Alimony & Spousal Support in Raleigh
In North Carolina support payments for the divorced spouse, if any, are referred to as Post-separation Support and Alimony. Post-separation support is considered temporary and is designed to provide for the dependent spouse’s support until a final order of alimony is entered. While post-separation support is usually determined after the parties separate, the law does not require that parties be separated and living apart at the time an action for support is initiated or even at the time a hearing is held on the matter. If awarded, post-separation support is generally paid until there is an order awarding or denying alimony or the date specified in the order of post separation support; whichever occurs first.
Only a “dependent spouse” is eligible to receive spousal support in this state. In North Carolina an award of post-separation support or alimony is not justified unless there is economic dependency by one and the ability to pay by the other spouse. In basing its award the court considers 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 person. With some exceptions, a dependent spouse is entitled to an award of post-separation support if, based on the factors above, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the support spouse has the ability to pay.
An award of alimony may be awarded where the Court finds an alimony award to be equitable. The Court must first determine that one party is a “dependent spouse” while the other spouse is a “supporting spouse”. A “dependent spouse” is one determined to be actually dependent on the other spouse for his or her maintenance or is substantially in need of support from the other spouse. A “supporting spouse” is a spouse upon whom the other spouse is actually substantially dependent for maintenance or from whom spouse is substantially in need of maintenance and support. Once the Court has found that a spouse is a “dependent spouse” and the other spouse is a “supporting spouse” and an award of alimony is equitable it may then exercise its discretion in determining the amount, duration and manner of payment.
The duration and amount of alimony is determined on a case-by-case basis and, if brought before the Court, the Court takes the following factors into consideration in making its award:
- Any marital misconduct.
- The spouses earning capacities.
- The ages and the health conditions of the spouses;
- The income and assets of each spouse.
- The length 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 while married;
- 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
- The debts of each spouse.
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- Any tax consequences;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- 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.
The Court has the discretion to order payments of alimony for only a limited time period or can order payment by lump sum. One caveat to alimony includes illicit sexual behavior. If a dependent spouse is able to convince the court the supporting spouse engaged in illicit sexual behavior during the marriage and prior to the date of separation then the court must award alimony. On the other hand, if a supporting spouse is able to convince the court the dependent spouse engaged in illicit sexual behavior during the marriage and prior to date of separation then the court is precluded from making an award of alimony.
Post-separation support or alimony also terminate upon the death of either spouse, the dependent spouse remarries, or engages in cohabitation. If awarded spousal support, be careful not put yourself in a living environment that a court may consider as “engaging in cohabitation”. Cohabitation is considered on a case-by-case basis and is broadly defined as the act of two adults dwelling together continuously and habitually in a private heterosexual or homosexual relationship. As a consequence, this issue alone has led to numerous court of appeals decisions. Please consult a family law attorney if you find yourself in this situation.
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