North Carolina Alimony FAQ’s
- What do the terms supporting spouse and dependent spouse mean?
- What is post separation support?
- What do the courts look at in determining post separation support?
- When does post separation support end?
- What is alimony?
- What factors do the courts look at to determine alimony?
- Who determines alimony, a judge or a jury?
- What is marital misconduct?
- What is the standard alimony payment?
- What part does martial fault play in an alimony case?
- If the dependent spouse engaged in illicit sexual behavior, can they still receive alimony?
- Can my spouse get out of paying alimony by quitting his job?
- Can alimony ever be terminated?
- Can alimony be modified?
- What tax ramifications are there with alimony?
Typically, a spouse is determined to be “dependent” when he or she makes less money that the other spouse. Many courts look at whether the spouse is substantially dependent upon the others income for maintenance and support.
The supporting spouse is the one who is capable of providing support. The courts will look at the reasonable monthly needs of the supporting spouse to determine how much money is left over for alimony payments.
Post separation support is obtained before going to court for alimony. This is meant to help the dependent spouse meet their reasonable needs. In order to get the support, the spouse must show that they have insufficient funds to meet their reasonable needs. The courts also look at whether the supporting spouse has the means to pay.
Courts will review a number of factors in awarding this type of support. They look at the current standard of living of the parties, their financial needs, present employment and income of the parties, the income earning abilities of the party, the separate and martial debt obligations, the reasonable living expenses of each party, and any legal obligations of the parties to support any other individuals.
The request for post separation support must be made in a timely manner. The courts may hear cases for post separation at any time, and it does not require a full trial to make its decision. It can use affidavits, verified pleadings and other evidence on which to base its decision.
Post separation support ends when one of 5 things occurs.
The date set by the court for termination of post separation support is reached
Either the supporting spouse or dependent spouse dies
The parties choose to resume their marital relationship
The dependent spouse remarries or cohabitates with another adult in either a heterosexual or homosexual relationship
The date on which alimony is allowed or denied by the courts
Alimony refers to payments made to support and maintain a spouse. Alimony can be either a lump sum payment or paid on a continuing basis. It is made by the “supporting spouse” to the “dependent spouse”.
Alimony payments, and how long they must be paid, vary widely. In addition to money, it can also consist of transfer of title or personal property, an interest in property or possession of real property.
If you and your spouse cannot come to a settlement on the matter, you can ask the court to decide on alimony.
There are fifteen statutory factors that they will use to determine the case.
They are:
whether either spouse has engaged in illicit sexual behavior outside of the marriage
The earnings of both parties, unearned income of each party (interest, rent, dividends, etc), earning capacity for both parties and their current financial needs
The impact of either parent being a custodian of a minor child
The length of the marriage
The respective contributions of each party as a homemaker
How much either party has contributed to the others education and increased earning power
The standard of living the parties enjoyed during their marriage
The ages and physical and emotional condition of each party
The educational background of each party, and how long it would take to educate or train a spouse to be self-sufficient
The assets of each party, including other debts and obligations, whether marital or separate
The tax impact of alimony on each party
Any other economic factor that the court find relevant for consideration
A judge always determines alimony. Either party may request a jury trial to determine marital misconduct issues, but that is all a jury will decide. The judge will make the decision at to how much, if any, alimony is awarded.
Previously called “fault grounds”, martial misconduct is one of the factors used to determine alimony in North Carolina. Marital misconduct includes:
Cruel and barbarous treatment endangering a spouse’s life
Abandonment
Alcohol/drug abuse
Malicious turning out of doors
Personal indignities that render one’s life intolerable and burdensome
Willful failure to support
Illicit sexual acts
Reckless spending or waste of assets
Alimony varies widely. It is at the sole discretion of the judge. There are no clear guidelines as to the amount of alimony paid. Typically a judge will look at the dependent spouses reasonable needs, and how much of a deficit there is to meet them. They will then determine the reasonable needs of the supporting spouse and how much excess is available each month.
It can be an important part of the case. If the dependent spouse has been found to have engaged in these acts, then alimony is not required to be paid. If, however, the supporting spouse is also guilty of participating in sexual acts outside the marriage, then the court can award alimony. If only the supporting spouse is found to have committed marital fault, then the court is required to award alimony.
Yes, if the supporting spouse also engaged in illicit acts. If the dependent spouse was the only one found to have engaged in such acts, then they will not be awarded alimony.
Typically, the alimony payments are determined by the supporting spouse’s earnings at the time of the trial. If however, you can prove that there is a deliberate act on their part to avoid financial responsibility, a refusal to seek or secure gainful employment, an intentional act of depressing their wages, or a deliberate attempt to hurt their business or go into a new business, then a judge may look at past earnings as a gage.
Alimony orders can be for a definite or indefinite term. If it’s an indefinite term, it will be terminated if:
The parties resume their relationship
The supporting spouse or dependent spouse dies
The dependent spouse remarries or cohabitates with a sexual partner
Should the issue be decided in a separation agreement or as part of a property settlement, the parties can decide for themselves when it will terminate, provided they can come to an agreement.
Yes, provided there has been a substantial change of circumstances by either party. This means when you initially file alimony, there should be sufficient facts in the record to show the current state of circumstances, so you can compare it to the facts existing today. North Carolina courts cannot modify an alimony order put in place by another state.
Alimony is tax deductible for the “supporting spouse”, the one making payments and taxable to the “dependent spouse, the one receiving the payment.
