Most people realize that following a divorce, both spouses will continue to have an obligation to support and care for the children – but what about caring for and supporting your ex-spouse? Spousal support, also known as alimony, is one of many issues that couples will confront during the divorce process. It’s also one of the issues about which couples often have many questions – and that’s understandable.
Questions that often arise concerning alimony and spousal support include:
- Am I automatically obligated to support my ex-spouse after a divorce?
- Will my alimony obligation continue indefinitely?
- Will a stay-at-home spouse be required to return to work and earn income after a divorce?
- Can a couple agree to an alimony amount and payment schedule in an out-of-court divorce settlement?
- Can an alimony obligation be modified?
These questions about important to ask – and they are only a few of many. As with so many legal matters, the answers will often vary depending on your unique circumstances. It can be helpful, however, to understand the basic aspects of the law pertaining to alimony in North Carolina, and how a court might consider your case.
A Closer Look at the Law
In its most basic terms, alimony is money that a “supporting spouse” (usually the higher earner) pays to the dependent spouse (usually the lower earner). North Carolina State law defines a “dependent spouse” as “a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.”
Alimony is not automatically provided or guaranteed as part of a divorce in North Carolina. The parties can either discuss or agree to alimony as part of their divorce settlement, or it can be determined by a court, at its discretion.
In North Carolina, there are generally two types of support provided by one spouse to another, which include:
- Post-Separation Spousal Support: Post-separation support used to be referred to as “temporary alimony”. It refers to money that the higher-earning spouse typically pays to a dependent spouse until the divorce is finalized and a permanent amount of alimony is determined.
- Alimony: Alimony itself is more permanent. It is money that one spouse pays to another in an amount and for a period of time agreed upon by the parties, or determined by the court.
Alimony can be paid either as a lump sum or in periodic payments for a specified amount of time. Typically, alimony ends when either spouse dies, or if the dependent spouse receiving the alimony remarries or cohabitates with another adult in a romantic relationship. The supporting spouse may deduct alimony payments from his or her taxes, and the receiving spouse must typically report alimony as income.
The amount of alimony and a payment schedule can be determined in one of two ways – either by agreement of the parties or by a judge. Let’s take a closer look at both options together.
Addressing Alimony by Agreement
As with most issues that couples will confront during the divorce process, a couple can choose to negotiate and resolve the issue of alimony outside of a courtroom. Now more than ever, couples choose options like mediation, collaborative law, or lawyer-led settlement negotiations to find solutions that work best for their family.
Reaching an agreement on alimony and other issues outside of court is often highly preferable for a variety of reasons. It reduces the stress, expense, and time that courtroom litigation often requires, and it gives couples the freedom and flexibility to reach an agreement that they feel satisfied with. After all, no one knows your family as you do. You know your children, your routines, and your family dynamic. Why shouldn’t you be the one to decide your issues in a way that works best for your family?
While it isn’t always stress-free, negotiating an agreement on alimony and other issues out of court is possible if both spouses are willing to work cooperatively together and communicate openly and honestly. If this is possible, a couple can determine alimony payment amounts and a schedule that suits both parties. It may take some negotiation, but it is always a wonderful option if possible.
What to Consider in the Courtroom
In some cases, for any number of reasons, a couple is unable to agree about alimony outside of the courtroom. In those cases, the best option may be to allow a judge to make that decision. It can be helpful to understand what factors a court might consider, and what you might be able to expect in this situation.
In attempting to determine an alimony obligation, courts will typically look at a variety of factors. There are no definite guidelines as to how much weight each factor should be given, and as a result, when a court determines an alimony amount, it has a great deal of discretion in making that decision.
Generally, a judge will look at the entire marital picture, including elements like:
- How long the couple was married;
- How much each spouse earns or may potentially earn;
- The age and health of each spouse;
- All sources of income that each spouse receives;
- How much one spouse contributed to the education and career advancement of the other (e.g. one spouse who worked to pay the other spouse’s way through medical school);
- Which spouse will primarily have custody of the minor children;
- The standard of living the couple enjoyed during the marriage;
- The training that a dependent spouse may need to find employment;
- Marital misconduct by either spouse;
- The property, if any, that either spouse brought to the marriage;
- The general needs of either spouse;
- The tax impact of any alimony award;
- Any other factors that the court, at its discretion, considers relevant.
Although North Carolina courts do not consider marital misconduct for divorce proceedings, marital misconduct can play an important role in alimony calculations. Marital misconduct might include any of the following behaviors either during the marriage or before the date of separation:
- Illicit sexual behavior;
- Involuntary separation of the spouses as a result of a criminal act committed by one spouse;
- Abandonment of a spouse;
- Maliciously turning one spouse out of the home;
- Cruel or barbarous treatment endangering the life of the other spouse;
- Indignities that make life burdensome and intolerable for one spouse;
- Excessive use of alcohol or drugs by one spouse;
- A willful failure by one spouse to provide according to his or her means;
- Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- Other behavior, that the court, at its discretion, may find falls into one of the foregoing categories.
It is also important to understand that in North Carolina, a court will not award alimony if it determines that the dependent spouse was engaged in “illicit sexual behavior” either during the marriage or on the date of separation, regardless of his or her financial needs. On the other hand, if the court finds that a supporting spouse was engaged in illicit sexual behavior, then the court will automatically award alimony to the dependent spouse. 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 alimony is awarded by a court, the dependent spouse may also be able to recover attorney’s fees, if approved by the court. It is important to understand that once a court sets an alimony obligation, that obligation will remain in effect until either all payments are made through the date set by the court, or until the order is modified by the court.
Can an Alimony Obligation be Modified?
Circumstances can change, as everyone knows. As a result, there are times when one spouse or the other, for any number of reasons, may seek to modify an alimony obligation. In those cases, whether and how alimony can be modified will depend upon how it was determined. If the parties created a spousal support obligation by agreement, then they may modify that agreement at any time they desire. This freedom and flexibility is one of many reasons that couples prefer to resolve their divorce issues outside of court. If a court determined alimony, on the other hand, the only way that an alimony obligation can be modified is by the court itself.
THE LAW OFFICE OF DUSTIN MCCRARY – YOUR NORTH CAROLINA DIVORCE ATTORNEY
During the divorce process, you’ll confront many difficult issues – and alimony is only one of many. The good news though, is that although the issues may be difficult, you have a choice about how you confront and address those issues. You can choose to approach the divorce process confidently, and with the knowledge that you can work successfully toward resolving these matters and moving forward. At The Law Office of Dustin McCrary, we’re here to help you do exactly that. We understand every aspect of the divorce process, and we’re passionate about helping every client through this journey and onto a better and brighter chapter ahead. If you’re ready to get started, give us a call. We look forward to helping you soon.