Can I Get Alimony if I Separate from my Spouse?

Where child supportis concerned, typically, both parents are in agreement that their children should continue to be supported and nurtured to every extent possible. While parents may disagree on exact dollar figures, generally, the desire to support the child is there. Alimony, however, can be quite a different scenario. Perhaps unsurprisingly, the idea of paying money to continue to support a spouse after the marriage relationship has ended can be an emotionally difficult concept for some. After all, if a marriage has ended, there are more than likely some bitter feelings on one level or another. On the other side of the coin, if your marriage has ended and you are the spouse who is seeking support, you may feel resentful, after giving up your career to stay at home and raise children, that your ex-spouse seems not to understand that sacrifice and willingly pay support. All of these feelings are understandable.

In the midst of all of these emotions, it can be helpful to try and focus on the facts – what the law requires, and when those laws apply. Doing so can often help reduce the emotional angst you may feel over the situation, and may help you to take a more practical look at your reality. It is not at all unusual to feel uncertain about how much alimonymight be awarded in your particular case, or for how long the payments might be expected to last. This, too, is understandable. Gaining a basic understanding of the law and working closely with a knowledgeable and experienced attorney that you trust will go a long way toward relieving the stress and anxiety that you may feel over this aspect of your divorce.

Typically, there are two types of alimonyawards – temporary and permanent. Temporary alimony awards are often referred to as “post-separation support” and are a temporary, no-fault form of support that is usually awarded from the date of separation until either the entry of a final alimony award, or the dismissal of the alimony claim.

As is the case with child support, the parties can agree to alimonyamounts outside of court as part of their separation agreement. For many couples, if they are able to work cooperatively and amicably and agree on the terms of support, this is often preferable to a long, public, contentious court battle. In some cases, however, coming to an agreement on spousal support simply isn’t a realistic option, and in those cases, the court can make the determination if necessary.

Unlike some states, North Carolina residents are not automatically entitled to alimony, nor is there a set formula for determining the exact amount of alimony that should be awarded. In North Carolina, the court must first make a determination as to whether one spouse is “substantially dependent” upon the other for his or her “maintenance and support”. Alimonymight be awarded indefinitely, or for a specified period of time. It is typically, though not always the case, that if a marriage has lasted less than ten years, an alimony award will last for no more than the equivalent of half of the duration of the marriage. The court may also provide that alimony terminates in a variety of ways – either at the expiration of a predetermined time limit, when one party begins to cohabit with another, when one party remarries, or by resumption of marital relations. Ultimately, this, too, is in the discretion of the court.

In determining the amount and duration of alimonypayments, the court may consider evidence of several factors, including:

• Marital misconductby either spouse;

• How much each spouse earns or has the potential to earn;

• All sources of income including not only salary, but also benefits, investments, or inheritances;

• The age and health of each spouse;

• How long the parties were married;

• The standard of living created during the marriage;

• Whether or not one spouse contributed to the other spouse’s professional education (e.g. a wife working to put her husband through medical school);

• The ability of each spouse to find employment if they do not already have it;

• The financial impact on the spouse who will primarily have custody of any minor children;

• The contributions that a stay-at-home spouse makes to the household;

• The tax implications of any alimonyaward;

• Any property that one spouse brought into the marriage and will continue to own afterwards;

• Any other legal support obligations that any spouse may have; and

• Any other factors that the court considers relevant to making its determination.

Generally, a court will have broad discretion in making an alimonydetermination, and may consider any factor “relevant to the economic circumstances” of the parties that it wishes. When it issues the alimony award (or declines to issue an award), the court must provide the parties with specific written reasons for its decision. Either spouse will have the opportunity to appeal the award if they wish, and if a dependent spouse is ultimately awarded alimony, they may seek recovery of their attorney fees.

When alimonyis awarded, the parties should be aware that it is typically deductible by the spouse who is paying, and reportable as income to the spouse who is receiving payments. When an alimony award is entered, the state which enters the award will usually have continuing jurisdictionover the award, and as a result, any modifications sought or enforcement efforts needed will be brought in that state as well.

If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation.