In North Carolina, alimony is a payment by a supporting spouse to a dependent spouse for support and maintenance.
Alimony and post-separation support are available in North Carolina without any fault. This is the result of a change in the law that took effect in 1995. While fault is not required, it maybe considered when deciding if alimony is available. For instance, a dependent spouse may lose his or her right to alimony if he or she committed adultery.
- What constitutes marital fault?
- Illicit sexual behavior: adultery and unnatural sexual acts;
- Involuntary separation as a result of a spouse’s criminal act;
- Abandonment (without justification, without consent, and without the intent of renewing cohabitation);
- Maliciously kicking a spouse out of their home;
- Cruel treatment that endangers a spouse’s life;
- Creating conditions that leave the spouse to live in intolerable and burdensome conditions;
- Recklessly spending income of the other spouse, or destruction, waste, or concealment of marital assets;
- Willfully failing to provide necessary items, such as food or lodging.
When should I make a claim for alimony?
The time for applying for alimony must be reasonably related to an action for divorce. A claim for alimony must occur prior to a judgment of divorce; however, a pending claim for alimony can survive a judgment of divorce. It must, however, be resolved in a timely fashion.
Can I claim alimony if I am already divorced?
Parties must still be married for a spouse to claim post-separation support or alimony. Therefore, a claim for divorce must at least be pending upon a judgment of divorce being entered. However, if a judgment of divorce was entered in another state, and that state does not have jurisdiction over the dependent spouse, it does not affect a spouse’s right to seek alimony in North Carolina.
Am I eligible to receive alimony in North Carolina?
The dependent spouse must show that he or she does not have the financial ability to meet his or her reasonable needs.
How does the court determine the amount of alimony owed?
The court must look at several factors in determining the amount and duration of alimony. These factors are:
- A spouse’s marital misconduct;
- Relative earnings of the spouses at the time of alimony proceedings;
- Age and physical/mental/emotional health of the spouses;
- Duration of the marriage;
- Amount of income for each spouse, both earned and unearned;
- A spouse’s contribution to the other spouse’s education and training;
- Custody of a child, including expenses and effect on earning power;
- Standard of living created during the marriage;
- Each spouse’s education and employment opportunities;
- Assets and liability of each spouse;
- Property brought into the marriage by each spouse;
- Needs of each spouse (such as food, clothing, and lodging);
- Tax liability created by alimony awards;
- Property previously divided as part of the divorce proceedings;
- Any other economic factors affecting a spouse that the court finds just and proper.
Are attorney’s fees included in an award of alimony?
Attorney’s fees may be awarded in a judgment on alimony; however, it is entirely in the court’s discretion. The court may even decide to add attorney’s fees during an appeal of an alimony order.
Is alimony only cash payments?
While typically cash payments, alimony may also include personal property or an interest in real estate.
How long will I have to pay alimony?
An order for alimony may include an expiration date. However, alimony will also end upon the occurrence of:
- Parties resuming their marriage
- Dependent spouse remarrying
- Dependent spouse living with another adult as if they are married; or
- Either the dependent or supporting spouse dying.
Parties may negotiate around these terminating events by a separation agreement.
How will alimony affect my taxes?
Typically, alimony payments are deductible from a supporting (or paying) spouse’s taxes. They are treated as income for the tax purposes of the dependent (or receiving) spouse. Some spouses may choose to create a private alimony agreement to avoid tax liability. However, as long as five factors are met, the spouses cannot avoid these federal and state taxes. These factors are:
- Payments in cash (rather than through property);
- The duty to pay is created by divorce or a separation agreement;
- The payment is not for non-alimony purposes;
- The parties do not live together;
- The dependent spouse is living.
My spouse and I are still amicable, can we forego alimony?
A valid separation agreement may waive alimony and post-separation support.
Will a prenuptial agreement affect my claim for alimony?
A prenuptial agreement may modify or eliminate spousal support; however, those provisions may be void if it causes a spouse to be eligible for public assistance.
Do I have to pay alimony if my spouse engaged in illicit sexual behavior?
A dependent spouse’s illicit sexual behavior is an absolute bar to alimony, but may not be an absolute bar to post-separation support. However, it will not be a bar if the supporting spouse has also engaged in illicit sexual behavior. When this occurs, alimony is within the court’s discretion. There are certain circumstances in which a dependent spouse may admit adultery and still receive alimony; for instance, if the supporting spouse condoned the illicit sexual behavior.
Can I refuse to testify about adulterous acts?
The United States and North Carolina Constitutions guarantee a right against self-incrimination. This right protects an individual from giving information that could later be used in criminal prosecution. However, in North Carolina, a spouse’s choice not to testify will be used, for alimony purposes, to bar his or her claim.
Can alimony payments be modified?
A court order for alimony may be modified or vacated upon a showing that the circumstances of either party have changed. However, North Carolina courts cannot modify an alimony order from another state. To facilitate a showing of change in circumstances, it is important to make sure the original order lists a detailed finding of financial circumstances of the parties.
How can I make sure my spouse follows a court order to pay alimony?
North Carolina statutes provide a number of remedies. These remedies include arrest; attachment and garnishment of wages; injunction orders; civil and criminal contempt; and others. These remedies may even be available during an appeal of an alimony order. Additionally, past due periodic payments of alimony can be treated as a judgment lien against property upon a court order. When garnishing wages, the dependent spouse is essentially treated as a creditor of the supporting spouse.
How can I make my spouse follow a separation agreement for alimony?
Contract law governs separation agreements. Therefore, unless incorporated into a court order, the parties must consent to modify the contract. Additionally, the contract terms may allow or prohibit modifications.
What other methods are available for securing an alimony obligation?
An alimony obligation may be secured by bond, mortgage, deed of trust, or other security device. This obligation may also be secured by assigning a right to the supporting spouse’s wages or income. Also, it may be secured by a security interest in real estate for the benefit of the dependent spouse or a transfer of title of the property. All of these options are within the discretion of the court.
What happens if my spouse violates a court order?
A party that violates a court order can be held in contempt of court and may even serve time in jail. This includes orders relating to alimony, custody, and child support. To be held in contempt, the court must have ordered that party to do something, the person failed to comply, and the person must have been actually capable of complying with the order. Contempt of court does not merely punish bad behavior.
There are two types of contempt. Civil contempt is used to motivate a party to comply with an order. Civil contempt allows the offending party to resolve the offense. For instance, a spouse who fails to make alimony payments may get out of a civil contempt charge by paying the overdue amount. Criminal contempt, on the other hand, is used to punish. It is typically used when there are multiple or repeated offenses. Criminal contempt could result in jail time.