Similar to child custody and child support orders, post-separation support orders or alimony can be modified even after a divorce has been ordered and finalized by the court. Spousal support or alimony is a court-ordered provision requiring the supporting spouse to financially support the dependent spouse. It is often referred to as post-separation support, which is just a fancy way of saying alimony, but it is only for a finite period of time. In order for a spouse to prove their entitlement to alimony, they must prove [1] that they are dependent upon the other spouse’s financial support to sustain their quality of living; and [2] that an award will be equitable or fair once all of the relevant factors of the case have been considered. Once a court order has been issued granting alimony or post-separation support, NC Gen Stat § 50-16.9 governs all subsequent modifications.

Can the Court Enforce and Modify our Agreement?

While an order for alimony can be modified despite the finalization of a divorce, a court can only provide modifications if the agreement between the parties has been registered with the court.   Registering the document with the court after both parties have come to an agreement gives the court the power to ensure that parties comply with the terms of the arrangement. Although filing the agreement with the court is a positive step in the right direction, this action is not absolute. It is always a good idea to have an attorney look over agreements for alimony or post-separation support to ensure that other legal doctrines have not been incorporated to the agreement. For example, although NC Gen Stat § 50-16.9 governs modifications, terms of the agreement dealing with property are not enforceable in an alimony agreement. Distribution of property is covered under the legal theory equitable distribution, and there are important rules and regulations that must be followed to ensure the successful distribution of property. In the long run, a poorly drafted post-separation support agreement may create a strong possibility that the agreement is unenforceable in matters concerning distribution of the couple’s property. When in doubt, consult an attorney.

What is the Standard for Receiving a Modification to my Alimony Payments?

The law allows a court order for post-separation support or alimony to be vacated or modified if there is proof and an adequate showing of a “changed circumstance.” A changed circumstance typically means that there have been changes in the financial circumstances of the parties, but finances are not the only reason for the court to find a change in circumstance. North Carolina law takes this a step further and requires any alleged change of circumstances to be “substantial.” Unfortunately, determining whether the change has been substantial is relatively in the discretion of the presiding judge. For example, in Bailey vs. Bailey, Jerry (the supporting spouse) had a reduction in income, but that reduction was coupled with an “increased standard of living.”  Pamela (the dependent spouse) did not have a substantial change in monthly expenses, standard of living, and earned income since the date of the original order. The court found that those circumstances prevented Jerry from meeting the standard of a substantial change in circumstance. Pamela’s inability to meet her reasonable monthly expenses proved that the circumstances of the parties had not changed substantially.

What If There is Proof of a Change in Circumstances?

In the event that the facts dictate that a change in circumstances has occurred, the court must issue a new order for support. In order to determine the new amount, the court will consider the needs of the party receiving the support (dependent spouse) and compare them to the ability of the supporting spouse to pay the necessary funds to maintain his/her quality of living. The court will consider all relevant economic factors, but not moral misconduct that happened during the marriage. Relevant economic factors may include the addition of a new child for the supporting spouse, which would take away from their income and ability to make alimony payments. The court could consider economic advancement by the dependent spouse. Things like an increase in salary, which will decrease the necessity for support, are key factors for the court to consider in a modification order. While these factors are important in the court’s decisions, they are not an exhaustive list of the factors that the court will address. Please be mindful that the judge’s perception of the need for support will dictate the necessary modification order.

For example, in Pierce vs. Pierce, the court found that an increase in alimony was equitable because while the dependent spouse’s situation had worsened (attributed to increased credit card debt) the supporting spouse’s situation had improved. His living expenses had increased, but the court found these increases in expenses to be “discretionary.” The court held that expenses for take-out, purchasing extravagant cars and clothes, and entertainment expenses hardly constitute a detrimental decrease in the spouse’s economic abilities to pay alimony. As a result, the court ordered a modification giving an increase for the dependent spouse.

The court can also order a decrease in support if the facts of the case warrant that order. Typically, the supporting spouse will need to show that the dependent spouse has decreased their need for support. This includes facts like decreased expenses due to the spouse’s home or car payments being paid in full; increased income due to a job promotion; or support from a new spouse. In Honeycut vs. Honeycut, the trial court held that Patricia was no longer a dependent spouse, and that alimony was no longer needed to assist in maintaining her quality of life. Patricia’s needs had declined since 1991 since she owned a home, her car was paid in full, she had Medicare to cover her medical expenses, and she had no household help (maid service, gardener, etc.). Patricia’s investments and Social Security payments were enough to provide for her needs, but in the event that she met hardships, she could easily sell the house and move to a more suitable residence if she needed additional resources.

What Exactly Constitutes Income and Expenses?

In a modification for alimony, the court considers all forms of income. This includes support that the spouse receives from third parties. It is not uncommon for a dependent spouse to ask for an increase in alimony upon the supporting spouse’s remarriage to a third party. While the court will never consider contributions from a new spouse as income, they can consider the effects that this income will have on the spouse’s quality of living. However, a supporting spouse must be careful as there are certain actions that will bar the modification of an alimony order. For example, a supporting spouse cannot intentionally decrease his or her income for the purpose of avoiding payments and expect a modification to work in his or her favor. The court is also very savvy in that it considers certain factors at the time of the original order. If those factors are the dominant reason for either spouse requesting a modification, there is a high likelihood that the modification will be denied.

How Can I Terminate Alimony Payments?

There are several ways to terminate alimony or post-separation support. These means include: cohabitation with another third party; remarriage or death of either of the parties; resumption of marital relations between the parties; and the termination of the payments as defined by the order itself. Cohabitation is defined as voluntary assumption of marital duties or obligations, which includes but is not limited to sexual relations. Cohabitation includes actions such as continuous and habitual living together, co-mingling of funds between the parties, attending church services together, and holding themselves out to the public as a “couple.”

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