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.
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Remarriage of a dependent spouse will terminate court-ordered alimony under North Carolina law. This applies to divorces both before and after October, 1995. However, remarriage only terminates future alimony payments. It does not excuse any overdue payments from before the remarriage. If support payments are subject to a separation agreement between the parties that has not been made part of a court order, then the terms of the agreement apply. Such an agreement may or may not include a clause that terminates support upon remarriage. If the agreement is incorporated into a court order, then it is modifiable by the court and the support obligation may be terminated on remarriage.
In North Carolina, for actions filed after October, 1995, post-separation support and alimony will also usually terminate when a dependent spouse “engages in cohabitation.” Alimony terminates when cohabitation has an economic impact on the dependent spouse. Public policy dictates that a supported spouse should not be able to avoid in bad faith the termination of alimony that would result from remarriage while engaging in a relationship that has most of the characteristics of remarriage. “Cohabitation” means continuous and habitual living together with evidence of “the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people.” A North Carolina court of appeals decision found that “cohabitation” existed when a couple had been in a monogamous relationship for ten months and slept over up to five times per week. However, a court might also (in a rare case) find cohabitation to exist when the parties did not ever spend the night together. Factors such as whether the parties maintain separate residences, and where they keep personal belongings, are factors courts can consider. The more “rights, duties, and obligations” associated with cohabitation, the more likely it is to have an economic impact on the dependent former spouse, and the more it will appear that the dependent former spouse is avoiding the formalities of marriage primarily in order to continue receiving alimony. Factors include how the members of the couple share household chores and child care duties, whether they have co-mingled their finances, how they hold themselves out to society, whether they go out in public together and attend worship services together, whether they vacation and spend holidays together, and even whether they kiss when leaving for work in the morning. However, activities such as walking the dependent party’s dog, parking in that party’s garage, moving furniture into the party’s home, carrying in groceries, spending 11 consecutive nights together, etc. were help not to support a finding of cohabitation. Whether a relationship is exclusive and monogamous is an especially important factor in determining whether cohabitation exists. Actual sexual intercourse between the dependent spouse and the new partner is not required in order for there to be cohabitation that will terminate alimony. Living with roommates or family members is not considered “cohabitation,” although this can reduce a party’s expenses and have an impact on the amount of support, as discussed above. One difficulty is that cohabitation, unlike remarriage, may not have a definite start date. At the latest, courts will date the cohabitation to the date that one party brings a motion to terminate support based on it. If you need to speak with a family law attorney concerning alimony and/or termination of alimony, contact Adkins Law. Adkins Law is located in Huntersville and primarily serves the Lake Norman area and Mecklenburg County. At Adkins Law, we believe in providing top-notch, quality legal services at affordable prices. If you need to speak with an attorney regarding a family law matter, traffic citation or issue, or for your estate planning needs, contact Adkins Law to arrange a consultation. Adkins Law has offices in Huntersville and Ballantyne for your convenience. Need assistance with a family law matter? Please contact Adkins Law to arrange a consultation with an experienced Huntersville divorce attorney. One of our Huntersville family law attorneys with arrange a family law consultation with you to discuss your options in moving forward. In North Carolina, to legally separate from your spouse, you must reside in different residences with the intent to live separate and apart from one another. The date of separation starts when one spouse moves out, and no paperwork is required to be filed to establish the legal separation. It is beneficial, if both spouses are willing, to enter into a separation agreement outlining the terms of the split. A separation agreement, also known as a separation agreement and property settlement, is a contract between spouses that determines how marital property and debt will be divided, spousal support, and also may address child custody and child support. If spouses are able to agree upon these issues amicably, this is the most cordial and cost-effective way to establish the terms of a divorce. Once you have been separated from your spouse for a year and a day, you may file for divorce, thus terminating the marital relationship. When you file for divorce, if you have executed a separation agreement, you may choose to incorporate the separation agreement into the divorce judgment, making the separation agreement a court order and enforceable by the power of contempt. You may, on the other hand, elect to not incorporate the separation agreement, keep it private, and have it remain enforceable by breach of contract. If you are considering separating from your spouse, it is important to understand your rights and the divorce process. Contact Adkins Law to arrange a consultation with a family law attorney. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area. If you need to speak with an experienced Huntersville alimony attorney, contact Adkins Law. One of our Huntersville alimony lawyer will arrange a family law consultation with you to discuss your strategies and options moving forward. |
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