What impact can dating have on postseparation support?

The impacts in this arena could be quite severe, depending on:

  • how long you have been dating other person(s)
  • whether you are the “dependent” or the “supporting” spouse
  • whether the dating began before or after the date of separation
  • and whether the dating can be shown to embrace “illicit sexual behavior” or some other marital fault such as “indignities”.

As you can see from these conditions, this is a complicated area of our law. Some would say the area is overcomplicated; but you need to learn the details if you are going to make an informed decision about the hazards of dating. Neither postseparation support or alimony can be ordered by a court in North Carolina if:

  • your spouse can meet his or her own financial needs and/or you yourself don’t have the ability to contribute to your spouse’s financial welfare, or (shifting the tables) OR
  • you can meet your own financial needs and/or your spouse doesn’t have the ability to contribute to your financial welfare.

In other words, support can’t and won’t be ordered where (a) your spouse is not a dependent spouse and/or you don’t have the ability to pay spousal support or (b) you are not a dependent spouse and/or your spouse doesn’t have the ability to pay you support.

If you are in this relatively rare situation, you need read no further. Your dating will not affect spousal support because such support can’t be awarded anyway, on the grounds of absence of dependency and/or ability to pay. Most couples are not in that situation, however. And there are perils to dating for both a dependent and a supporting spouse.

The peril is most evident in the realm of long-term alimony. The peril for a dependent spouse is that his or her uncondoned illicit sexual behavior prior to or on the date of separation (if proven by the other spouse) and in the absence of similar acts by the other spouse will bar alimony — no matter how great his or her financial need. The peril for a supporting spouse is that his or her uncondoned illicit sexual behavior prior to or on the date of separation (if proven by the other spouse) and in the absence of similar acts by the other spouse will make an award of alimony mandatory.

The rule is different, however, if both spouses are shown to have engaged in such behavior prior to or on the date of separation.

In that situation, an award of alimony is within the court’s entire discretion. The judge can make such an award, or not. The rules for temporary postseparation support are a bit more lenient with regard to the possible legal effect of dating during the marriage by the supporting spouse. Because postseparation support looks to financial need of the dependent spouse and the supporting spouse’s ability to pay — without scrutiny of the further extensive list of non-financial factors taken into account during an alimony determination — a supporting spouse’s acts of marital misconduct will not be considered unless the dependent spouse is shown to have committed misconduct prior to or on the date of separation.

Thus, the supporting spouse’s dating to the point of illicit sexual behavior will not make an award of postseparation support mandatory, as contrasted to the situation with alimony. Also, the uncondoned illicit sexual behavior of the dependent spouse during marriage does not automatically disentitle him or her from receiving postseparation support, as it might disentitle the dependent spouse from an award of alimony. Rather, the court is required to “consider” that marital misconduct by the dependent spouse in deciding whether to award postseparation support and in deciding its amount.

In general, most family law matters are tried only by a judge. But as with a trial on alienation of affection and/or criminal conversation, either spouse may request a jury trial on the issue of marital misconduct in the context of postseparation support and alimony. As mentioned above, jury trials tend to attract the media; and the media tend to like cover stories involving sex. Dating can thus receive more publicity than you ever anticipated. Your desire (or your dating partner’s hope) to avoid such publicity may give your spouse more leverage for a settlement in his or her favor.


Rosen attorneys are available for consultations by both phone and video conference – call 919-787-6668 for more information.Learn More
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