorce. These payments can either be agreed upon by the parties in a contract or set forth in a court order.
Requirements to Establish Alimony: Supporting Spouse and Dependent Spouse
Court-ordered alimony is only available from a “supporting spouse” to a “dependent spouse,” meaning only a dependent spouse may receive alimony. North Carolina law defines a dependent spouse as “a husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other.” Thus, to be a dependent spouse means that you do not make enough money to pay your expenses and live the type of lifestyle to which you were accustomed while married, and you depend on your spouse to pay for those expenses. This dependency requirement is the first element needed to establish a claim for alimony.
Even after one of the spouses is determined to be a dependent spouse, then an additional analysis must be made to evaluate whether the other spouse qualifies as a supporting spouse. The alimony statute defines a supporting spouse as a spouse “… upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.” Establishing the dependent status of one spouse does not automatically establish the supporting status of the other spouse, and vice versa.
Even after it can be determined that there is a supporting spouse, the court will need to evaluate if the supporting spouse actually has the ability to pay spousal support. This ability to pay is explained more fully below, but is generally calculated by subtracting the cost of the supporting spouse’s reasonable needs from his/her income. The amount left over is potentially available to be paid to the dependent spouse as spousal support.
It is up to a judge determine whether there is a dependent spouse and a supporting spouse. So long as the facts of the particular case justify it, both husbands and wives have an equal right to receive alimony (as well as post-separation support).
Factors Affecting Amount and Duration of Alimony
If a court determines that there is a dependent spouse and a supporting spouse, the court can order an alimony award, so long as the award is equitable, after considering the relevant factors of the case. Although a court has wide discretion in determining the amount and duration of an alimony award, North Carolina law provides sixteen different factors that the court is to consider. Some of these factors, which are set forth at North Carolina General Statute § 50-16.3A., include:
- 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
- The duration of the marriage
- The contribution by one spouse to the education, training, or increased earning power of the other spouse
- 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 needs
- The relative assets and liabilities of the spouses
- 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.
Most of those factors are fairly self-explanatory, but a few deserve special attention. Marital misconduct, which is mentioned in the first factor named above, is a term that covers a wide range of behaviors. Marital misconduct includes cheating, abandonment of the other spouse, excessive drug and/or alcohol use, cruel and barbarous treatment endangering the life of the other spouse, Indignities rendering the condition of the other spouse intolerable and life burdensome, and reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets. Behavior that rises to the level of marital misconduct is to be considered by the court in ruling on an alimony award.
Unlike a child support claim, there is not a set of guidelines that dictate the proper amount of alimony in a given situation; and therefore, the duration and amount of an alimony award are completely in the discretion of the court. While a few jurisdictions have enacted guidelines that use a formula to determine the proper amount and duration of this award, neither North Carolina or Guilford County have enacted such a formula. However, even without any set guidelines, an alimony award is primarily based around economic factors, specifically the parties’ respective incomes and expenses as well as the marital standard of living.
What Happens at an Alimony Hearing
At a hearing, both parties present evidence regarding his/her respective gross and net incomes, his/her current reasonable living expenses, information regarding his/her marital standard of living in the years before separation, and other relevant factors. The dependent spouse will introduce evidence to determine the difference between his/her reasonable monthly needs compared to his/her net monthly income. This difference is the amount of support that the dependent spouse claims he/she needs from the supporting spouse. The supporting spouse will introduce evidence showing his/her net monthly income, his/her reasonable monthly need, and the amount of leftover income, if any, that can be paid as support to the dependent spouse. Additional evidence can also be presented that is relevant to any of the other sixteen factors the court is to consider, including evidence as to marital misconduct.
An Alimony Award
Alimony can be awarded on a periodic basis, which is typically monthly, or in one or more lump sum payments. It can either be awarded for a specific period of time, or can be awarded on a permanent basis (indefinitely). The specifics of an alimony award will depend on the facts of the case and on the court’s analysis of the factors discussed above. While it is nearly impossible to predict with any accuracy the length that alimony will be awarded, a very rough estimate is that an alimony award could last for half of the length of the marriage.
When Does Alimony End?
Alimony terminates at the earlier of (i) the date set by the court for termination, if any; (ii) the death of either party; or (iii) the remarriage or cohabitation of the dependent spouse. However, regardless of how long the court orders alimony to be paid, even if alimony is ordered on a permanent basis with no set date set for termination, an alimony award can be modified or vacated in the event that there has been a substantial change of circumstances. Modification is discussed more fully below.
Effect of Adultery on Spousal Support Claims
In North Carolina, adultery affects the award of alimony differently depending on whether the adultery is committed by the supporting spouse or by the dependent spouse. If the dependent spouse committed adultery during the marriage and before the date of separation, then the court is prohibited from awarding alimony to the dependent spouse unless the supporting spouse also committed adultery. If the supporting spouse committed adultery during the marriage and before the date of separation, then the court must award alimony to the dependent spouse, unless the dependent spouse also committed adultery. If both spouses committed adultery, then the court can consider all of the circumstances and award alimony based on its own discretion. In the event that the adultery is known by, and ultimately forgiven by, the innocent spouse, the adultery is not something that will be considered by the court. The act of the innocent spouse of forgiving the martial misconduct is referred to as condonation.
In the context of a post-separation support claim, the adultery of a dependent spouse does not bar any claims for post-separation support that the dependent spouse may have.
Modifying an Alimony Award
An alimony award “may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party.” North Carolina General Statute § 50-16.9. Examples of scenarios that constitute changed circumstances include job loss, disability or illness, obtaining a higher paying job or any other factor that significantly changes the current financial picture. Modification of an alimony award is not automatic, and a hearing will be held for the court to determine whether a modification is proper.
Attorneys’ Fees in Spousal Support Cases
North Carolina General Statute § 50-16.4 provides that the dependent spouse may recover his or her attorneys’ fees in both post-separation support and alimony cases. This statute provides that the supporting spouse may have to pay the reasonable attorneys’ fees incurred by the dependent spouse. This provides a strong incentive for the supporting spouse to settle any spousal support claims before going to trial.
Can You Waive Your Alimony Claim?
Under limited circumstances it is possible to waive your alimony claim. One scenario is if the spouses enter into a premarital agreement that expressly bars the payment of alimony upon separation. Another scenario is when a judgment of absolute divorce is finalized before the dependent spouse fails to raise his or her claim for alimony. Once a divorce has been obtained, a claim for alimony will be barred unless there is an alimony claim pending.
How We Can Help
As experienced divorce and family law attorneys, the attorneys at Hill Evans Jordan & Beatty can help you understand the full range of your options as they relate to spousal support claims. We have experience representing both dependent and supporting spouses and can provide guidance no matter what circumstances you are experiencing. While the best option to resolve your claim may be to settle those issues through settlement negotiations or mediation, this is sometimes not possible and we are prepared to vigorously represent you in court to reach a resolution. We will listen to the facts of your case and then provide you with advice and counsel so that you will be fully prepared for each step in the process. If you have a spousal support claim in Guilford County or a surrounding area, please contact the firm of Hill Evans Jordan & Beatty so that you can ensure that your legal rights are being protected.
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