Will You Owe Your Spouse Alimony After a Divorce?
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. The North Carolina alimony statutes contain sixteen factors which guide the court in making an alimony determination. If a courtroom appears to be in your future be sure to read Navigating Basic Court Procedure in North Carolina.
Quick Look: Alimony Recapture Rule
Alimony can be settled out of court in the form of a separation agreement. The payor of alimony needs to be aware of the alimony recapture rule. 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 payors 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.
Is Marital Fault a Requirement to Receive 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 new 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 her technical entitlement to alimony (but not her possible right to postseparation support).
At What Point During the Separation Do I Make a Claim for Alimony?
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.
However, the time of the application for postseparation support must have a reasonable nexus to the time of the order. In one North Carolina case, for instance, an order of retroactive temporary alimony (now called postseparation support) entered in 1987 was held to be in error, as the claim had been filed in 1984. The rationale of that case was that the dependent spouse could not have actually needed temporary support, since three years had gone by and the claim had not been prosecuted in a timely fashion.
What if I’m Already Divorced?
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.
Who is Eligible to Receive Alimony in North Carolina?
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. 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.
What are the Eligibility Requirements?
The purpose of postseparation support is to enable the dependent spouse to meet his or her reasonable needs. In supporting a claim for postseparation support, complainant must also allege that he or she does not have the financial resources to meet those reasonable needs.
What Economic Factors Does the Court Use in Determining Post-Separation Support?
In ordering postseparation support, the court is required to consider a number of economic factors, including:
- the financial needs of both parties,
- the parties’ accustomed standard of living,
- the present employment income and other recurring earnings of each party from any source,
- the parties’ income-earning abilities,
- the separate and marital debt service obligations of each party,
- those expenses reasonably necessary to support each of the parties, and
- each party’s respective legal obligations to support any other persons.
Application for postseparation support may be heard at any time by a judge of the district court having jurisdiction over the matter. The judge finds the facts from evidence presented upon affidavit, verified pleading, or some other proof. In other words, if the court wishes, it does not have to conduct a full-blown trial in order to enter an award of postseparation support. The court is not even required to hear oral testimony if it does not wish to do so.
Is Alimony Limited to Cash Payments?
An award of alimony may include, in addition to a sum of money in lump sum and/or periodic payments, transfer of title or possession of personal property and an interest in property, a security interest in or possession of real property. Both periodic and lump sum payments may be for a limited, specified term.
Determining Alimony Involves More than Just Number Crunching
In fixing the amount of alimony, the court must consider all the factors enumerated in G.S. 50-16.5: “Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.”
The court’s alimony order must make findings on all these factors and also on all factors in the following list about which either of the parties has presented evidence:
- 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.
Income as a Factor
A supporting spouse’s income at the time of the alimony trial is the relevant earnings criterion for the payor, unless it appears there has been a deliberate attempt on the part of the supporting spouse to avoid financial responsibility by refusing to seek or accept gainful employment, by willfully refusing to secure or take a job, or by deliberately not applying him/herself to a business, by intentionally depressing income to an artificially low figure, or by intentionally leaving employment to go into another business.
Other Non-Economic and General Expense Factors
The “condition” of the parties includes age, health, physical well-being, and other such circumstances. The court must consider the parties’ accustomed standard of living for the reason that alimony should be in an amount that allows the dependent spouse to have an economic standard established by the marital partnership during the years the marriage was intact. The reasonable needs of the dependent spouse are shown by appropriate expenses for things such as food, clothing, and lodging.
Are Attorneys Fees Included in Alimony Awards?
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.
When Do Alimony Payments End?
An order of postseparation support will terminate, pursuant to the applicable statute, if:
1. the parties resume marital relations;
2. the dependent spouse remarries;
3. the dependent spouse cohabits with another adult in a private heterosexual or homosexual relationship;
4. the dependent spouse dies; or
5. the supporting spouse dies.
The order itself, of course, may provide for its own expiration on a date certain. 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.
When Does Alimony Involve Taxes?
Under federal and state income tax law, alimony is deductible by the payor spouse and reportable as income to the dependent spouse, provided that the following criteria are met:
- the payments are in cash and not in kind;
- the payments are made incident to divorce or to a separation agreement;
- the parties have not designated the payments as non-alimony;
- the parties are not living in the same household; and
- the payor has no liability for payment after the death of the payee spouse.
While the parties may privately agree that the tax deduction and the taxable income aspects of federal alimony law shall not apply, the parties may not by private stipulation create “alimony payments” that do not meet the five federal criteria and yet attempt to obtain the tax deduction for the payor.
Marital Fault is No Longer Required, But Does it Still Play a Role?
Although an alimony claimant is no longer required to prove the other spouse is at fault in order to be entitled to postseparation support or alimony, the new alimony statute still retains the concept of marital fault and still permits a judge to consider evidence of fault in fixing the amount of alimony to be awarded, if any.
Marital fault in North Carolina is enumerated in the new statute as follows:
- 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”).
- Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.
- Malicious turning out of doors.
- Cruel or barbarous treatment endangering the life of the other spouse.
- Such indignities as to render the condition of the other spouse intolerable and life burdensome.
- Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets.
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
- 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.
The method for proving marital fault varies according to the fault. The following discussion is based entirely on the law as it had developed prior to the enactment of the new alimony statute, as the 1995 statute is too new to have been interpreted as yet in North Carolina appellate cases.
1. Illicit Sexual Behavior
This fault, which used to be called adultery and unnatural sex acts (arguably more narrow concepts), can be a useful fault ground. Unlike many of the other grounds, adultery can have no legal justification — proof of the act will establish fault. Adultery may be proved by direct evidence, including the declarations of the paramour and (since 1984) the admissions of the adulterous spouse. Adultery may also be proved by circumstantial evidence.
The evidence of adultery, whether direct or circumstantial, “must tend to show both opportunity and inclination to engage in sexual intercourse and . . . when the evidence shows no more than opportunity, an issue of adultery should not be submitted.” Opportunity is some situation or circumstance in which the party and the paramour are alone and unsupervised; and the setting would suggest amorous activities. Inclination is the expression of feelings of love and affectionate behavior between the party and the lover.
The evidence of opportunity was abundant in one of the well-known reported cases and included the following: observation of husband and woman leaving his farm house together at 10:30 a.m., their entering a residence together and staying for two hours, eating together in a restaurant, entering the same motel at separate times with both their cars remaining there throughout the night, driving together, and spending a night together in husband’s condominium, entering and leaving the condo separately. Those facts were not, however, sufficient to prove adultery because there was insufficient evidence of inclination.
If the case contains such facts of opportunity without evidence of inclination as well, these facts may still be sufficient for establishing indignities arising from a spouse’s association with a member of the opposite sex.
Abandonment occurs when a spouse brings cohabitation to an end without justification, without the consent of the other spouse, and without the intent of renewing cohabitation. All three of these elements must be proved by the spouse seeking to show the other spouse’s abandonment. A spouse is justified in leaving the other spouse, however, when the withdrawing spouse cannot continue the marital relation with safety, health, and self-respect.
North Carolina cases also recognize constructive abandonment as marital fault as well. Constructive abandonment arises when the other spouse does not physically leave the home but, rather, commits affirmative acts of cruelty or neglect or other willful failure to fulfill the obligations of marriage.
The dependent spouse may be driven to leave the home, in fact, by such acts of cruelty or neglect. Notice that the dependent spouse who is forced to leave the home by the other spouse’s misconduct not only does not abandon the injuring spouse but has, in fact, been constructively abandoned.
3. Malicious Turning Out of Doors
Malicious turning out of doors is a sub-set of willful abandonment and is proved by the same basic facts.
An indignity is conduct which renders the other spouse’s condition intolerable and life burdensome. According to one case, “Indignities may consist of unmerited reproach, studied neglect, abusive language, and other manifestations of settled hate and estrangement.” Facts supporting an allegation of indignities must be developed on a case-by-case basis because each individual has a different level of tolerance for misbehavior by a spouse.
The fundamental characteristic of indignities is that indignities must be a course of conduct or continued treatment, repeated and persisted in over a period of time. Under North Carolina law, isolated instances of bad or objectionable conduct do not constitute a sufficient pattern of conduct to amount to indignities.
5. Reckless Spending
This fault used to be identified under the label of the “spendthrift” spouse. A spendthrift, according to our case law, is a person who spends money profusely and improvidently. Being a spendthrift is now only part of this fault ground, which now includes the destruction, waste, diversion or concealment of assets as well.
Separation Agreements May be Used by Amicable Spouses to Eliminate Alimony
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.
Alimony Provisions when Existing Premarital Agreements Become a Factor
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.
Determining Alimony When the Dependent Spouse has Engaged in Illicit Sexual Behavior
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.
There are other devices that may limit the impact or admissions of fault evidence. More generally, a spouse may also use the other spouse’s provocation or one’s own lack of willfulness as a defense to fault allegations where applicable. It may also be possible to keep certain evidence from being admitted at an alimony trial. Although spouses are now competent under North Carolina law to testify for or against each other, privilege law still provides possible obstacles to the admission of certain evidence.
For example, a provision in Chapter 8 of our General Statutes provides that “[n]o husband or wife shall be compelled to disclose any confidential communication made by one to the other during their marriage.” A confidential communication, “whatever it contains, [is] induced by the marital relationship and prompted by the affection, confidence and loyalty engendered by such relationship.”
Under this definition, a spouse who confesses adultery for the purpose of healing the marriage should be able to bar evidence of his admission of adultery under the privilege for confidential communications. Conversely, an admission of adultery in the context of humiliating the other spouse should not be protected by the privilege.
The Constitutional Privilege Against Self-Incrimination
Further, a party may invoke the constitutional privilege against self-incrimination in refusing to be compelled to testify about adulterous acts or other information which would furnish a link in the chain of evidence that could be used in a criminal prosecution. The right against self-incrimination is guaranteed by both the federal and the North Carolina Constitutions. Moreover, the privilege against self-incrimination applies not only to the trial stage of civil or criminal proceedings but also to discovery and pleading.
Where a spouse invokes the privilege against self-incrimination, the fact finder may infer from the refusal to answer that a truthful answer would have been unfavorable to the witness. Case law, however, also now requires an adulterous dependent spouse to make a difficult choice. The adulterous dependent spouse can assert the privilege to shield herself from criminal charges by refusing to answer questions concerning her alleged adultery; if she asserts the privilege, however, she will be held to have abandoned her alimony claim (because the fact finder can infer that she is barred). Alternatively, the adulterous spouse can waive her privilege and pursue her claim.
Modification of Alimony Determinations in North Carolina
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. (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.)
Notice that modifiability of a North Carolina alimony order requires two things:
- first, alimony is being paid under court order; and
- 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 includes detailing findings of fact as to the parties’ financial condition and the like.
The enforcement of an alimony decree is governed by statute, which provides for various avenues of relief, including the remedy of arrest and bail; the remedies and attachment and garnishment; the remedy of injunction; receivership; enforcement by proceedings for civil contempt and the punishment of disobedience by proceedings for criminal contempt; and execution, execution sales and supplemental proceedings.
For purposes of attachment and garnishment, the statute provides that the spouse is deemed a creditor of the supporting spouse. A dependent spouse is expressly designated in the alimony statutes as “a creditor within the meaning of Article 3 of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.”
Any of the enforcement means specifically enumerated in the statutes is in addition to any other available remedies, rather than exclusive. Even if a supporting spouse has appealed an order for periodic alimony, the dependent spouse may still have the trial court enforce its order by civil contempt while the appeal is pending. This is an exception to the usual rule that an appeal removes a case from the jurisdiction of the trial court.
Past-due periodic alimony payments, reduced to judgment by motion in the cause or by separation action, become a judgment lien on which execution may issue as with other judgments. As mentioned above, the execution sales and supplemental proceedings remedies in Chapter 29B and 31 are available for the enforcement of alimony judgments, “but amounts so payable shall not constitute a debt as to which property is exempt from execution” under Chapter 1C.
Enforcing Alimony per a Separation Agreement
The enforcement of alimony payable under a separation agreement is governed, of course, by rules of contract law and contract enforcement. The separation agreement may provide for incorporation into a judgment (which would make the amount of alimony modifiable) The agreement can also state whether alimony is or is not subject to modification. Spousal support provisions in a separation agreement that has not been incorporated into a court order cannot be modified by a court except with the consent of the parties.
The intent of the parties will be interpreted and then enforced by a court if the dependent spouse brings suit for breach of an unincorporated alimony contract. Specific performance or damages may be awarded by the court, as is appropriate to the facts of the particular case.
Securing Alimony Obligations Through Other Means
The court may secure an obligation to pay alimony by bond, mortgage, deed of trust, or any other ordinary security device. The court may also achieve security of payment of the alimony obligation by ordering the supporting spouse to execute a wage or income assignment. The court may create a security interest in real property for the benefit of an alimony recipient.
Further, the court may also enter an order which shall transfer title of property which the dependent spouse is receiving as alimony or to which a security interest is being attached.