Alimony, maintenance or spousal support (PSS) is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage, and that this obligation may be extended after the parties separate.
Post-Separation Support or Spousal Support
Post Separation Support is temporary and is provided to support a spouse until an alimony order is entered, an alimony claim is denied by the judge, or an ‘out of court’ agreement is reached.
In 1995, North Carolina significantly changed the laws relating to alimony actions.
To help you better understand we have provided definitions pertaining to alimony:
Supporting Spouse: The spouse upon whom the other spouse is actually substantially dependent for financial maintenance and support or from whom such spouse is substantially in need of financial maintenance and support.
The key word, “substantially” is defined: this is typically the primary provider for the family with the highest income earned.
Dependent Spouse: The spouse who is actually substantially dependent on the other spouse for support and maintenance. A judge will determine how ‘substantially dependent’ a spouse might be depending on their income earnings or potential to earn income along with other financial factors such as inheritance, trusts, pension and retirement plans etc.
For a court to award either Post Separation Support or Alimony the court must find there is a actually a ‘supporting spouse’ and a ‘dependent spouse.’ The Judge must also find that the dependent spouse’s financial resources are simply not enough to meet his/her reasonable monthly needs and personal living expenses, and that the supporting spouse has the ability to pay Post Separation Support or Alimony.
It is very possible that the court WILL NOT find there a supporting spouse and dependent spouse; in such a case alimony is simply not awarded.
A finding of dependency is not required in an order for payment of alimony entered by consent of both spouses.
Alimony can be paid as a one-time lump sum or payments over time (monthly payments). The terms of alimony payments are issues resolved between the parties with their family law attorneys or by the Court.
North Carolina law provides guidance for judges to determine alimony claims. The factors the Court considers may be:
- Relative earnings and earning capacities of each spouse;
- Ages and the physical, mental and emotional health of the spouses;
- Length of the marriage;
- Standard of living established during the marriage;
- Relative needs of the spouses;
- Contribution of a spouse as homemaker;
- Each party’s education and the time needed to educate or train a spouse to become self-sufficient;
- The financial impact of either parent being custodian of a minor child;
- The amount and sources of earned and unearned income of both spouses, such as, earnings, dividends, medical benefits, retirement accounts, insurance, social security;
- The marital misconduct of either of the spouses through the date of separation;
- How each party has contributed to each other’s education and increased earning power;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The federal, state, and local tax ramifications of the alimony award; and
- Any other factor relating to the economic circumstances that the court finds to be just and proper.
Marital Misconduct and Alimony
Marital misconduct as defined by statute, means any of the following acts committed by either of the spouses during the marriage and before or on the date of separation:
- Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- Illicit sexual behavior;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
- 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.
- Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
- Indignities rendering the condition of the other spouse intolerable and life burdensome;
These can be considered to either support the award of post separation support or alimony if the marital misconduct was committed by the supporting spouse, or to deny or reduce the amount of post separation support or alimony that might otherwise have been awarded, if the marital misconduct was committed by the dependent spouse.
The court treats “illicit sexual behavior” differently. “Illicit sexual behavior” means acts of sexual or deviate sexual intercourse, deviate sexual acts, cunnilingus, fellatio, cunnilingus, or anal intercourse, voluntarily engaged in by a spouse with someone other than the other spouse. If the dependent spouse has engaged in illicit sexual behavior on or before the date of separation, the court can deny post separation support or permanent alimony unless the supporting spouse also has engaged in illicit sexual behavior on or before the date of separation. If both parties have engaged in illicit sexual behavior on or before the date of separation, the court has the discretion to award or deny post separation support or alimony after considering all the circumstances. If only the supporting spouse has engaged in illicit sexual behavior on or before the date of separation, the court must order payment of alimony.
The idea of illicit sexual behavior is one of the most important changes of 1995 alimony statutes. Prior to 1995, adultery automatically barred a dependent spouse from receiving alimony, regardless of whether the supporting spouse had also committed adultery, and regardless of whether the adultery occurred before or after the date of separation. Under the present law, only acts of illicit sexual behavior committed on or before the date of separation are considered “marital misconduct.” The commission of an act of illicit sexual behavior by the dependent spouse may prohibit an award of post separation support and alimony if the supporting spouse has not also committed an act of illicit sexual behavior.
Either spouse in an alimony claim has a right to a jury trial to decide whether the other spouse has committed “marital misconduct.” Once the judge or jury has decided the questions of “marital misconduct,” the judge will award or deny permanent alimony based upon the factors discussed above. The judge may decide to reduce the amount awarded if the dependent spouse has engaged in ‘marital misconduct’. The court will deny alimony completely if the dependent spouse has engaged in an act of illicit sexual behavior on or before the date of separation and the supporting spouse has not committed any illicit sexual behavior.
Forgiving Marital Misconduct
When an incident of marital misconduct occurs, and if the spouses resume the marital relationship or have sexual relations, a court can rule that the marital misconduct has then been forgiven. If the court finds that the marital misconduct has been forgiven, or “condoned”, the act of marital misconduct may not be used to support or defend against a claim for alimony. The forgiveness is conditioned upon the offending spouse treating the other spouse kindly following the resumption of the marriage relationship and not later repeating the same or similar behavior.
For more information on Alimony and Post Separation Support in the state of North Carolina you can download the NC Statute 50-16.7
At Schulz Stephenson Law, we have a clear and vast understanding of the statues in the state of North Carolina relating to Alimony and Post Separation Support. We are here to help you prosecute your claim for PSS and alimony, or to defend these types of claims if brought against you. You can call us at (252) 728-7300 and we represent clients considering alimony in Carteret, Craven, and Pamlico County NC.