In North Carolina, there are two types of spousal support: post-separation support and alimony. “Post-separation support” is generally temporary support paid pending the entry of an order awarding or denying alimony. “Alimony” is typically ongoing support paid to a spouse in an amount and duration agreed upon by the parties or ordered by a court. Spousal support can be established by the agreement of the parties in a settlement agreement or consent order, or determined by a court following a spousal support hearing. There are significant legal consequences to establishing spousal support by written contract as opposed to a court order so it is important to consult legal counsel to make sure you understand the distinctions.
A spouse is generally entitled to spousal support if he or she is financially dependent upon the other spouse. To be awarded spousal support, the claimant must establish that he or she is a “dependent spouse” and either “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.” The “dependent spouse” must establish his or her reasonable monthly needs and expenses and further prove that the other spouse is a “supporting spouse” with the ability to pay the amount of support requested.
If spouses cannot resolve spousal support by agreement, the trial court will establish the appropriate amount, duration, and manner of payment of support. Unlike in most child support cases, North Carolina does not have “guidelines” for setting the amount and duration of spousal support. Rather, in determining the appropriate parameters for support, the trial court will consider several factors, including for example: marital misconduct; the length of the marriage; the financial needs of the spouses; the spouses’ earnings and/or earning capacities; the standard of living established during the marriage; the spouses’ ages and health; homemaker contributions of a spouse; and the spouses’ relative assets and liabilities.
“Marital misconduct” will be a relevant factor in an alimony hearing but may not be a relevant factor in a post-separation support hearing. Common acts of marital misconduct include:
- Illicit sexual behavior;
- Involuntary separation due to criminal act;
- Domestic violence;
- Financial recklessness and being a spendthrift; and
- Substance abuse
Of these, illicit sexual behavior may be the most critical factor in an alimony case. Generally, if a dependent spouse commits “illicit sexual behavior” during the marriage that is not subsequently condoned by the supporting spouse, the dependent spouse is barred from receiving alimony. In contrast, if a supporting spouse commits “illicit sexual behavior” during the marriage that is not subsequently condoned by the dependent spouse, the supporting spouse is required to pay alimony.
Spousal support payments may be taxable to the payee as income and tax-deductible to the payor, depending on the terms of the award in the specific spousal support agreement or court order. In general, spousal support terminates upon the first to occur of the following: (1) satisfaction of all payments as agreed or ordered by a court; (2) death of the supporting spouse; (3) death of the dependent spouse; (4) dependent spouse’s remarriage; or (5) dependent spouse’s cohabitation.
If spousal support is a potential factor in your separation or divorce case, you should consult with a qualified attorney to understand your rights and obligations under the circumstances. Attorneys at Wyrick Robbins Yates & Ponton LLP are qualified and ready to advise you regarding all aspects of North Carolina spousal support law and will work to develop the best strategy for protecting your marital interests.