Understanding and Calculating Alimony in North Carolina

Alimony (sometimes called "spousal support") is meant to provide financial assistance for a spouse who may need it before and after divorce. If you or your spouse is requesting alimony in your North Carolina divorce or while you're separated, you should understand how the judge would make a decision—even if you hope to reach an agreement on the issue.

Types of Alimony in North Carolina

There are two types of spousal support in North Carolina:

• postseparation support provides a dependent spouse with financial support after a couple is separated and before they're divorced, and
• alimony awarded in the final divorce (known as "absolute divorce" in North Carolina) or a "divorce from bed and board" (the state's term for which is essentially a court-ordered legal separation when one spouse has engaged in certain types of misconduct).

(N.C. Gen. Stat. § 50-16.1A (2024).)

The amount of postseparation support might not be the same as the alimony award in the final divorce decree. In fact, getting postseparation 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).

How to File for Postseparation Support or Alimony in North Carolina

If you're filing for absolute divorce or divorce from bed and board, you'll typically request postseparation support, alimony, or both in your complaint (the legal document that starts the divorce process). If you don't ask for alimony while the divorce is in progress, you won't be able to request it after the divorce is final.

Either spouse may also need financial support long before starting the divorce process. That's because North Carolina requires couples to live "separate and apart" for at least a year before they may file for absolute divorce. So the state also allows spouses to file a request or sign an agreement for postseparation support while they're separated and before they file for divorce. (Learn more about separation in North Carolina, including the requirements for being considered legally separated.)

How Judges Decide on Postseparation Support and Alimony

North Carolina doesn't provide a formula for calculating postseparation support or alimony. Instead, judges use their best judgment after considering the circumstances in each particular case. But the specific considerations that will go into their decisions are different for postseparation support and alimony.

Determining Postseparation Support

Judges in North Carolina will decide on a request for postseparation support based on both spouses' financial needs, after considering:

• the couple's standard of living during the marriage
• each spouse's earnings and ability to earn
• each spouse's debts, including separate debts and those they owe together
• each spouse's reasonable expenses, and
• each spouse's legal obligation to support someone else (such as a former spouse or child from a previous relationship).

As a general rule, the dependent spouse will be entitled to postseparation support if, in light of all those circumstances, the judge finds that the spouse doesn't have enough resources to meet their reasonable needs, and the other spouse can pay the support.

However, before deciding whether to award postseparation 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 consider any misconduct that the other spouse committed. The misconduct could affect the amount of postseparation support or whether the judge will award it at all.

(N.C. Gen. Stat. § 50-16.2A (2024).)

As defined in North Carolina law, marital misconduct covers a wide range of behavior, including:

• "illicit sexual behavior," such as adultery
• abandonment of the other spouse
• maliciously forcing the other spouse out of the marital home
• reckless spending or wasting, hiding, or destroying assets
• making the other spouse's life intolerable through substance abuse, willfully failing to provide necessary support, or other "indignities"
• cruel treatment that endangers the other spouse's life, and
• involuntary separation because of a previous criminal act.

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 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) (2024); Sorey v. Sorey, 757 S.E.2d 518 (N.C. Ct. App. 2014).)

Determining Post-Divorce Alimony

North Carolina law includes an unusual requirement before a judge may award post-divorce alimony: The judge must determine whether either or both spouses engaged in illicit sexual behavior while they were married and before they separated.

• If the spouse requesting alimony was guilty of adultery or other illicit sexual behavior, the judge must deny alimony, even if that spouse would otherwise qualify for it.
  If the other spouse engaged in that behavior, the judge must order that spouse to pay alimony.
• If both spouses committed illicit sexual behavior during the marriage, the judge has leeway to decide whether or not to award alimony after considering all the circumstances.

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.

Beyond the adultery issue, North Carolina judges must consider all of the relevant circumstances when deciding whether to award alimony and, if so, how much and for how long. Those considerations must include:

• either spouse's other marital misconduct
• each spouse's relative earnings, unearned income, and earning capacity
• each spouse's assets and liabilities, including legal support obligations
• each spouse's relative needs
• both spouses' ages and physical, mental, and emotional health
• the length of the marriage
• the couple's standard of living during the marriage
• each spouse's level of education
• how much time it would take to get the job training or employment the dependent spouse would need to become self-supporting
• a spouse's contribution to the marriage as a homemaker
• one spouse's contribution to the other's education, training, or increased earning power
• how much having child custody affects the earnings power, expenses, or financial obligations of a custodial parent
• the property each spouse brought to the marriage
• whether the judge previously considered either spouse's income when distributing the couple's property in the divorce, and
• the tax consequences of alimony (more on that below).

(N.C. Gen. Stat. § 50-16.3A (2024).)

Who Pays Alimony?

Either spouse may request postseparation support or alimony, regardless of gender. As long the basic eligibility requirements are met, the spouse with a higher income usually will pay alimony to the lower-income spouse.

How to Pay and Enforce Alimony in North Carolina

North Carolina law offers different methods for paying court-ordered alimony, including:

• periodic payments (usually monthly)
• income withholding (that is, having the alimony payments automatically taken out of the paying spouse's wages), or
• a lump-sum payment, either in cash or by transferring ownership of the paying spouse's personal property or real estate to the alimony recipient.

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 (2024).)

How Long Does Alimony Last in North Carolina?

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.

Duration of Post-Separation Support

Post-separation support will end on the earliest of the following dates or events:

• when a judge enters an order awarding or denying alimony, or dismisses a spouse's alimony request
• the end date shown in the post-separation support order, or
• when a judge enters a divorce judgment, if there's no pending alimony claim.

(N.C. Gen. Stat. § 50-16.1A(4) (2023).)

Duration of Alimony Awards

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 married a long time and the dependent spouse isn't likely to become fully self-supporting due to advanced age, disability, or other circumstances.

When Post-Separation Support or Alimony Ends Automatically

Any spousal support in North Carolina—whether post-separation support or alimony—will automatically end when:

• either spouse dies, or
• the spouse receiving support remarries or is cohabiting with a new partner.

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) (2024).)

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).)

How to Modify Alimony in North Carolina

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 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) (2024); 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.

Taxes and Alimony

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.

Alimony Agreements, Mediation, and Legal Help

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.

When 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.