Who has a claim to receive postseparation support and alimony?
Both postseparation support and alimony are now available in North Carolina to financially dependent spouses without any requirement that the supporting spouse be proven to have been at fault. This omission of the fault requirement was a very important change in our state alimony law that took effect on October 1, 1995, for actions filed on or after that date.
Fault on the part of the dependent spouse may, however, still be material under the current law. In cases where the supporting spouse can prove that the dependent spouse engaged in uncondoned illicit sexual behavior, and the supporting spouse committed no similar fault, the dependent spouse loses his or her technical entitlement to alimony (but not his or her possible right to postseparation support).
An essential allegation in a complaint for postseparation support or alimony is that complainant is the dependent spouse, and that defendant is the supporting spouse.
The alimony statute defines these terms as follows: A dependent spouse is a husband or wife who is actually substantially dependent on the other spouse for maintenance or one who is substantially in need of maintenance and support from the other spouse. Whereas, the supporting spouse provides his or her spouse a majority of their income.
A finding of dependency is, however, not required in an order for payment of alimony entered by consent. A determination as to dependency involves mixed questions of law and fact and is left to judicial decision. In determining a dependent spouse’s need, the court in general looks at the parties’ accustomed standard of living in the last several years before separation. A spouse seeking alimony is not required to deplete his or her individual assets in order to maintain the parties’ accustomed standard of living.