Alimony (sometimes referred to as "spousal support") is intended to provide financial assistance for a spouse who may need it during the divorce process and possibly for a time after the final divorce. If you or your spouse is (or will be) requesting alimony in your North Carolina divorce, you should understand how judges make alimony decisions, even if you hope to reach an agreement on the issue (more on that below).
There are two types of spousal support in North Carolina:
(N.C. Gen. Stat. §§ 50-16.1A, 50-16.2A, 50-16.3A (2023).)
Be aware that the amount of post-separation support might not be the same as the alimony award in the final divorce decree. In fact, getting post-separation support doesn't guarantee any post-divorce alimony. The judge will make separate decisions on both types of support based on the rules in North Carolina law (discussed below).
Typically, you'll request separate maintenance, alimony, or both in the divorce complaint (the legal document that starts the divorce process). If you don't ask for alimony while the divorce is in progress, you can't request it once the divorce is over.
The complaint is only one of a number of documents you'll need to file with the court when you start your divorce. So if you're planning to represent yourself, you should learn all about how to file for divorce in North Carolina.
North Carolina law doesn't provide a formula for calculating post-separation support or alimony. Instead, judges will use their best judgment, based on the facts of each particular case. However, there are certain factors judges must consider. Those factors are different for post-separation support and alimony awarded in a final divorce.
A judge must based any award for post-separation support on the spouses' financial needs, after considering all of the following factors:
As a general rule, the dependent spouse will be entitled to post-separation support if, in light of all those circumstances, the judge finds that spouse doesn't have enough resources to meet their reasonable needs, and the other spouse has the ability to pay the support.
However, before deciding whether to award post-separation support, the judge must also consider whether the dependent spouse engaged in "marital misconduct" before or on the couple's separation date. If that spouse was guilty of misconduct, the judge will also take into account any misconduct that the other spouse committed. The misconduct could affect the amount of support or whether the judge will award it at all. (N.C. Gen. Stat. § 50-16.2A (2023).)
As defined in North Carolina law, marital misconduct covers a wide range of behavior, including:
Abandonment doesn't simply mean leaving the family home. Rather, it happens when one spouse stops living with the other spouse as a married couple (known as "cohabitation") without a good reason or the other spouse's consent, and with the intention to end the marriage relationship. (N.C. Gen. Stat. § 50-16.1A(3) (2023); Sorey v. Sorey, 757 S.E.2d 518 (N.C. Ct. App. 2014).)
Before deciding whether to award alimony, the judge must take a crucial first step: determining whether either or both spouses engaged in illicit sexual behavior during the marriage (up to the separation date).
However, the judge won't consider a spouse's illicit sexual behavior if the other spouse condoned it—for instance, by continuing the marriage relationship even after learning about the behavior. (N.C. Gen. Stat. § 50-16.3A(a) (2023).)
Beyond the adultery issue, North Carolina judges must consider all of the relevant circumstances when making alimony decisions, including:
(N.C. Gen. Stat. § 50-16.3A(b) (2023).)
Either spouse may request post-separation support or alimony, regardless of gender. As long the basic eligibility requirements (discussed above) are met, the spouse with a higher income usually will pay alimony to the lower-income spouse.
North Carolina law offers different methods for paying court-ordered alimony, including:
If your spouse is supposed to make alimony payments directly to you but isn't meeting the court-ordered payment schedule, you can ask the court to enforce the award. You might also request that a judge hold your spouse in contempt of court, which could result in fines or even jail time. (N.C. Gen. Stat. § 50-16.7 (2023).)
Within the limits of North Carolina law, judges will decide how long alimony awards will last. But some of the rules are different for post-separation support and post-divorce alimony.
Post-separation support will end on the earliest of the following dates or events:
(N.C. Gen. Stat. § 50-16.1A(4) (2023).)
When a judge awards alimony, the order will state how long any periodic payments or income withholding should last. In most cases, alimony awards are aimed at helping the supported spouse become self-supporting after the divorce. That's one reason the payments typically are short-term, at least relatively speaking. However, after considering all of the factors that go into alimony awards, judges may order indefinite alimony in some cases, especially when a couple has been maried a long time and the dependent spouse isn't likely to become fully self-supporting due to advanced age, disability, or other circumstances.
Any spousal support in North Carolina—whether post-separation support or alimony—will automatically end when:
In this context, cohabitation means living with another adult "continuously and habitually," in a relationship that includes sexual relations as well as the type of mutual duties, obligations, and rights that you would normally see in a legal marriage. (N.C. Gen. Stat. § 50-16.9(b) (2023).)
The question of whether a relationship rises to the level of cohabitation depends on the circumstances of each case. In one North Carolina case, for example, a woman who was receiving alimony spent virtually every overnight with her boyfriend. Certainly sounds like cohabitation, right? After digging into the circumstances, however, the court ultimately decided that the woman and her boyfriend hadn't voluntarily assumed marital rights, duties, and obligations. She characterized money her boyfriend spent on her as loans, and she did repay him when she had the money. She also had her own residence, and neither she nor her boyfriend kept clothes or other personal items at each other's home. Based on those and other facts, the court decided there was no cohabitation, so termination of alimony wasn't warranted. (Setzler v. Setzler, 781 S.E.2d 64 (N.C. Ct. App. 2015).)
Either spouse may ask for a modification or termination of an existing post-separation or alimony order by filing a motion (written legal request) with the court. But in order to succeed, a requesting spouse must be able to prove that since the current order was issued, there's been a substantial change of circumstances that affects the receiving spouse's needs or the other spouse's ability to pay. (N.C. Gen. Stat. § 50-16.9(a) (2023).) (Britt v. Britt, 271 S.E.2d 921 (N.C. Ct. App. 1980).)
The involuntary loss of a job would likely qualify as a substantial change of circumstances, as would the fact that a spouse has become disabled. But a temporary change—such as when a spouse loses a job but soon finds another one at about the same salary—probably won't be enough to warrant a modification.
In most situations, unless you and your spouse have an agreement about the proposed changes, alimony modification proceedings involve complicated legal issues that are best handled by an experienced family law attorney.
If your divorce was final before 2019, the paying spouse may continue to deduct alimony payments for purposes of federal income taxes, and the receiving spouse must report those payments as income. However, for all couples who divorced after 2018, the federal Tax Cuts and Jobs Act eliminated any tax deduction or income reporting requirements for alimony. That means the Internal Revenue Service won't count these payments as income for the recipient, and the paying spouse won't get the deduction.
As with all other issues in your divorce, you and your spouse always have the option of reaching a settlement agreement that addresses whether one of you will pay alimony and, if so, how much the payments will be, and how long they will last.
If you're having trouble agreeing about any divorce issues, divorce mediation might help you resolve your differences. And if you're hesitant about negotiating a compromise, it may help to know that going to trial increases the cost of divorce exponentially, as well as making the process more stressful and take longer.
But if you haven't been able to reach an agreement even after mediation, you will probably need an experienced family law attorney to protect your interests and help you navigate your divorce. Here are some tips on meeting with potential lawyers and questions you should ask.