It’s not unusual, when a couple gets divorced, for one spouse to need some assistance while trying to become self-supporting. If the spouse who needs help (the dependent spouse) can show a need for financial support, and the other spouse (the supporting spouse) can afford to pay support, the court will make an order for spousal support, also known as alimony. Spousal support is intended to ensure that both spouses can maintain a standard of living as close as possible to the marital lifestyle.
Types of Support
In North Carolina, there are two types of spousal support. Post-separation support is a form of temporary financial support paid while the divorce is in process; alimony is the financial support one spouse pays to the other after the divorce is finalized. Either spouse can request post-separation support while the divorce is being resolved. The judge will look at each spouse’s income, earning abilities, financial need, and the marital standard of living.Post-separation support ends when the final judgment is entered; at that point the judge will either make an order that support is no longer necessary, or establish an order for permanent alimony. If the couple has signed a separation agreement or a prenuptial agreement waiving or agreeing to a certain amount of alimony, the court order will be consistent with those agreements .
Determining The Amount of Alimony
To determine the amount of alimony and how long it will last, the judge will look at a variety of factors. The court evaluates a number of factors:
- each spouse's relative earnings and earning capacity
- any marital misconduct
- each spouse's physical, mental, and emotional conditions
- the duration of the marriage
- the standard of living during marriage
- contributions by one spouse to the other’s education, training, or increased earning power, and
- the ability of each spouse to acquire education or training to become self-supporting.
If a North Carolina court finds that the dependent spouse was involved in “illicit sexual behavior” during marriage, then the court will not award alimony, even if there is a financial need. On the other hand, if the court finds that the supporting spouse was engaged in “illicit sexual behavior” during marriage, then it will automatically award alimony. North Carolina law 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.” If there’s evidence that one spouse engaged in illicit sexual behavior after the date of separation, the court will assume that there was similar behavior during the marriage, and the same rules will apply.
Once the court decides that alimony is appropriate, there are different ways for the support to change hands. Alimony can be paid in one lump sum, in monthly or quarterly payments, or even through a transfer of title to property.
Unless the payment is made in one lump sum, most orders will say how long alimony must be paid—or the order will simply say that the support payments last indefinitely. In that case, either spouse may ask the court to modify the alimony order based on changed circumstances. For example, the judge might terminate or lower the alimony payments if the dependent spouse becomes self-supporting or the supporting spouse loses a job. The court could also order an end to alimony if the dependent spouse cohabitates with another person or remarries. The death of either spouse automatically terminates alimony payments.
Tax and Other Issues
Alimony is tax deductible by the supporting spouse and reportable 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.
North Carolina does not have a set formula or guidelines for determining the amount of alimony—it’s up to the judge.
The dependent spouse may also ask the court to order the supporting spouse to pay for the dependent spouse’s attorneys fees in both post-separation support and alimony cases.