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Alimony and Postseparation Support


Determining Alimony  |  Marital Misconduct  |  Tax Implications  |  FAQs


Alimony is an amount of money that a supporting spouse must pay to a dependent spouse for his or her maintenance or support.

Alimony can be paid periodically or in a lump sum and for a specific term or for an indefinite period of time. The most common alimony scenarios involve monthly payments for a definite period of time. North Carolina does not have alimony "guidelines," meaning that there is no specific formula for determining the amount and duration of alimony. Instead, the judge evaluates the reasonable needs and expenses of each party as well as the ability to pay of the supporting spouse.

Determining Alimony

The court has great latitude in determining the amount and duration of alimony in each case. In making that determination, the court will consider any relevant factor, including:

  1. The marital misconduct of either of the spouses;
  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 sources of earned and unearned income of both spouses;
  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, State, and local tax ramifications of the alimony award;
  15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
  16. The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

Marital Misconduct

Alimony is an area of law in which the court considers the marital misconduct of either spouse. Due to the history of the alimony statute, you may hear "marital misconduct" referred to as "marital fault." Marital misconduct means the following, although illicit sexual behavior is the only type of marital misconduct which has an absolute effect on alimony:

  1. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviant sexual intercourse, deviant sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse;
  2. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
  3. Abandonment of the other spouse;
  4. Malicious turning out-of-doors of the other spouse;
  5. Cruel or 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.

Tax Implications

Unless specifically negotiated otherwise, alimony is generally taxable to the payee (the spouse receiving the alimony) and tax-deductible to the payor (the spouse paying the alimony). This can have a significant effect on the actual financial impact of an award of alimony. It is imperative that you and your attorney consider the tax implications of an alimony payment. For example, a dependent spouse cannot spend every penny of her alimony payment each month because she will have to set some aside to pay the tax liability. Likewise, a supporting spouse who is paying alimony may need to change his withholdings to take into account that he will have less tax liability than he had when he did not pay alimony.


FAQs

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What is the effect of having an affair on alimony?

If the court determines that a dependent spouse engaged in illicit sexual behavior prior to the date of separation, then the court cannot award alimony. Therefore, adultery prior to the date of separation acts as an absolute bar to alimony for the dependent spouse. If the court determines that a supporting spouse engaged in illicit sexual behavior prior to the date of separation, then the court shall order alimony to be paid to the dependent spouse.

My husband makes a lot more than I do, but he did not cheat on me. Can I still get alimony?

You do not have to prove that a supporting spouse engaged in illicit sexual behavior to receive alimony. If you are a dependent spouse and your spouse is a supporting spouse, the court can award alimony based on the reasonable needs and expenses and the ability to pay of the supporting spouse.

Can alimony be modified?

Orders for alimony can typically be modified upon showing that there has been a substantial change in circumstances by either party. There are legal avenues to agree to make alimony non-modifiable in the future, thereby preventing a dependent spouse from seeking an increase in alimony and preventing a supporting spouse from seeking a decrease. There are pros and cons to non-modifiable alimony. You should discuss with your attorney whether making alimony non-modifiable is feasible or advisable in your case.

How long will I receive/have to pay alimony?

There is no rule or formula as to the duration of alimony; however, the duration of the marriage is often significant in the court's determination of the duration of alimony. You may read on other websites or hear others say that half the length of the marriage is the "rule of thumb." The reality is that the "rule of thumb" is only a guidepost if your particular judge follows it. The judge has wide discretion in determining the duration of alimony payments in each case.

It sounds like I might be receiving/paying alimony for a long time. Are there any events that would cause the alimony to terminate before the term that was ordered or agreed upon ends?

Yes. Alimony and postseparation support terminates upon the remarriage or cohabitation of the dependent spouse. It also terminates upon the death of either party. If you are receiving alimony, it is important that you consider obtaining life insurance on the life of the supporting spouse with your attorney as security for the future alimony. For purposes of terminating alimony payments, "cohabitation" means the act of two adults living together continuously and habitually in a private heterosexual or homosexual relationship.

What is Postseparation Support?

Postseparation support (PSS) is like "temporary alimony." It is negotiated or awarded after an abbreviated hearing. An award of postseparation support terminates upon the following events:
  1. The date the court determines the PSS will end
  2. The entry of an order awarding or denying alimony
  3. The dismissal of the alimony claim
  4. The entry of the divorce judgment if there is not a claim for alimony pending at the time of the divorce judgment
  5. The occurrence of one of the terminating conditions