Alimony and Post-Separation Support
Divorce is very difficult. Not only is it emotionally tolling, but the division of property and the loss of shared spousal income can be financially disastrous. Alimony helps dependent spouses to become financially stable. Getting the support you deserve often requires the assistance of an experienced alimony lawyer / post-separation support lawyer.
Courts in North Carolina can award (i) Post-Separation Support (temporary support), AND/OR (ii) Alimony (permanent support). Post-separation support may be awarded to a dependent spouse to ensure that their needs are met before the court hears the alimony claim. Generally, alimony will be awarded after equitable distribution of property. Alimony claims are heard by a judge, although a jury trial may be requested if marital misconduct is an issue. Both alimony and post-separation support may be waived in a pre-martial or separation agreement. Unlike alimony, post-separation support cannot be appealed.
To receive an award of post-separation support or alimony, North Carolina requires:
1. An economically dependent spouse, AND
2. A supporting spouse.
A disparity in income is not enough to be considered a dependent spouse. Instead, North Carolina courts will also consider (i) the spouses' standard of living, and (ii) assets awarded in equitable distribution.
Consider, for example, a wife that earns $45,000 per year and a husband that earns $50,000 per year. Although there is a disparity in income, the spouses make roughly the same amount. A dependent / supporting relationship will probably not exist here. If, however, the wife earned $125,000 per year and the husband earned $40,000 per year, the husband would probably be considered a dependent spouse and the wife a supporting spouse. But, the court will also consider the spouses' standard of living and assets awarded in equitable distribution before coming to that conclusion.
Once a court determines that a dependent / supporting relationship exists, it will consider a number of factors in making an equitable award:
(1) The marital misconduct of either of the spouses.
(2) The relative earnings and earning capacities of the spouses.
(3) The ages and the physical, mental, and emotional conditions of the spouses.
(4) The sources and amount of income. For example, earnings, dividends, medical, retirement, insurance, and social security benefits.
(5) The duration of the marriage.
(6) The contribution of one spouse to the education, training, or earning power of the other. For example, a wife who supported her husband through graduate school.
(7) The additional expenses and financial obligations of being a marital child's custodian.
(8) The standard of living during the marriage.
(9) The relative education of the dependent spouse and the need for sufficient education and job training to find employment.
(10) The relative assets, liabilities, and debts of the spouses.
(11) The property brought to the marriage by either spouse.
(12) The contribution of a spouse as a homemaker.
(13) The relative needs of the spouses.
(14) The tax ramifications of the alimony award.
(15) Any other economic circumstances the court finds to be just and proper.
(16) The fact that income was considered by the court in making an equitable distribution.
Marital misconduct, such as illicit sexual behavior with someone other than the spouse, will be taken into consideration by the court in determining whether to award alimony. Only acts that occurred prior to or on the date of separation will be considered. Any post-separation acts of marital misconduct will only be used to corroborate evidence of pre-separation acts. Marital misconduct that is condoned or forgiven by the other spouse will not be considered. In determining post-separation claims, a court may consider illicit sexual behavior and use it at its discretion.
Why is marital misconduct important? It may either BAR you from an alimony claim OR automatically GRANT you alimony. In North Carolina, for alimony claims, a court MUST follow the following rules:
1. If a dependent spouse commits marital misconduct alone, NO ALIMONY MAY BE AWARDED.
2. If a supporting spouse commits marital misconduct alone, ALIMONY MUST BE AWARDED.
3. If both spouses have committed marital misconduct, a court has discretion on whether to award or deny alimony.
Unlike equitable distribution, in North Carolina, an award of alimony MAY BE MODIFIED. To modify alimony, the supporting spouse must present evidence of a substantial change of circumstances, which are related to the needs of the parties or the supporting spouse's ability to pay. If a dependent spouse, for example, has obtained new employment and now earns a considerable income, a substantial change in circumstances has occurred relating to her needs. Thus, the original alimony award may be modified or terminated.
Post-separation support and alimony may also be TERMINATED. Post-separation support will terminate upon:
1. The date of the order granting or denying alimony.
2. The dismissal of the alimony claim.
3. The entry of absolute divorce, if no alimony claim is pending.
Alimony may be terminated upon:
1. A date set by the court.
2. The remarriage of the dependent spouse.
3. The cohabitation by the dependent spouse and a third party. Cohabitation is defined as dwelling together continuously and habitually in a private heterosexual or homosexual relationship, even without marriage.
4. The death of either spouse.
5. The resumption of marital relations before divorce.
North Carolina has adopted the Uniform Interstate Family Support Act (UIFSA). Pursuant to the UIFSA, the court that issues the initial alimony award will maintain continuing, exclusive jurisdiction over the alimony award, even if all the parties leave the state. Thus, if an alimony award was issued by a court outside of North Carolina, the initial issuing state retains jurisdiction over the award. A party must request the outside state to defer jurisdiction to North Carolina. This is important if you have moved from the state that initially issued an alimony award and now you seek to modify or terminate the award.
Adkins Law is able to provide you with assistance in a variety of family law issues, including alimony and post-separation support. Contact Adkins Law if you wish to arrange a consultation with an experienced family law attorney. Adkins Law is located in Huntersville, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.