Practice Areas

Spousal support

Spousal support is financial support paid by the supporting spouse to the dependent spouse in order to help meet the dependent spouse’s reasonable and necessary expenses. There are two types of spousal support in North Carolina—postseparation support, or “temporary support,” and alimony, which is often ordered for a longer duration.

What is postseparation support? North Carolina General Statute 50-16.1A(4) define “postseparation support” as spousal support to be paid until the earlier of any of the following:

a. The date specified in the order for postseparation 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 is pending at the time of entry of the judgment of absolute divorce.
e. Termination of postseparation support as provided in G.S. 50-16.9(b).

Postseparation support may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce. However, if postseparation support is ordered at the time of the entry of a judgment of absolute divorce, a claim for alimony must be pending at the time of the entry of the judgment of divorce.

What is alimony? In North Carolina “alimony” is defined as “an order for payment for the support and maintenance of a spouse or former spouse, periodically (like monthly payments) 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.

Who is a dependent spouse? A dependent spouse is 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.

Who is a supporting spouse? A supporting spouse is 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.

Is a spouse’s marital misconduct relevant to determining postseparation support? Yes, if raised by the supporting spouse. The statute provides that at a hearing on postseparation support, the judge will consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.

Is a spouse’s marital misconduct relevant to determining alimony? Yes. The court has the discretion in determining the amount, duration, and manner of payment of alimony. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including the marital misconduct of either of the spouses.

What does the court consider to be “marital misconduct’? “Marital misconduct” means any of the following acts that occur during the marriage and prior to or on the date of separation:
a. Illicit sexual behavior (including sexual intercourse, oral sex or other deviate sexual acts) voluntarily engaged in by a spouse with someone other than the other spouse;
b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
c. Abandonment of the other spouse;
d. Malicious turning out-of-doors of the other spouse;
e. Cruel or barbarous treatment endangering the life of the other spouse;
f. Indignities rendering the condition of the other spouse intolerable and life burdensome;
g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
i. Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.

The court generally only considers acts of marital misconduct that occur after the date of separation if the action corroborates evidence of misconduct by a party prior to the date of separation.

How is postseparation support determined? In ordering postseparation support, the court is to base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.

How long is postseparation support awarded? Typically, postseparation support is paid until the earlier of either the date specified in the judge’s order for postseparation support (which is typically a short term, like twelve months), the entry of an order awarding or denying alimony, the dismissal of the alimony claim, or the entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment of absolute divorce.

When do I file a claim for alimony? It is important that you and your spouse deal with the spousal support claims prior to obtaining a divorce. If you and your spouse have not resolved these claims, then you need to assert a claim for alimony in the courts prior to an entry of a divorce judgment. Otherwise, your right to alimony is forever waived. Some people have tried to handle their divorce without an attorney and have thought they could resolve the spousal support issues later and have been greatly disappointed when they have learned that their claim is gone forever.

When is a spouse entitled to alimony? A spouse is entitled to alimony if the court finds that the spouse is a dependent spouse, the other spouse is a supporting spouse, and that after consideration of all relevant factors, an award of alimony would be equitable.

What factors does the court consider in determining whether an award of alimony would be equitable?
(1) The marital misconduct of either of the spouses.
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) 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;
(8) The standard of living of the spouses established during the marriage;
(9) 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;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property.

How is the amount and duration of alimony determined? Are there alimony guidelines? No. Some states have adopted spousal support guidelines that calculate the amount of support and the length of the award based on an income formula and the length of the marriage. North Carolina has not adopted any guidelines. In North Carolina, the court exercises its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors. Although your attorney should be able to estimate a range of reasonable support, if your alimony claim or your spouse’s alimony claim is litigated, the amount and duration of an alimony award will largely depend on the judge who decides your case. Judges have great discretion in determining the amount and duration of an alimony award. In determining the amount of the award, the judge will consider the dependent spouse’s reasonable needs and expenses and the supporting party’s ability to pay. It is critical for both parties to have accurate and detailed information regarding their income and expenses on a financial affidavit.

I am the dependent spouse, what information will I need to gather in order to prove my reasonable and necessary expenses? You will need to have supporting documentation backing up the figures you have listed on your financial affidavit. Quickbooks or other expense tracking software programs or applications like Mint.com; Home Budget, YNAB or Good Budget are indispensable for providing realistic and accurate records of a party’s expenses. In some cases, if a spouse does not maintain accurate or complete records or if the case is complicated, it may be more cost effective for a dependent spouse to pay a bookkeeper, accountant or a certified divorce financial analyst to assist the dependent spouse is determining his/her reasonable necessary expenses to determine cash flow needs.

Does a judge or a jury decide alimony cases? The judge will decide the amount and duration of an alimony award. However, you do have the right to have a jury decide whether one spouse has committed marital misconduct, but this is extremely rare. The overwhelming majority of family law cases that go to court are decided solely by a judge.

The answers here focus on what “the judge will do”. I don’t want to go to court. Does a judge always have to make the decision or can my spouse and I agree to an amount and duration of alimony outside of court? The answers focus on the what the law provides for alimony. Judges rely on the law when determining spousal support. However, you and your spouse do not have to go to court to settle spousal support issues. In fact, having a judge decide these issues should be your last option if settlement cannot be reached outside of court. Court is expensive, time-consuming and the outcomes unpredictable. Parties can agree to the amount and duration of spousal support and can negotiate various agreements on how spousal support will be paid in a consent order or in a contract (i.e., a Separation Agreement). If the parties agree to alimony in a consent order, the judge will review and sign the order, and the consent order will be an enforceable court order. If either party fails to comply with its provisions, that party may be subject to contempt. Additionally, spousal support in a consent order may be subject to modification upon a substantial change in either party’s circumstances in the future. If the parties’ support agreement is pursuant to a contract like a separation agreement, then it is possible that the support provisions may not be modifiable. In addition to negotiations, parties can still resolve their dispute outside of court through other cost-effective alternative dispute resolution methods such as mediation, arbitration or collaborative law. Litigation can be VERY expensive, that is why we encourage clients to use alternative dispute resolution methods to resolve their matters if at all possible.

How is spousal support paid? Alimony or postseparation support can be paid by lump sum payment, periodic payments, income withholding, or by transfer of title or possession of personal property, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of lump-sum payments of alimony or postseparation support or in payment of arrearages of alimony or postseparation support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. The court may also require the supporting spouse to secure the payment of alimony or postseparation support by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due. In most cases, spousal support will be paid by monthly installments over a period of time.

What are the tax consequences of spousal support? If certain requirements are met, then postseparation support or alimony is included as income to the dependent spouse and tax deductible by the supporting spouse. However, the Internal Revenue Code also provides that parties can agree that spousal support will not be taxable to the dependent spouse or tax deductible to the supporting spouse. If you are the dependent spouse, it is very important that your attorney consider the tax implications of a spousal support award. If you need $2,000 in alimony in order to meet your reasonable monthly needs, and your spouse pays you $2,000, then you will not “net” $2,000 to use for your expenses because you will have to pay income taxes on the support award. Therefore, depending on the tax implications, you might really need $2,500 or more per month in order to net $2,000 for your expenses. It is also important to understand the tax benefits of paying alimony if you are a supporting spouse. A $2,000 alimony award will not cost the supporting spouse $2,000 in real after-tax dollars because of the deduction.

When does spousal support end? Alimony and/or postseparation support terminate upon the date specified in the court order, the death of either the supporting or the dependent spouse, or the remarriage or cohabitation of the dependent spouse, whichever occurs first. Additionally, postseparation support will also terminate upon the earlier of either the entry of an order awarding or denying alimony, the dismissal of the alimony claim by the court, or the entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment.

My husband has supported me our entire marriage. If alimony ends when he dies, how will I support myself? While the court may not have the authority to order that the supporting spouse to insure his spousal support obligation with life insurance, it is important that the dependent spouse consider life insurance as security for spousal support when negotiating a spousal support award.

Our marriage broke up because my wife had an affair, do I still have to pay her alimony? If the court finds that the dependent spouse participated in an act of illicit sexual behavior, such as sexual intercourse or other deviant sexual acts, with someone other than his/her spouse during the marriage and prior to or on the date of separation, and the supporting spouse has not engaged in illicit sexual behavior during the marriage and prior to the date of separation with someone other than his/her spouse, then the court shall not award alimony to the dependent spouse. If the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, and the dependent spouse ahs not, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.

I had an affair ten years ago, I told my spouse about it, we went to counseling, and my spouse forgave me for it. Now that we are separating, my spouse says that I will have to pay her alimony because of that long-ago affair. Is that true? Any act of illicit sexual behavior by either party that has been condoned, or forgiven, by the other party shall not be considered by the court in awarding alimony. So, in this example, the paying spouse would raise the defense of “condonation” if his spouse seeks alimony from him.

My wife says that the judge will order me to pay her attorney’s fees for her alimony claim. That’s not true, is it? At any time that a dependent spouse would be entitled to postseparation support or alimony, the court may (not shall) enter an order for reasonable counsel fees for the benefit of such spouse if the dependent spouse is without sufficient means to subsist during the prosecution of the claim and doesn’t have the means to pay attorney’s fees. It is very important that a supporting spouse provide sufficient support to the dependent spouse otherwise it is more likely that a judge will order attorney’s fees.

Are the attorney’s fees that I incur in establishing or collecting postseparation support or alimony from my spouse tax deductible? The dependent spouse may be able to deduct the attorney’s fees he or she incurs in establishing or collecting spousal support. It is important to consult your tax advisor regarding what deductions are permissible.

Determining spousal support can be a complicated matter. There are a multiple of factors that can come into play, and it is important to seek the advice of a family law attorney when confronting these issues.

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