Alimony in North Carolina

Alimony in North Carolina

From Matrimony to Alimony: Your Guide to Spousal Support in North Carolina

What is Alimony?

Alimony is a payment for the support and maintenance of a spouse or a former spouse.  Alimony can be made in either a lump sum payment or in multiple payments over time.  Alimony can last for a specific period of time or may continue for an indefinite term.  In some cases, but not frequently, alimony can be permanent.

Types of Alimony:

Post-separation support, alimony, temporary alimony, and permanent alimony are the terms commonly used to describe the money that a supporting spouse pays a dependent spouse. Many people are often confused by these terms and often use these terms interchangeably.  Post-separation support is a temporary type of alimony and is not intended to be a permanent support.  Post-separation support is described as the money that a supporting spouse pays to the other spouse in response to an agreement between the separated parties, or in response to the order of a judge for support until a final decision on calculating alimony is made.

How do I receive alimony?

There are two ways to receive alimony.  Alimony may be determined by you and your spouse by agreement.  Alimony can also be awarded by the court through a court order. 

Important Alimony Terminology:

To better understand alimony, it is important to become familiar with a few key terms.  The first term is “supporting spouse”.  A “supporting spouse” is a spouse, whether husband or wife, whom the other spouse depends on for maintenance and support.  Should an alimony award be made, the supporting spouse is the spouse responsible for making the alimony payments.  The supporting spouse is sometimes referred to as the payor spouse.

Another important alimony term is “dependent spouse”.  A “dependent spouse” is a spouse, whether husband or wife, who is either: 1) actually substantially dependent upon the supporting spouse for his or her maintenance and support, OR 2) is substantially in need of maintenance and support from the supporting spouse.  The “or” in the preceding sentence indicates that there are two methods to establish that one spouse is a dependent spouse. 

In the first method, the court looks to determine if one spouse is actually substantially dependent on the other spouse.  Here the court is concerned with whether or not one spouse is actually dependent on the other to maintain his or her same standard of living that the spouse became accustomed to during the last few years prior to the couple’s date of separation.  The court will look to maintain marital status and may determine that a spouse is dependent if he or she is actually dependent on the other spouse to maintain the marital status.

The second method by which a court may decide that one spouse is a dependent spouse considers whether one spouse is substantially in need of maintenance and support.  This method of establishing a dependent spouse is not clearly defined.  Under this method, the court may find that a spouse is a dependent spouse if he or she will be unable to meet his or her needs in the future.  Even if a spouse is currently able to meet his or her needs presently, the court can still find that spouse to be a dependent spouse, as long as the court believes that the spouse will be unable to support his or her needs in the future.  To better understand this method, think of a scenario where a spouse has a limited supply of available funds.  In this scenario, the spouse is capable of supporting his or her current needs by virtue of his limited supply of funds.  Soon, however, the spouse will run out of funds.  At that point, he or she will be unable to meet his or her needs once the funds have been exhausted.  Under this scenario, the court may find that the spouse is a dependent spouse, even though the spouse currently has funds available.

If your alimony case proceeds to trial, the judge will decide whether or not you or your spouse is a dependent spouse.  Should an alimony award be made, the dependent spouse is the spouse who will receive the alimony payments.  For this reason, the dependent spouse is sometimes referred to as the payee spouse.  The spouse who asks for alimony payments is the one who must prove that he or she is a dependent spouse. 

Dependency is a crucial part of the alimony determination.  Only a dependent spouse is entitled to receive alimony in North Carolina.   Before the court determines that you or your spouse is dependent, the court will examine both you and your spouse’s expenses.  The court will look at your standard of living, your earnings, and your earnings capacity.  The court can also consider a number of other factors including your overall health, and any child custody arrangement between you and your spouse.  It is important to remember that just because the court determines that you are a dependent spouse, this determination alone does not mean that your spouse is automatically a supporting spouse.  Conversely, just because the court decides that you are a supporting spouse does not mean that your spouse is automatically a dependent spouse.

Does the Supporting Spouse have the Ability to Pay?

Now that we have discussed supporting and dependent spouses, another very important concept with respect to alimony remains.  That concept is called “ability to pay”.  Ability to pay is very important to court ordered alimony.  In North Carolina, a court can award alimony to a spouse if it finds that there is a supporting and dependent spouse, but only if the court determines that the supporting spouse has the ability to pay the dependent spouse.  The court will carefully review both you and your spouse’s finances.  Based on the information provided to the court, the court will decide if the supporting spouse has the ability to pay alimony.  Ability to pay also factors into out of court agreements for alimony.  Your attorney, and your spouse’s as well, will want detailed financial records for the both of you, along with a complete listing of your expenses, to determine whether or not either one of you have the ability to pay the other.

Not So Fast!  Dependent + Supporting + Ability to Pay Won’t Always = Alimony

Under N.C. General Statutes Section 50-16.3A(a), “the court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors”.  Marital misconduct is one relevant factor that, if raised, the court will always consider.  Marital misconduct does not have a specific definition under NC law.  Instead, NC lists several acts that qualify and constitute marital misconduct.  Some examples of such marital misconduct are: the adulterous acts of a spouse, abandonment of a spouse, involuntary separation from a spouse that results from the commission of a criminal act, reckless spending, waste of marital assets, cruel or malicious treatment of a spouse, excessive use of alcohol or drugs by a spouse, or failure to provide subsistence to a spouse. 

When it comes to marital misconduct, adultery can have serious impacts on court ordered alimony in North Carolina.  In North Carolina, alimony is affected differently depending on whether the adultery is committed by the supporting spouse or the dependent spouse.  For instance, if the court determines that the dependent spouse committed adultery during the marriage and before or on the date of separation, then the court is prohibited from awarding alimony to the dependent spouse unless the supporting spouse also had an affair.  If the court determines that the supporting spouse committed adultery during the marriage and before or on the date of separation, then the court must award alimony to the dependent spouse, unless the dependent spouse also had an affair.  If both spouses had affairs, then the court can consider all of the circumstances and then act in its own discretion. 

Please note, the court is prohibited from considering any adulterous act that has been condoned (forgiven, or done with permission) by the other spouse.  Here’s an example.  Suppose that A is a supporting spouse and B is a dependent spouse.  During the marriage, A has an affair with C.  A tells B about the affair, and B forgives A.  Later, A and B separate, and B files a lawsuit with the court for alimony.  B argues to the court that he is automatically entitled to alimony because he is a dependent spouse, A is a supporting spouse, and A had an affair.  Normally, B would be correct.  Under this scenario, however, B forgave A, and by doing so, condoned the affair.  The court could not base the automatic award of alimony on adultery that was condoned.

Waiver of Alimony:

Alimony and post separation support may be waived and expressly barred by an express provision in a valid premarital agreement, separation agreement, or marital contract executed by spouses who are separated and contemplating reconciliation.  Alimony will also be waived if an absolute divorce is entered with no claim for alimony filed.  In other words, if you think you are entitled to alimony, and you receive a complaint for divorce, you need to file a claim for alimony before your divorce is entered.  If your divorce order is signed and entered by a judge before either you or your spouse files for alimony, then your alimony claim is gone forever.  This happens all the time.  Don’t let it happen to you!

Summary:

            To be entitled to receive alimony, the dependent spouse must be able to show that he or she does not have adequate resources to support his or her needs and that the other spouse is financially capable of paying the alimony. However, if the supporting spouse, who has not committed marital misconduct, is able to prove that the dependent spouse is involved in uncondoned illicit sexual behavior, then alimony becomes inapplicable.  Before you decide to handle your divorce case on your own, ask yourself first if you’re sure you’re not waiving any rights to alimony by consenting to a divorce or separation agreement.   We are ready to help you make sure you’re not giving up the benefits you’re entitled to receive. Contact us to schedule a consultation so we can help you with your case.

 

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