Q: How does the Court Define Alimony, Post-Separation Support, Dependent and Supporting Spouse and Marital Misconduct?
A: Pursuant to § 50-16.1A of the North Carolina General Statutes, as it relates to post-separation support and/or alimony the following definitions apply:
1. “Alimony” is defined as an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
2. “Post-separation support” is defined as spousal support that is after the parties separate until the earlier of any of the following occurs:
a. The date specified in the order for post-separation support.
b. The entry of an order awarding or denying alimony.
c. The dismissal of the alimony claim.
d. The entry of a judgment of absolute divorce if no claim of alimony pending at the time of entry of the judgment of absolute divorce.
e. Termination of post-separation support because the dependent spouse remarries or engages in cohabitation, or upon the death of either the supporting or the dependent spouse.
3. “Dependent spouse” is defined as a a spouse, whether husband or wife, who is 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.
4. “Supporting spouse” is defined as 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.
5. “Marital misconduct” is defined as any of the following acts that occur during the marriage and prior to or on the date the parties separate:
a. Acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts voluntarily engaged in by a spouse with someone other than the other spouse; Involuntary separation of the spouses because of a criminal act committed prior to the proceeding in which alimony is sought;
b. Abandonment of the other spouse;
c. Malicious turning out-of-doors of the other spouse;
d. Cruel or barbarous treatment that endangers the life of the other spouse;
e. Indignities that renders the other spouse’s condition intolerable and life burdensome;
f. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
g. Excessive use of alcohol or drugs so as to render the other spouse’s condition intolerable and life burdensome;
h. Willful failure to provide necessary subsistence according to one’s means and condition so as to render the other spouse’s condition intolerable and life burdensome.
Q: What Types of Civil Actions May post-separate Support Ordered?
A: Post-separation support may be ordered in the following actions: absolute divorce, divorce from bed and board, annulment, or for alimony without divorce. However, a claim for post-separation support or alimony must be pending at the time of the entry of the judgment of divorce if post-separation support is ordered at the time of the entry of a judgment of absolute divorce.
Q: Who is Entitled to Post-Separation Support/Alimony?
A: The court will base a post-separation support/alimony award on the dependent spouse’s reasonable financial needs and the supporting spouse’s ability to pay post-separation support.
Q: What Are Some Factors That the Court Considers When Determining Post-Separation Support?
A: The court considers all relevant factors when determining post-separtion support including: the parties’ accustomed standard of living, their present employment income; any other recurring earnings of each party from any source; their income-earning abilities; their debt obligations; the expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons. The court will also consider the parties’ marital misconduct that occurred prior to the parties’ separating from each other.
Q: What Are Some Factors That the Court Considers When Determining Alimony?
A: Alimony will be awarded if it is determined that one spouse is dependent on the other spouse and the other spouse is the supporting spouse. And that the alimony award is fair after considering all relevant factors. The factors to be considered include: the marital misconduct of either of the spouses; the relative earnings and earning capacities of the spouses; the ages and the physical, mental, and emotional conditions of the spouses; the amount and sources of earned and unearned income of both spouses, the duration of the marriage; the contribution by one spouse to the education, training, or increased earning power of the other spouse; the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child; the standard of living of the spouses established during the marriage; the relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs; the relative assets and liabilities of the spouses and the relative debt service requirements of the spouses; the property brought to the marriage by either spouse; the contribution of a spouse as homemaker; the relative needs of the spouses; the federal, State, and local tax ramifications of the alimony award; and any other factor relating to the economic circumstances of the parties that the court determines is just and proper.
Notably, if the court determines that the dependent spouse engaged in illicit sexual behavior with someone other than the other spouse during the marriage and prior to the date they separated the dependent spouse is not entitled to alimony. On the other hand, if the court determines that the supporting spouse engaged in illicit sexual behavior with someone other than the other spouse during the marriage and prior to or on the date they separated then the court will order the supporting spouse to pay alimony to a dependent spouse. However, the court will not consider any illicit sexual behavior engaged in by either party that the other spouse approved of.
Q: Can I Have My Alimony Claim Decided by a Jury?
A: Yes and No. If marital misconduct is alleged in a claim for alimony, either spouse may request a jury trial to decide the marital misconduct issue. If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct.
Q: If I File an Action for Post-Separation Support/Alimony, Can I Ask for My Spouse to Pay My Attorney’s Fees?
A: Yes. A dependent spouse who is entitled to post-separation support and/or alimony may be granted an award of reasonable attorney’s fees based upon the court’s discretion. However, attorney’s fees may be barred by an express provision of a valid separation agreement or premarital agreement so long as the agreement is performed.
Q: I lost My Job and Can’t Afford to Pay Alimony. Can I Modify the Order?
A: It Depends. A post-separation support or alimony order may be modified or vacated at any time, upon a showing of changed circumstances by either party or any interested party. Such an award may be terminated if a court determines that the dependent spouse remarries, engages in cohabitation; or upon the death of either the supporting or the dependent spouse.
Q: Can the Court Give Me a Parcel of Real Estate of the Marriage as Payment of Alimony?
A: Yes. The court may award alimony to the dependent spouse by assigning real estate as payment. The court also has the authority to issue a writ of possession to effectuate the transfer.