Spousal Support After a Divorce
In North Carolina, spousal support may be awarded to a party when it can be demonstrated that he or she was dependent on the other spouse, meaning that the other spouse was providing financial support during the term of the marriage.
Generally, the spouse who earns less income is considered to be dependent on the other spouse. However, there can be many variables in the final determination on the amount of spousal support ordered. The court can order spousal support payments as monthly payments or a lump sum payment in satisfaction of the alimony obligation. Most alimony claims are settled outside of court in a privately negotiated separation agreement.
Financial circumstances can change abruptly or over a period of time. Life is subject to many varied events that can cause changes in finances. Spousal support payments can be modified in certain situations. At such a time, an attorney can assist you by petitioning the court for modifications to an existing divorce agreement.
Your legal rights need to be protected when your spousal support amounts are calculated, whether the case is resolved in in court or through negotiations with the opposing attorney.
The Raleigh law firm of Charles R. Ullman & Associates understands the financial repercussions of divorce, separation and spousal support issues. Our attorneys have experience with the North Carolina laws that affect you at this time of turmoil. We’ve helped numerous Wake County residents, including clients from Raleigh and Cary.
Speak with an experienced North Carolina divorce attorney from our firm today so that you can fully understand all the factors involved in your spousal support matters, and ensure that your best interests are protected by a skilled attorney with extensive experience in crafting or litigating these agreements.
Factors in Spousal Support Agreements
The court may award spousal support to either the husband or the wife in a North Carolina divorce. The person who pays spousal support is called the “supporting spouse,” and the person who receives support is called the “dependent spouse.” The court may order periodic payments or a lump sum.
A judge will award spousal support only when one spouse requests this form of support. If the other spouse opposes the request for spousal support, the judge must then decide which spouse has adequately proven the need or lack of need.
There are a number of factors reviewed by the court when determining spousal support amounts and whether it should be awarded at all. There are a number of factors reviewed by the court when determining spousal support amounts and whether it should be awarded at all. Add – Alimony is discretionary in the amount paid and how long the alimony payments are made. Some of these include:
- The length of the marriage.
- Whether any marital misconduct was involved.
- Age of both parties at the time of divorce.
- Physical and mental condition of each spouse.
- Educational background of both spouses.
- Both spouses’ earning potential and history.
- Standard of living during the marriage.
- Current income and potential income.
- Contribution of one spouse to the education, training or increased earning power of the other spouse.
- Current expenses and needs.
- Marital and non-marital property.
- The child custody arrangement.
- Whether either party has existing spousal support obligations.
Frequently Asked Questions
Child Support and Spousal Support
Simply put – no. Child custody/visitation rights and child support obligations are two different matters. You need to keep paying child support. Meanwhile, you can take other steps to protect your right to spend time with your child. Child support is determined by either agreement of the parties in a divorce settlement or by a court order. If you stop making these payments, you could face a contempt of court charge, breach of contract lawsuit, garnishment of your wages or other consequences. So, continue paying (unless a job loss or other reason requires you to seek a modification of your child support obligations). If you have visitation rights, it is because a court agreed that it was in the best interest of the child. Whether they were stipulated to in a separation agreement or ordered by a court, your visitation rights must be honored by your spouse. In other words, unless a court finds that visitation does not meet the child’s best interest, you are entitled to visitation regardless of what your spouse wants. You can pursue contempt of court or contract remedies to enforce your rights if your spouse refuses to honor them. In many cases, this is a matter that can be resolved outside of court through negotiations between attorneys. To learn more, please see our pages on Child Support and Child Custody and the N.C. General Statutes on support and custody issues.
According to North Carolina law, “a judgment of absolute divorce obtained by the dependent spouse in an action initiated by him or her eliminates that spouse’s right to alimony unless a claim for alimony has been asserted and left pending prior to the judgment, either in that action or an earlier action.”
In other words, any spousal support (alimony) filing should be made before a divorce is granted. Failure to bring an alimony claim before the entry of a divorce judgment will bar the right to bring a claim for alimony afterwards. And before you decide to end your marriage, it’s crucial to seek legal advice and representation from a competent Raleigh divorce lawyer right away, as alimony awards are determined based on many factors.
The first factor to be considered is your financial dependence on your spouse. Under NC alimony law, you are typically considered to be “actually substantially dependent” if you can demonstrate that after the divorce you will be unable to maintain the standard of living established under your marriage without spousal support payments. Exceptions, however, notably an extramarital affair, can nullify your right to spousal support.
As for the duration and amount of alimony, North Carolina law lists 16 alimony award factors. They include both spouses’ earnings and earning capacities, the marriage duration and each spouse’s assets, debts and liabilities. Alimony, furthermore, may be paid in a lump sum or regular installments and for a limited or specified term.
Finally, if you are separated but not yet divorced from your spouse, you may still qualify for what’s known as post-separation support, which can provide you with money awards until a permanent alimony agreement is reached.
The different types of North Carolina alimony and how spousal support payments are determined are complex matters that legal help from Charles R. Ullman & Associates will help you understand. While your goal may be to maximize alimony, your spouse’s might be just the opposite, and we will fight to protect your interests.
To begin with, you need to understand the two types of separation that apply to North Carolina marriages.
Absolute divorce—the termination of a marriage—must be preceded in North Carolina by a separation of one year of living “separate and apart” (in two different households).
During this time, either spouse can request what’s known as “post-separation support.” Couples may work out privately the terms of this support (in what’s known as a “separation agreement”) if they can come to terms on it, or it can be left up to the courts to decide the amount and duration of alimony. The conditions of the post-separation support may continue when the divorce is finalized, or permanent alimony may be established for the post-divorce period.
Another type of separation, “divorce from bed and board,” is a legal separation, or “limited” divorce. While it does not allow the spouses to remarry, it does entitle the parties to certain “incidents,” such as alimony. You might consider a divorce from bed and board if the other spouse refuses to enter into a separation agreement. This type of divorce, though, is fault-based, so you must prove injury on one of six fault grounds.
In any type of separation, calculating the proper amount of alimony can be complex. Often, the other spouse will challenge the amount and/or offer legal objections. A Raleigh separation attorney can advise you of your rights and options and aggressively advocate for your interests throughout the separation and divorce processes.
If you agreed to pay alimony in a separation agreement or were ordered by a court to do so, then you need to keep making those payments. Otherwise, you could face serious consequences. Still, relief may be possible.
If you fail to make your spousal support payments, then you could face a contempt of court citation or a breach of contract lawsuit. So, when you find yourself struggling to keep up with these payments, you need to get legal help right away and address your situation.
An attorney can help you to seek a court order to modify your alimony payments due to a change in your circumstances such as a loss of employment. A lawyer could also seek to negotiate reduced payments with your former spouse’s attorney.
Parents can reach a child custody agreement out of court, and in most cases, they should. Otherwise, a court custody decision is left to the sole discretion of the judge, and appeals are very limited in these types of cases. Our Raleigh divorce lawyers have extensive experience negotiating these agreements, which are often reached with the assistance of a neutral facilitator/mediator. We will protect your parental rights and interests through the negotiation process and, if need be, in court.
Among the matters to be determined in a child custody agreement are physical and legal custody and visitation schedules. Physical custody refers to where the child actually lives, while legal custody describes who makes important decisions on the child’s behalf. In both cases, joint custody (in which the parents share the physical and legal responsibilities) is possible, and while the law presupposes that each parent has equal custody rights, the splits don’t have to be equal. When one parent is granted sole custody of the child, however, visitation privileges must also be determined.
Within the issues of custody and visitation are further legal nuances that need to be established in a written document. Child support, for instance, may be paid by one party depending on a variety of circumstances, while supervised visitation can be granted if one parent has questionable parental status. The two divorcing spouses may also wish to come to an agreement on a parenting plan, which describes how the parties will raise their child/children.
If you can’t reach an out-of-court custody arrangement, you will need to go to court, at which point the “best interest of the child” will be the primary consideration for all custody matters. Of course, your interests are also important, and you may be privy to information that shows your former spouse is not a good choice for custody or visitation.
However, even after the court reaches a final custody decision, a custody order may be modified. During and after custody agreement negotiations, Charles R. Ullman & Associates are here to serve your—and your child’s—best interests.
Enforcing, Modifying and Ending Spousal Support
The spouse who is ordered to pay spousal support by the court, or has had an agreement approved by the court, has a legal duty to meet his or her obligations. Failing to pay spousal support after being ordered by the court can carry serious consequences.
In such a case, payment on the part of the supporting spouse can be enforced through the court system, and the spouse who has failed to pay faces serious consequences, including being charged with contempt of court. In some cases, it may be necessary to take other legal actions based on the facts.
Supporting spouses who are having trouble making spousal support payments should seek a modification of the agreement instead of simply failing to pay support.
Charles R. Ullman & Associates has helped many clients dealing with difficult divorce issues in Raleigh, Cary and throughout Wake County. Our firm includes a Certified Specialist in Family Law and skilled divorce attorneys who have handled all aspects of divorce, from simple divorces to the most complex litigation.
Please contact our firm today so we can discuss your current situation and advise you on how to move forward.
- North Carolina General Assembly: Divorce and Alimony