Post-Separation Support and Alimony

"Post-separation support," refers to the monies paid to a dependent spouse by the other spouse until the earlier of either the date specified in the order or agreement providing for post-separation support, or an order awarding or denying alimony. Support which is of potentially longer duration, called "alimony" may be awarded at a later time and adjusted upward or downward following a divorce and equitable distribution of property. Spouses can also enter into a voluntary agreement regarding the payment of alimony, again with any terms and conditions they choose. A dependent spouse can also waive or forego either post-separation support or alimony by agreement.

Entitlement to or Eligibility for Post-Separation Support or Alimony

Under North Carolina law, only a dependent spouse is eligible to receive post-separation support or alimony. 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." Accordingly, without actual economic dependency, a spouse is not entitled to a judicial award of post-separation support or alimony in North Carolina. Actual need or dependence is a sufficient basis to establish the minimum qualification to support an award of post-separation support or alimony.

The requisites for post-separation support and alimony are somewhat different under the law in North Carolina as it exists prsently as opposed to the former law. In order to be eligible for post-separation support, a dependent spouse must show that his or her resources are not adequate to meet his or her reasonable needs, and that the supporting spouse has the financial means to pay post-separation support. In deciding the inadequacy of the dependent spouse's resources and the supporting spouse's ability to pay, a court looks at the parties needs in light of their accustomed standard of living, their incomes, their income-earning abilities, debt service obligations of each party, and their necessary expenses. By contrast, the language of the alimony statute requires an award of alimony in cases where the court finds an alimony award to be equitable. The courts are to use a number of factors, in making this determination of the reasonableness and equity of an award of alimony.

Under prior North Carolina law related to alimony, economic need was not enough to qualify a spouse for support. Under our prior alimony law, the dependent spouse also had to show that the "supporting spouse" had committed some constituting acts marital fault as "grounds for alimony." Grounds for alimony included actions such as abandonment, adultery, indignities, excessive use of alcohol or drugs, reckless spending, and failure to provide for a spouse's subsistence needs. These matters continue to be relevant marital fault to be considered in determining spousal support obligations, so long as the fault occurred during the marriage and before or on the date of separation. Additionally, a dependent spouse can still introduce evidence of fault as one of the factors that a judge can consider in an alimony hearing. However, proof of fault or "fault grounds" is not a prerequisite for an award of post-separation support or alimony.

Amount of Support

Unlike child support in North Carolina, there are no recommended guidelines as to the appropriate amounts of post-separation support and alimony to be received by a dependent spouse. Accordingly, a two step process is employed: (1) the amount of money which dependent spouse needs to meet his or her reasonable needs, consistent with the standard of living in the final years of the marriage must be determined [by measuring a spouse's reasonable monthly expenses against the amount of his or her available income and other financial resources] and (2) determining whether the supporting spouse has the financial ability to pay the amount of alimony.

In North Carolina, in determining the amount and duration of alimony, the Court and the parites must consider the totality of the circumstances. In order to determine what is fair and equitable all relevant factors must be considered, including, but not limited to, the following:

• The relative earnings and earning capacities of the spouses;

• The ages and the physical, mental and emotional conditions of the spouses;

• The duration of the marriage;

• The standard of living of the spouses established during the marriage;

• The relative needs of the spouses;

• The contribution of a spouse as homemaker;

• 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 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 amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;

• The marital misconduct of either of the spouses through the date of separation;

• The contribution by one spouse to the education, training, or increased earning power of the other spouse;

• 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.

Fault

Generally, then, fault such as abandonment by the other spouse continues to be defined as marital misconduct , so it may still be considered by a judge as one of the factors listed above. However, it would be only one factor of the many factors which the court is required to examine. Fault is an absolutely critical factor as a defense to a claim for spousal support, however. The only situation in which a dependent spouse will be absolutely barred from receiving an award of alimony (but not post-separation support) is that in which the supporting spouse can prove the other spouse's uncondoned illicit sexual behavior, with no similar fault having occurred on the part of the supporting spouse.

Duration or Length of Alimony Obligation

While post-separation support is by definition for a limited time and for a limited purpose, alimony under court order is payable as either a lump sum or in the form of periodic payments, for a specified or an indefinite term.

Termination Events

Five possible termination conditions set the end date for an indefinite term, and that would be when: (1) the parties resume marital relations; (2) the recipient dies; (3) the payor dies; (4) the recipient remarries; or (5) the recipient cohabits with another adult of the same or opposite gender. Of course, another possibility for termination of alimony is that the award expires on its own terms after a fixed length of time. By agreement, the husband and wife frequently agree on a fixed-term for alimony or post-separation support payments as well as the inclusion of other termination conditions.

Enforcement

Post-separation and alimony may be enforced by the Court in a number of ways, including, wage withholding, garnishment, incarceration for contempt of court as well as other remedies. Where child support is agreed to in a separation agreement, or ordered by the court, and then not paid, there are a number of remedies to secure enforcement of the agreement or court order. If the child support is set up in a contractual agreement, the basic remedy is suit for breach of the contract, which would include a claim for the arrears. If alimony is payable under a court order, whether originally established as a court order or entered as a result of a suit for breach of contract, the order is enforceable through the contempt powers of the court and penalties, including jail for non-compliance may be imposed.

Alimony and post-separation matters are very complex. The general information provided, here, is designed to help you understand, generally, the rights and obligations generally concerning these matters, but should not be used without obtaining the specific advice of competent and capable attorneys such as that provided by the members of Mitchell, Brewer, Richardson.

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