Alimony and Spousal Support
Spousal support is available to economically dependent spouses in North Carolina. Either spouse may be eligible for alimony if they are unable to meet their own reasonable financial needs or maintain their standard of living during the marriage without the other spouse’s income or assets.
North Carolina State law defines a “dependent spouse” as “a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” NCGS Sec. 50-16.1A.
Support is generally referred to in two ways – post separation support and alimony.
- Post Separation Support. Post-separation support, which used to be called temporary alimony, refers to monies paid to a dependent spouse until an order granting or denying alimony is given or another date already specified in an existing post-separation order. This is an interim practice only and, unless other court orders exist, spouses can enter into post-separation support agreements voluntarily.
- Alimony. Alimony is more permanent in nature; however, it does not generally last as long as it once did. Similar to post-separation support, spouses can enter into a voluntarily alimony agreement under any terms they choose or waive that support altogether. Under the family court’s judge discretion, an amount will be decided for the awarding alimony.
Post-Separation Support & Alimony Eligibility
There are no recommended guidelines when it comes to post-separation support or alimony awards in North Carolina. Judges will look at the spouses’ entire marital picture and consider every element, including:
- How much each spouse earns or may potentially earn;
- The age and overall health of each spouse;
- All sources of income, including retirement benefits and investments;
- How long the parties were married;
- How much one spouse contributed to the others professional education (i.e., a wife working to pay her husband’s way through law school);
- The financial impact on the spouse who assumes custody of any minor children;
- The standard of living created during the marriage;
- The difference in the spouses’ education, and how long it may take the spouse requesting alimony to receive sufficient training to find employment;
- The difference in the spouses’ assets and debts, including other legal support obligations;
- Marital misconduct by either spouse, including corroborating evidence of misconduct after the parties separated;
- What property each spouse brought to the marriage;
- The household contributions of a stay-at-home spouse;
- The relative needs of either spouse; and
- The tax impact of any alimony award.
- Illicit Sexual Behavior Affects Award. Under North Carolina law, a court will not award alimony if it finds that the dependent spouse was involved in “illicit sexual behavior” during the marriage or on the date of separation – regardless of current financial needs. If a court finds that the supporting spouse was engaged in “illicit sexual behavior” during marriage, then it will automatically award alimony. North Carolina law (NCGS Sec. 50-16.3A) defines “illicit sexual behavior” as “acts of sexual or deviate sexual intercourse… voluntarily engaged in by a spouse with someone other than the other spouse.”
- Alimony Terms. Alimony can be paid as a lump sum or in period payments for a specified or unspecified term, but ends when either party dies or if the recipient remarries or co-habitates with another adult. If alimony is awarded by a court, the dependent spouse may also be entitled to recover attorney’s fees.
- Alimony Modification. Alimony made in periodic payments can be modified due to changes in circumstances such as job loss, obtaining a higher paying job or anything else that significantly alters the current financial picture. If alimony is awarded prior to the division of marital property, either spouse can request that the alimony award be reevaluated once the property division is final. This is important when a home needs to be sold or there are significant investments they may produce income / losses in the near future.
- Tax Issues. Alimony is tax deductible by the supporting spouse and reported as income by the dependent spouse as long as the payments are in cash (not in kind), the payments are incident to divorce or a separation agreement, and the spouses are not living in the same household.