Alimony in North Carolina
What is Alimony?
Alimony in North Carolina is payment for the support and maintenance of a spouse, either by lump sum or on a continuing basis. Alimony is paid by the “supporting spouse” to the “dependent spouse;” the general rule is that a spouse is dependent when he or she makes less money than the other spouse.
Alimony can be determined by the courts, or it can be settled out of court in the form of a separation agreement.
No matter where it starts, at some point the conversation almost always turns to money. It may be an amicable and straightforward chat – or it might turn into a bitter, ongoing struggle. Before it gets to that point, it’s important to understand where alimony comes from, and what it’s based on.
This is where North Carolina statute 50-16.3A comes in. This is the law that spells out who’s entitled to alimony, and how decisions about alimony are approached by the courts. And it turns out there’s a lot to consider.
Primary Factors Used in Determining Alimony
- The marital misconduct* of either of the spouses. (Note: Adultery AFTER the date of separation is only relevant as corroborating evidence for adultery BEFORE separation.)
- The relative earnings and earning capacities of the spouses.
- The ages and the physical, mental, and emotional conditions of the spouses.
- The amount and sources of earned and unearned income of both spouses, including earnings, dividends, and benefits such as medical, retirement, insurance, social security…
- The duration of the marriage.
- The contribution by one spouse to the education, training or increased earning power of the other.
- 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 during the marriage.
- 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 relative assets and liabilities of the spouses and the relative debt of the spouses, including legal obligations of support.
- The property brought to the marriage by either spouse.
- The contribution of a spouse as homemaker.
- The relative needs of the spouses.
- The federal, State, and local tax ramifications of the alimony award.
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. and last but not least:
- 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.
So what does this all mean?
Quite simply, know your rights. Understand what the courts look at. Maintain a clear, detailed and easily accessible history of your financial affairs. And above all, make sure you’re aware of all the financial assets and liabilities that are held by you and/or your spouse.
FOOTNOTE/SIDEBAR: *Under North Carolina law, marital fault has its own Top Nine List: 1. Illicit sexual behavior (meaning “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engage in by a spouse with someone other than the other spouse”). 2. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought. 3. Abandonment. 4. Malicious turning out of doors. 5. Cruel or barbarous treatment endangering the life of the other spouse. 6. Such indignities as to render the condition of the other spouse intolerable and life burdensome. 7. Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets. 8. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome. 9. 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.
Alimony Resources
- Alimony FAQs
- What You Need to Know About Alimony in NC
- Will I Owe My Spouse Alimony?
- I Need More Alimony From My Spouse
- Cost of Divorce and Attorneys Fees
- How Do I Get Attorneys Fees From My Spouse?
- Impact of Tax Code Changes on Alimony
- Insurance Coverage for Former Spouses
- Sex Addiction’s Influence on Marriage and Divorce
- Will My Partner Staying Over Affect My Divorce?
Alimony FAQs
An action for postseparation support or alimony may be brought in conjunction with a divorce, either absolute or from bed and board, or as an independent action whether or not a separate action for divorce is pending.
Where the application is for postseparation support, the court is permitted to base its award on a verified pleading, affidavit or other evidence. In the award or denial of postseparation support, the court is required to set out the reasons for its ruling and, if making an award, the reasons for the amount, duration and manner of payment.
Where an alimony claim is joined to a claim for divorce from bed and board, the residency requirements of General Statutes section 50-8 must be satisfied. There is no jurisdictional waiting period for an action for alimony or postseparation support without divorce.
A valid separation agreement, in which an express provision waives postseparation support, alimony and attorney’s fees related thereto, may be pled in bar of an action for postseparation support, permanent alimony, and fees so long as the agreement is performed.
However, if a provision of a premarital agreement modifies or eliminates spousal support and that modification or termination causes one party to the agreement to be eligible for public assistance at the time of separation or dissolution of the marriage, then the court may require the other party to provide spousal support to the extent required to avoid the spouse’s eligibility for a public assistance program.
Before ordering such support in contradiction of a provision in a premarital agreement, the court must find dependency and the other factors required by the postseparation or alimony provisions.
Our statutes permit the court, in its discretion, to enter an order for reasonable attorney’s fees in connection not only with an award of postseparation support but also with an award of alimony, at any time. The award can even be made in connection with an appeal. Generally, attorneys’ fees are available to a dependent spouse when that spouse is eligible to receive alimony.
Modification or vacation of a North Carolina decree awarding alimony, whether entered after contest or upon consent, will be considered upon a motion in the cause and a showing of changed circumstances by either party.
Understand that modifiability of a North Carolina alimony order requires two things
- first, alimony is being paid under court order
- second, a substantial change of circumstances has occurred, measured by a comparison of facts existing at the time of the original order and the time when modification is sought.
The best way to be sure there is a record of the circumstances existing at the time of the original order is to make sure the original order details findings of fact as to the parties’ financial condition and the like.
Under UIFSA, discussed above in connection with child support, North Carolina may not modify an alimony or spousal support order entered by a court in another state. Pursuant to our UIFSA law, a spousal support order may be modified only by the state that issued the original alimony order, whether or not that state has enacted UIFSA.
An alimony order for an indefinite term will terminate, pursuant to the applicable statute, if
- the parties resume marital relations
- the dependent spouse remarries
- the dependent spouse cohabits with another adult in a private heterosexual or homosexual relationship
- the dependent spouse dies
- the supporting spouse dies.
The order itself, of course, may provide for its own expiration on a predetermined date. If one of the previously listed events occurs prior to the fixed date, then the order will terminate on that earlier date. Where the issue of spousal support is decided by separation agreement and property settlement, the parties may negotiate for whatever termination conditions they wish.
By statute, the dependent spouse’s illicit sexual behavior, if found against that party, is an absolute bar to alimony (although not a bar to postseparation support) but only if the other spouse has not also engaged in illicit sexual behavior.
In a case where each party is shown to have engaged in such behavior, an award of alimony is within the court’s discretion. Reconciliation or the death of either party may also be pled as a basis for terminating the obligation to pay postseparation support or alimony.
A party defending against an action that includes allegations of marital fault also has certain common law affirmative defenses to the fault allegations. These defenses have technical names: condonation, connivance, collusion and recrimination.
The most commonly used of these defenses is condonation, which stands for forgiveness of the particular fault. For example, if your spouse has engaged in illicit sexual behavior with someone else and then you have sex with your spouse knowing about the illicit sex, in the eyes of the law you may have condoned the fault.
Like the statutory defenses outlined above, the common law defenses must be affirmatively pleaded with sufficient particularity to inform the opposing party of the events intended to be proved. It would be difficult for a layperson to plead these defenses correctly.
The right to jury trial is governed by a statutory provision stating that a jury may render the verdict on issues of fault, but a judge alone decides the issues of dependency and amount of postseparation support and/or alimony.
The parties must still be married when a claim for postseparation support or alimony is filed. They cannot have been divorced when such a claim is first filed, as one of the statutory provisions in Chapter 50 provides that an absolute divorce does not affect the rights of either spouse with respect to any action for postseparation support or alimony pending at the time the judgment for divorce is granted.
Our case law makes clear that a party may not, after the time of divorce, seek alimony in an action not in fact already pending at the time of the divorce. A somewhat different rule exists, however, for foreign divorces obtained without personal jurisdiction over the dependent spouse. In such cases, absolute divorce does not impair the dependent spouse’s right to seek alimony under North Carolina law.
The alimony recapture rule only applies to the payor when alimony payments decrease substantially or end during the first three calendar years. This rule is intended to prevent payers whose divorces occur near the end of the year from making deductible property settlements at the beginning of the year. Will you owe alimony recapture?
Let our Alimony Recapture Calculator determine if this rule applies to your proposed alimony payments.
Alimony Calculator
We’ve built a calculator using guidelines and formulas from states and jurisdictions around the country. North Carolina doesn’t have a formula for alimony, but this calculator will help you get an idea of what you or your spouse may end up paying based on income and the length of the marriage.
