Post Separation Support & Alimony


Does "fault" matter in North Carolina?

North Carolina is a "no fault" state for purposes of an absolute divorce. However, in a Divorce from Bed and Board claim, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse so as to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery. These fault grounds will be considered by the court in making a determination of a divorce from bed and board claim. Fault grounds will also be considered in claims for post separation support and alimony. Marital misconduct may apply to an Alimony claim only after the Court has made a determination there is in fact a dependent spouse and a supporting spouse and that the supporting spouse has the ability to pay support to the dependent spouse.

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What is post separation support?

Post Separation Support, is basically temporary alimony. Post-Separation Support is simply an award which is made relatively early in the litigation process in order to make sure that if there is a dependent spouse, that spouse has his or her needs met well before his or her Alimony claim is heard by the Court. A party must be a "dependent spouse" before post separation support can be ordered.

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What impact could my dating have on post-separation support and alimony?

Illicit sexual behavior is a marital misconduct ground under our post-separation support and alimony statute, which may be considered by the court both in awarding spousal support and making a determination of the amount and duration of the payments. However, the illicit sexual behavior must have occurred prior to or on the date of separation of the parties to be considered. If the dating took place prior to or on the date of separation of the parties and it involved illicit sexual behavior, the court can consider it as a factor determining support. If the dating takes place only after the date of separation, the court may consider these post-separation acts as corroborative evidence of allegations of illicit sexual behavior before or on the date of separation. Simply put, if you enter into a dating relationship very quickly after the date of separation, you run the risk that your former spouse will believe you were in a relationship with this person before you separated. A common suggestion from family law attorneys is that their clients not engage in any dating relationship until all their divorce-related claims, including spousal support and child custody, are resolved.

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Is fault used in dividing marital property?

No. Fault is never used when dividing marital property. Fault or marital misconduct is only relevant as to claims for post-separation support and/or alimony.

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How do I ensure my right to equitable distribution of marital assets?

In order to make sure your right to an Equitable Distribution of the marital assets you must file a claim for Equitable Distribution before an absolute divorce is granted. Your claim for Equitable Distribution must be pending with the Court prior to an absolute divorce being granted. If an absolute divorce is granted and you do not have a pending claim for Equitable Distribution, you will lose your right to Equitable Distribution and all property will be distributed according to title.

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How is property divided in North Carolina?

In North Carolina, there is a presumption that equal is equitable which in essence means that a division of marital assets and debts between the parties on a fifty-fifty basis is presumed to be equitable. This does not mean, however, that equal is always equitable. There are several statutory factors the Court may consider when dividing assets which may result in an unequal distribution in favor of one spouse over the other. An equal division of property does not mean that each asset is divided in half. The goal is to make sure that each spouse is distributed an equal amount of the marital assets and an equal amount of the marital debt.

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