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.
When does child support terminate in Mecklenburg County? Child support terminates in North Carolina when a child reaches eighteen years of age, except:
1. It stops sooner if the child is emancipated.
2. If a child is still in high school when the child reaches eighteen, child support payments continue until the child graduates, ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age twenty, whichever comes first, unless the Court, in it’s discretion, orders that child support payments at age eighteen or prior to high school graduation.
If you have questions regarding child support or the termination of child support in Mecklenburg County, contact Adkins Law. We are located in Huntersville NC and serve the greater Charlotte area.
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.
North Carolina state law requires that child support be determined by a formula through the North Carolina Child Support Guidelines. These guidelines assume that the child should receive a proportional amount of each parent’s monthly income as if they lived together. Thee guidelines are intended to meet the needs of the children, while remaining fair to both parties.
Child support orders specify the amount of money that a non-custodial parent must pay. The formula used to calculate the amount of support necessary involves two steps.
These guidelines also consider other biological children each party may have, as well as child care costs and medical insurance costs for the child(ren) in the order.
You should also know that:
How does the process work?
The non-custodial parents are served with a Civil Summons and Complaint. They can respond to these documents in one of the following ways:
If the non-custodial parent does not respond or appear in court, the court will accept the information contained in the Complaint to Establish Support as true and will issue an order to pay child support based on that information.
It is always easier for everyone if both parties work together to establish a child support order. By reaching an agreement that is based on the North Carolina Child Support Guidelines, a court hearing is not required.
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.