Factors In Determining Alimony And Post-Separation Support

Post Separation Support & Alimony

Post Separation Support - Post Separation Support laws were enacted in North Carolina effective October 1, 1995 and applicable to actions filed on or after that date.

North Carolina no longer has temporary alimony, but has changed the terminology to post separation support or PSS. The purpose of PSS is to prevent the more financially secure party from starving out the less financially secure party and forcing that party into an unfair property settlement agreement. If one party is found to be financially dependent on the other spouse that party is designated a "dependent spouse" and is entitled to an award of temporary support from the "supporting spouse." This award may also include an order requiring the supporting spouse to pay a portion of the dependent spouse's attorney fees. PSS is determined on the economic circumstances of the parties; however in certain cases, adultery or other marital misconduct may be considered in determining the award or denial of PSS.

The court may award Postseparation Support based upon the following:

  1. Financial needs of the parties;
  2. Accustomed standard of living;
  3. Present employment income and other recurring earnings of each party from any source;
  4. Earning abilities of both spouses;
  5. Separate and marital debt service obligations;
  6. Necessary living expenses of both parties;
  7. Each party's respective legal obligations to support any other person; and
  8. Pre-separation marital misconduct of both parties.

Marital Misconduct means any of the following acts that occur during the marriage and prior to or on the date of separation:

  1. Illicit sexual behavior, which includes acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts voluntarily engaged in with someone other than the other spouse;
  2. Causing an involuntary separation in consequence of a criminal act;
  3. Abandoning the other spouse;
  4. Maliciously turning the other spouse out of doors;
  5. Cruel and barbarous treatment endangering the life of the other spouse;
  6. Indignities rendering 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 & Entitlement to Alimony

While post separation support is temporary in nature and is designed to put the parties on equal footing, alimony is designed to be more long term or permanent in nature. Like PSS, the court, after considering all relevant factors, will determine the duration and amount of alimony.

Before a court will award one party or the other alimony, you must:

  1. Be the dependent spouse, which means you are actually and substantially dependent upon the other spouse for support or substantially in need of support from the other spouse; and
  2. It must be equitable or fair to award the dependent spouse alimony. Equitable is determined according to the following relevant factors:

    a. Financial needs of the parties;
    b. Accustomed standard of living;
    c. Present employment income and other recurring earnings of each party from any source;
    d. Earning abilities of both spouses;
    e. Separate and marital debt service obligations;
    f. Living expenses of both parties necessary for support of both; and
    g. Each party's respective legal obligations to support any other person.

Illicit sexual behavior in entitlement of Alimony

(a) If you are the dependent spouse and you engaged in uncondoned illicit sexual behavior during the marriage and prior to the date of separation, you will not receive alimony unless the supporting spouse also participated in an act of uncondoned illicit sexual behavior during the marriage and prior to the date of separation.

(b) If you are the supporting spouse, your spouse shall be entitled to alimony if you engaged in an uncondoned illicit sexual act during the marriage and prior to or on the date of separation (and the dependent spouse is not guilty of the same conduct).

If both spouses have engaged in an uncondoned illicit sexual act, then alimony may be denied or awarded in the discretion of the court after consideration of all the other circumstances.

The trial Judge decides the amount, duration and manner of payment of permanent alimony.

The relevant factors the court must consider in determining the manner, amount and duration of payment of permanent alimony are:

  1. The marital misconduct of either of the spouses, which may be determined by a jury (see marital misconduct under Postseparation Support; the factors are the same);
  2. The relative earnings and earning capacities of the spouses;
  3. The ages and the physical, mental and emotional conditions of the spouses;
  4. The amount and source 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;
  5. The duration of the marriage;
  6. The contribution by one spouse to the education, training or increased earning power of the other spouse;
  7. 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;
  8. The standard of living of the spouses established during the marriage;
  9. 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;
  10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
  11. The property brought to the marriage by either spouse;
  12. The contribution of a spouse as homemaker;
  13. The relative needs of the spouses;
  14. The Federal and State tax ramifications of the alimony award; and
  15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.

Alimony or Post separation Support can be modified or terminated by the court upon a showing of material and substantial change in circumstances since the entry of the order.

Alimony or Post Separation Support terminates upon the death of either party, upon the remarriage of recipient spouse, or upon cohabitation of the recipient spouse.

Cohabitation occurs when two adults dwell together continuously and habitually in a private heterosexual or homosexual relationship. When dealing with the issue of cohabitation, the old adage - if it looks like a duck, sounds like a duck, and acts like a duck, then it is probably a duck - applies. So if you and your new partner look like you are married, and act like you are married, you probably are cohabiting in the eyes of the a Court.