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.
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.
Filing for bankruptcy in order to avoid alimony is not always the best idea. An obligation to pay spousal support, also considered a domestic support obligation, is almost always not dischargeable. The general rule is that a debt for spousal support, or alimony, cannot be cancelled or forgiven.
What is Alimony?
Alimony is spousal support after a divorce ends a marriage. The support provided through alimony, from one former spouse to the other, is usually temporary. Alimony is often arranged when a marriage involved one spouse making majority or all of the income, while the other spouse took care of the home. The “stay at home” spouse is often the recipient of alimony in a divorce.
Changing Alimony During Bankruptcy
Getting alimony payments adjusted or discharged through bankruptcy is often a daunting undertaking. The supporting spouse should list the supported spouse as a creditor. While it is difficult for alimony to be discharged, there are still a few ways alimony can be changed. If the alimony and the supported spouse are not listed on the bankruptcy petition, alimony discharge becomes nearly impossible. Debt that is not listed in a bankruptcy petition cannot be discharged in bankruptcy court.
Although alimony cannot usually be discharged in bankruptcy, there are two exceptions to this rule.
The first instance that alimony can be discharged in bankruptcy is when the payment of debt is falsely named as being alimony. If a divorce decree states that an obligation to a spouse is alimony, but the obligation is not actually alimony, then the obligation has the potential to be discharged in bankruptcy.
The second instance that alimony could be discharged is if the obligation of debt has been turned over to a third party. For example, two people get divorced and one is obligated to pay the other a certain amount per month. The person in charge of making the payments stop, therefore, the individual relying on those payments must get them from a third party. That third party now owns the right to collect the alimony from the original spouse in charge of the payments. If the spouse in charge of paying alimony files bankruptcy, the alimony obligation can be discharged to the extent it has been legally transferred to the third party.
Bankruptcy can have a huge impact on one’s ability to pay alimony. A major factor the court utilizes in order to determine spousal support payments is the supporting spouse’s ability to pay – considering their earning capacity, actual income, assets, and standard of living.
Commonality of Modifying Alimony
After a court grants alimony (either temporary or permanent), it may later be modified by the court or terminated completely depending on the circumstance. There must be a substantial change in circumstances in order for court to modify an existing agreement. Courts have wide discretion in how they define situations that constitute a substantial change in circumstances to warrant a change in alimony. It is not common for a court to modify an existing alimony award. North Carolina submits to the partnership theory of marriage, where both partners have an equal obligation to provide financial support to each other during marriage. This theory extends to post-separation spousal support.
Spousal Support: Payor and Recipient
During the process of modifying alimony agreements, an individual is either the payor or the recipient of spousal support. These roles are determined objectively depending on which partner was financially superior in the marriage. The payor is typically the partner who will be giving money to the recipient or dependent partner. The amount of spousal support depends specific factors, such factors include: the duration of the marriage, the role of each spouse, and the age of the partners.
Modification of Spousal Support
Either party has the ability to initiate modification of an award. The party who moves for a modification of alimony has the responsibility of showing a substantial change in circumstances that warrant change in spousal support. Typically, the party will either move for either upward modification or downward modification.