The termination of alimony largely depends on the terms set forth regarding duration, and whether the alimony award is put in an unincorporated separation agreement (contract) or a court order (judgment, consent order, or incorporated separation agreement).
Alimony that is provided for in a court order, whether this is awarded in an order pursuant to trial, a consent order, or a separation agreement that has been approved by the court and incorporated into a divorce decree or other order is court ordered alimony. Thus even if you agree to alimony in a consensual, contractual separation agreement, if that separation agreement is later incorporated and made part of a divorce decree, it transforms from a contract to an order. Court ordered alimony, regardless of the terms of the separation agreement, terminates statutorily upon the death of either the supporting or the dependent spouse, and also upon the remarriage or cohabitation of the dependent spouse. N.C.G.S. 50-16.9(b). So, when there is an order for alimony in place, alimony terminates upon (1) death of either spouse, (2) remarriage of dependent spouse, OR (3) cohabitation of dependent spouse.
Cohabitation is statutorily defined as … “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” To determine whether a couple has voluntarily assumed the rights, duties, and obligations of married people, the trial court must consider the totality of the circumstances. The primary policy in making cohabitation, not just remarriage, grounds for termination is the economic impact on the dependent spouse. It would not be fair, in other words, for a dependent spouse to be in and continue in a relationship where he or she may enjoy an economic impact from the relationship (i.e. new romantic interest contributes income) without the status of being married. A supporting spouse cannot automatically cease paying alimony due to the dependent spouse’s cohabitation or remarriage without a court order terminating the alimony.
Examples of when a court has found that NO cohabitation exists:
The courts seem to hold that parties are cohabitating when they are in a (1) mutually exclusive dating and sexual relationship; (2) consistently, if not exclusively spend overnights together, or have a residence together; (3) hold themselves out in the same ways as a married couple would; (4) go on dates, travel together, keep clothes and toiletries at each other’s homes, and provide care (if applicable) for each other’s children; and (5) mix finances and contribute financially to each other, pay bills and contribute to household expenses together, and maintain joint bank accounts.
When, on the other hand, an unincorporated separation agreement is involved, the terms of termination of alimony provided for in the contract dictate. Thus if no term in the unincorporated separation agreement provides for termination of alimony, it may continue indefinitely. A contractual support obligation of alimony in an unincorporated separation agreement, for example, that provided that alimony should be paid to the dependent spouse to support her while she obtained a college degree continued even after the death of the supporting spouse. The death of the supporting spouse did not end his obligation to support the dependent spouse until she graduated from college and his estate was required to provide the alimony payments to the dependent spouse. See White v. Graham, 72 N.C. App. 436, 325 S.E. 2d 497 (1985).
To contrast against court ordered alimony, while cohabitation will result in the termination of a support order entered by a court, either as the result of a trial or by entry of a consent order, cohabitation will not terminate a support obligation arising from an unincorporated separation agreement unless so specified in the contract. See Jones v. Jones, 144 N.C. App. 595, 548 S.E. 2d 565 (2001).
Unless provided otherwise in a separation agreement, however, reconciliation between parties who remain married may terminate an obligation to pay alimony, even if contracted for in an unincorporated separation agreement. Reconciliation, or the resumption of marital relations, is defined as the voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. N.C.G.S. 52-10.2. To reconcile, there must typically be substantial objective indicia of cohabitation. Reconciliation did not occur, for example, in a case where the husband and wife spend four hours a day, six days per week together, in the former marital home, having dinner together, visiting with the minor children, and having occasional sex together because the husband and wife maintained separate residences, did not share chores or household responsibilities, did not hold themselves out as husband and wife, did not indicate to others that their problems had been resolved, and did not indicate that they desired to terminate their separation. Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E. 2d 802 (1996). The Court of Appeals has held, on the other hand, that reconciliation has occurred when the husband and wife lived together for four months following the execution of a separation agreement, had sexual relations, filed a joint tax return, and held themselves out as husband and wife. See Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992).
In a nutshell, if alimony is court order, it will terminate upon (1) death of either party, (2) remarriage of dependent spouse, or (3) cohabitation of dependent spouse. If alimony is in an unincorporated separation agreement, it will terminate upon the terms of that contract, if ever; unless the parties remain married and resume marital relations.
The history of spousal support (and child support), also called alimony or maintenance, can be traced back to the Code of Hammurabi, a Babylonian code of law dated back to 1754 BC, that declares that a man must provide sustenance to a woman who has borne him children. The Code provides that “If a man wishes to separate from a woman who has borne him children, or from his wife who has borne him children, then he shall give that wife her dowry, and a part of the usufruct of a field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.”
A similar law can be traced back to the Code of Justinian, which is the codification of Roman law ordered early in the 6th century by Justinian I, who was an Eastern Roman emperor in Constantinople. The Code of Justinian essentially provided that a gift of dowry or a prenuptial donation be held in escrow by the husband for the support of the wife in the event the marriage failed due to no fault of the wife. The law provided that there were five reasons a man could divorce his wife: i. Treason against the government; ii. She plotted against him; iii. Adultery (If there were no children, husband would keep the prenuptial donation and 1/3 of any property that wife possessed. If there were children, the prenuptial donation and property would be held for them when they became adults); iv. She bathed with strangers, or attended banquets, circuses, theaters, etc. against his wishes; or v. Wife remains away from home without husband’s knowledge or permission, unless she was visiting her parents. A wife, on the other hand, could divorce her husband for the following six reasons: i. Treason against the government; ii. He attempted to kill her or not warn her of a murder attempt by others; iii. He seeks to delivery her to another man for the purpose of committing adultery; iv. He accuses her of adultery but fails to prove her case; v. He entertained another woman in his wife’s home or he is frequently with another woman and refuses to stop after being warned by wife’s kinsmen; or vi. Husband is convicted of adultery (If there are children, wife retains prenuptial donation as alimony and gets portion to husband’s property to preserve for ownership of their children. If there are no children, portion of husband’s property to wife and portion of husband’s property to the government).
In the United States, modern alimony traces its roots back to feudal times in England where title and control of a woman’s property vested with her husband upon their marriage. In exchange for taking and controlling her property, the husband became responsible for support the wife for the rest of her life. This obligation to provide support continued even if the parties divorced, unless the divorce was the fault of the wife. If the wife’s bad conduct or infidelity was the cause of the divorce, the wife would not be entitled to support from the husband. Over time, the law evolved to require the wife to prove that husband’s misconduct or infidelity was the cause of the divorce, and thus entitle her to alimony.
The law in North Carolina before 1995 reflected this common law principal: that a dependent spouse seeking alimony must prove that the supporting spouse, whether husband or wife, committed marital fault before a court could consider their request for financial support. Additionally, then, regardless of whether the supporting spouse cheated, infidelity on behalf of the dependent spouse, before or after the date of separation, was a complete bar to receiving support.
The current spousal support laws of postseparation support (temporary alimony) and alimony in North Carolina were enacted in 1995. The current laws have diminished the role of marital fault in spousal support and focus more on economic need. Postseparation support is support that a dependent spouse is entitled to if the court determines that the dependent spouse’s resources are not adequate to meet his or her reasonable needs, and the support spouse has the ability to pay. While a court may consider marital misconduct in making a determination of postseparation support, the impact of any marital misconduct on a potential postseparation support award is within the discretion of the judge. Infidelity, for example, does not automatically serve as a bar for a dependent spouse seeking postseparation support; rather it is a factor for a judge to consider in determining whether to grant an award of postseparation support. An award of postseparation support will continue until: i. the date specified in the postseparation support order; ii. the entry of an order awarding or denying alimony; iii. the dismissal of an alimony claim; iv. the entry of a judgment of absolute divorce if no claim of alimony is pending at the time the judgment of absolute divorce is entered; or v. modification of an order for postseparation support. It is important to understand that postseparation support is primarily designed to function as a means of securing temporary support for a dependent spouse in an expedited manner.
The current alimony laws in North Carolina replaced a fault-based approach in making an award of alimony with a needs-based approach. With the exception of illicit sexual behavior, marital misconduct is one of many factors a judge may consider in determining whether alimony should be awarded, the amount of alimony, and the duration of the alimony award. As mentioned above, fault does control an award of alimony when there has been illicit sexual behavior. North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual crimes voluntarily engaged in by a spouse with someone other than the other spouse. In at least one case, by way of example, penetration of a vagina by a finger was determined to be an act of illicit sexual behavior. See Romulus v. Romulus, 215 N.C. App. 495 (2011).
Illicit sexual behavior impacts alimony in North Carolina as follows:
Thus while the law is shifting away from fault in determining alimony, in North Carolina, illicit sexual behavior may serve as a bar or guarantee of an award of alimony. If you need to speak with an experienced spousal support attorney, contact Adkins Law to arrange a consultation.
In North Carolina, infidelity is one of the nine acts of marital misconduct defined under N.C.G.S. § 50-16.1A listed as “illicit sexual behavior.” North Carolina defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4) [criminal sexual offenses], voluntarily engaged in by a spouse with someone other than the other spouse.”
What effect does cheating have on my marriage and separation? Cheating may serve to either guarantee or bar alimony for a spouse. In North Carolina, to have a claim for alimony, there must be a dependent / supporting relationship. This means that one spouse must be a dependent spouse, meaning they are “…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 spouse.” The other spouse must be a supporting spouse, meaning they are “... a spouse, whether husband or wife, 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.”
Without a dependent / supporting relationship, a court cannot make an award of alimony. The burden of proving dependency is on the spouse asserting the claim for alimony. It is important to note that even if a spouse is dependent, that dependent spouse is not entitled to an award of alimony if the other spouse does not have the ability to pay. A dependent wife, for example, would likely not be entitled to an award of alimony from a husband in bankruptcy whom does not have the ability to pay any amount of alimony at the time of the alimony hearing. See Bodie v. Bodie, 221 N.C. App. 29, 727 S.E. 2d 11 (2012).
A finding of adultery on behalf of a party asserting a claim for alimony renders a dependency determination moot. Thus, a dependent spouse who has cheated is barred from receiving alimony; the court will not make a determination of whether the spouse is actually dependent.
An actually substantially dependent spouse means that the spouse seeking an award of alimony must actually be dependent upon the other spouse to maintain the standard of living to which that spouse became accustomed to during the last several years before separation. The spouse must actually be unable to maintain the accustomed standard of living from his or her own means.
Examples of cases where a spouse has not been found to be dependent:
Examples of cases where a spouse has been found to be dependent:
The Supreme Court in North Carolina has held, however, that just because one spouse is dependent, it does not automatically mean that the other spouse is support. See Williams. Also see Barrett v. Barrett, 140 N.C. App. 369, 536 S.E. 2d 642 (2000). A surplus of income over expenses is sufficient in and of itself to warrant a determination that a spouse is supporting. See Bodie.
If a supporting spouse is determined to have cheated, the marital misconduct must have occurred during the marriage and prior to the date of separation. A court may consider incidents of post-separation marital misconduct only to the extent that it may corroborate evidence supporting other evidence that the marital misconduct occurred during the period of marriage and before the date of separation. The date of separation is the date that the parties actually began to live separate and apart with the intention of at least one party that the physical separation be permanent. See Romulus v. Romulus, 215 N.C. App. 495, 715 S.E. 2d 308 (2011). Parties must not only physically separate with the intent of at least one party to remain separate and apart, they must physically separate in a manner that indicates the cessation of cohabitation. A husband, for example, that came and went during the period of separation but continued to receive mail and maintain belongings at the marital residence and that, while he occasionally slept at his office, he returned home to do chores and take the children to activities was determined to not have separated from his wife. The parties were determined to not have legally separated. See Romulus.
What counts as an act of illicit sexual behavior? As stated above, North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined by N.C.G.S. § 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse. In determining whether to award alimony, any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
A spouse can prove that the other spouse engaged in illicit sexual behavior in a number of ways. Admission on behalf of the offending party is a very common manner of establishing proof. The term “sexual relations”, however, is not part of the statutory definition for illicit sexual behavior. In one North Carolina case, an admission by one spouse to the other spouse that he engaged in sexual relations did not establish illicit sexual behavior. See Romulus.
To establish adultery, a party must show that the offending party had both the opportunity and inclination to engage in sexual intercourse. Wallace v. Wallace, 70 N.C. App. 458, 319 S.E. 2d 680 (1984). This means that without direct proof, a party may establish that sexual intercourse occurred by showing that they wanted to engage in sexual intercourse with another party, and had the actual opportunity to do so. An example would be a spouse who has sent text messages and made phone calls with another party, and has been observed inside the other party’s residence for a period of time. There may not be direct evidence, pictures or video of the sexual intercourse, but circumstantial evidence would show that they had the opportunity and inclination to engaged in sexual intercourse.
What does this mean? In a nutshell, to have a claim for alimony, there must be a dependent / supporting relationship. One party must make substantially more income than the other party and the dependent party must rely on that income to maintain their lifestyle. If the dependent party has had an affair, they are barred from alimony; if a supporting party has had an affair, the dependent party is essentially guaranteed alimony; and if both parties have cheated, it is in the discretion of the court as to whether any award of alimony will be granted.
If you need to speak with a family law attorney regarding spousal support and alimony, please contact Adkins Law to arrange a consultation.
A Prenup also known as a prenuptial agreement is a written contract created by a (sometimes engaged) couple before they are set to be married. The contract typically outlines all of the property owned by each person; this can include cars, stock accounts, bank accounts, etc.. All items are specified in the written contract so that each person can determine what is to happen to that property, if the marriage were to ever end with divorce.
North Carolina has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA allows parties to contract with respect to:
1. Division of Property - the division of property during marriage and upon divorce.
2. Alimony - Alimony and the waiver of alimony. Waiver of alimony agreements will be upheld unless doing so will cause the disadvantaged spouse to be eligible for public assistance.
3. Child Support - Child support arrangements will be upheld as long as they provide for the reasonable needs of the child(ren).
There are some people that believe the rich and famous are the only ones to create prenups BUT this is not true. Prenups are merely used to protect the assets of each individual, avoid conflict in the event of divorce, avoid your significant others debts, as well as clarify finances with your significant other. Without a prenup the property is split as martial property in a divorce judgement.
If you are thinking about creating a prenup with you and your significant other we can help to draft the document for you. Keep in mind that an attorney is not needed to create a valid pre-marital agreement. Failing to hire a family law attorney may, however, affect whether the agreement is fair. An agreement that is not fair will probably not be valid.
Adkins Law is able to provide you with advice and assistance with the creation and validity of a prenup and pre-marital agreement. Contact us today to schedule your meeting with an attorney.
North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
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Depending on the ruling of the court, an alimony order can be for a set number of years or even life. In order to modify spousal support, whether that be alimony or post-separation support, significant changes are normally necessary. The termination of an alimony order is automatic upon the death of either party, remarriage of the dependent spouse, or cohabitation by the dependent spouse. That being said, what determines cohabitation in North Carolina?
According to North Carolina state law, cohabitation requires:
It is important to take notice that, although the court requires two people to essentially be living together in order to terminate an alimony order, that does not mean that they must be retaining the same residence. The dependent spouse and third party may each retain a separate residence and still be considered living together.
The second criteria the court will look to is whether the dependent and third party act like a married couple. There are numerous facts considered by the North Carolina courts. There is no one item that is required or determinative.
Some factors considered in determining cohabitation:
Although cohabitation is defined by statute, it is often a source of litigation in court. Seeing as the dependent receiving alimony has an incentive to alter behavior to avoid losing their monthly check, these types of cases may get a bit grey at times. This may include keeping a separate residence, limiting the nights spent together per week, not keeping their belongings at the other party’s place, not getting engaged, etc. This behavior can make it quite frustrating for the person ordered to pay. Often, testimony from a private investigator, phone records, and bank records help to establish cohabitation.
Domestic violence is far more common than we know. It is a problem that affects people regardless of race, gender, sexuality or socioeconomic status. If you or someone you love is being abused, it is important to come forward to seek help.
What is Domestic Violence?
Domestic violence is causing, or attempting to cause, bodily injury to the victim. It can also be placing the victim in fear of imminent, serious bodily injury. This may include continued harassment if it causes severe emotional distress.
It is important to remember that domestic violence can only occur between people who have a current or former relationship. This includes spouses, household members, parent/ child or boyfriend/ girlfriend.
What to do if you are a victim of domestic violence?
Your safety is the biggest priority—get yourself to safety and call 911. If you do not have a safe place, you can seek help at a shelter.
From there, you have the option of seeking a restraining order and/ or filing criminal charges. Criminal charges are recommended because the criminal system has some procedures in place that the civil system does not, like probation and violent offender programs. If the abuser is found guilty at trial, then the terms and conditions of his or her sentence depend on various factors including what crimes the abuser has committed against you and prior offenses
How does domestic violence effect custody and child support?
It is rare for those issues to be handled in the civil domestic violence process of getting a restraining order. Many judges prefer that issues of child support and custody be handled in a separate action. You will need to file a separate complaint seeking custody and child support.
What about alimony and property division?
The judge in your domestic violence can only deal with these issues on a very limited basis, such as addressing temporary distribution of vehicles and the home. Many judges prefer that these issues be handled in a separate action. You will need to file a separate complaint alimony and equitable division.
Domestic violence proceedings can be confusing and time consuming, especially when dealing with other family law issues. Contact Adkins Law today to set up a consultation and decide your next steps.
Undeniably, many families in the US experience serious domestic problems that often necessitate legal interventions. Just like other states of the US, North Carolina (NC) too has its unique laws, under the North Carolina General Statutes (NCGS), that govern all the family matters and that are applicable across its respective regions including Mecklenburg County and all the regions within such counties such as Cornelius, Davidson, and Huntersville in Mecklenburg County. As such, it is crucial for all persons residing within NC, particularly in Mecklenburg County to know the fundamentals of family law in NC likely to affect them such as separation and divorce, alimony, child support, and child custody.
Noteworthy, separation and divorce (NCGS § 50) are two different concepts under North Carolina’s family law statutes. A legal separation does not end one’s marriage. Instead, a legal separation lets the parties remain married but live separately. Marital misconduct may come into play here if a party wants to file an action for a forced legal separation. However, for an action for a forced legal separation (divorce from bed and board) to succeed, the complainant must provide evidence establishing that the spouse was at fault including cruelty, adultery, and indignities, etc.
Significantly, although one can legally separate at whatever time, the parties must have been physically separated for a minimum period of one (1) year to succeed in a no-fault divorce. As such, one must meet the legal definition of “separation” to file a divorce case. Merely living in different rooms of the same house or living in separate houses but maintaining the appearance of a relationship does not qualify as a legal separation under the state’s law. If the couple reconciles, the separation period terminates. Additionally, another option other than separation exists, though rarely pursued. Here, the law allows a partner to file for divorce after being lawfully separated for three (3) years and believes that the other partner suffers from untreatable lunacy.
Alimony, child support, and child custody are also NC family law issues. According to NCGS § 50-16.3A, alimony is the act of paying for the upkeep and maintenance of a partner, either through a lump-sum or on an ongoing basis provided by the supporting spouse to the dependent spouse. In Mecklenburg County, forinstance, the general rule is that a dependent spouse is the one earning less income, though the NCGS contains sixteen factors (NCGS § 50-16.3A) that guide the court in making such a determination. When it comes to child custody in NC, the most common reference usually made is “the best interest of the child.” Here, the judge (not a jury) hears the evidence presented before the court and decides how the parents, either jointly or individually, will share time with the children and make decisions impacting the lives of the children.
Often, the court appoints joint physical custody of the children to the parents. Sometimes the court will award one parent as having main physical custody while the other having ancillary physical custody accompanied with a visitation schedule. One parent is usually ordered to pay the other parent child support. Such support is usually assessed using the North Carolina Child Support Guidelines, especially if the combined yearly income of the two prior to taxation amounts to $300,00.00 or less (though also dependent on the custodial schedule), and such a support lasts until the child turns 18 years and graduates high school, or the child is lawfully emancipated. If you need to speak with an experienced family law attorney, contact Adkins Law.