Alimony FAQ

FAQ

Can alimony be modified?

In order to modify or vacate an award for alimony, a motion must be made in the case and there must be a showing of changed circumstances by either party. In North Carolina, two things are required to modify an alimony order: (1) alimony is being paid under court order and (2) a substantial change of circumstances has occurred, measured by a comparison of facts existing at the time of the original order and the time when modification is sought. It is important to note that North Carolina courts cannot modify an alimony order entered by a court in another state.

 

 

How can an alimony decree be enforced?

There are various ways to enforce an alimony decree, such as: an arrest of the offending party; the garnishing of wages; injunction; receivership; contempt of court; and execution sales and supplemental proceedings. Note that the enforcement of alimony is governed and enforced by contract law. In terms of the garnishing of wages, North Carolina law puts a dependent spouse in a unique position as a creditor of the supporting spouse. Also, in regard to contempt, a non-complying party may be held in contempt of court even if that compliance is still under review by way of a pending appeal.

Support agreements that are incorporated into a judgment can be modifiable, but that agreement can also state that alimony is not modifiable. However, spousal support that is agreed upon outside of court cannot be modified by a court order. Only the involved parties can modify the agreement. To enforce an out-of-court agreement, a court may interpret the intent of the parties to award specific performance of the agreement as a remedy. In addition, the court may create a security interest in real property to support an order for alimony.

 

 

Can you terminate an alimony agreement?

Where spousal support is decided by a separation agreement, the parties can agree to whatever alimony termination conditions they wish. An alimony order may provide a specific date for its own expiration or be for an indefinite term. However, there are certain situations that can cause alimony to terminate on an earlier date. These events include: the parties resume marital relations; the dependent spouse remarries; the dependent spouse cohabits with another adult in a private heterosexual or homosexual relationship; the dependent spouse dies; or the supporting spouse dies.

 

 

 

 

Can attorney’s fees be recovered in alimony proceedings?

North Carolina allows a dependent spouse to request reasonable attorney’s fees in connection to an award for post-separation support and alimony. Attorney’s fees can even be recovered in connection with an appeal.

 

 

 

Can alimony be reduced if a business experiences financial difficulty?

Many people feel the need to modify their alimony obligations when their small business becomes financially strained. The option to modify your alimony payments only exists if certain requirements are met.  If you are seeking to amend your alimony payments or if you are a business owner considering entering into an alimony agreement, you should carefully consider these requirements.

If your alimony obligation stems from a court order, the court has a mechanism to modify alimony obligations. The court must find that there has been a “substantial change in circumstances” from the original order setting the amount of alimony payments. If the court finds that there has been a substantial change in your circumstances, the order may be modified or vacated completely. You must show evidence of that substantial change. This is why it is important to make sure the judge includes detailed “findings of fact” in the original order. These detailed facts will allow you more opportunity to distinguish your current situation from that at the time of the order.

If your alimony obligations stem from a separation agreement, make sure that you have provisions in the separation agreement that provide for modifications if your income changes. Absent such provisions, alimony obligations that stem from a separation agreement can’t be modified.  If you are considering entering into a separation agreement, consider the potential for your business to fluctuate in the future and tell your attorney of these fluctuations. It may be more advantageous to get a court order instead in case you need to amend the amount in the future.

 

How is the supporting spouse’s income used to set alimony?

The amount of alimony a supporting spouse is required to pay is determined based on the spouse’s income at the time of the alimony trial, unless the supporting spouse has tried to avoid financial responsibility by deliberately refusing work or intentionally decreasing income.

 

 

Can post-separation support, alimony, and attorney’s fees be waived?

If you have a valid separation agreement that waives post-separation support, alimony and attorney’s fees, that agreement may be used to bar an action for post-separation support, alimony, and attorney’s fees. If, however, the waiver causes a dependent spouse to be eligible for public assistance at the time of separation or at the end of the marriage, the court is allowed to overlook the provision in the agreement and order the supporting spouse to provide spousal support.

Are spouses allowed to testify against one another?

Under North Carolina law, spouses may testify against each other in an alimony action; however, there are other obstacles in place that may bar a spouse’s testimony. One N.C. law states, “No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” A communication is considered confidential if it was given under the pretense that it was protected by affection, confidence and loyalty produced by a marital relationship. Because of this, a spouse who admits fault to a spouse for the purpose of mending the relationship is able to bar the admission of fault.

Another privilege that can bar testimony is the constitutional privilege against self-incrimination. A party may utilize this privilege to prevent testifying about adulterous acts that could link that party to a criminal act. This privilege applies not only at trial but also during discovery and pleading. It is important to note that by invoking this privilege, the fact-finder may infer that the truthful answer may be harmful to the party invoking the privilege, therefore having a similar effect to admitting fault. Also, by invoking this privilege and allowing the fact-finder to infer fault, the party invoking the privilege will abandon his or her claim for alimony.

 

 

 

Does a divorce have to be pending to file for spousal support?

A divorce does not have to be pending to bring an action for post-separation support and alimony. You may request alimony in conjunction with an absolute divorce, a divorce from bed and board, or in an independent action. It’s important to note that an alimony claim joined to an action for divorce from bed and board must meet certain residency requirements. Also, an independent action for post-separation support or alimony is not subject to a waiting period. In terms of post-separation support, the court may base its award on an affidavit, a verified pleading, or other evidence, and the reasons for and the amount of the awards must be set out in the order.

How Much Alimony Will I Get?

The amount of alimony you will receive can be based on any of the following factors:

  • Marital misconduct by either spouse;
  • The earnings/earning capacity of the spouses;
  • The physical, mental, and emotional states of the spouses;
  • The duration of the marriage;
  • The contribution by one spouse to the education, training, or increased earning power of the other spouse;
  • The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
  • The education of each spouse and the ability for each spouse to obtain the necessary employment;
  • The relative legal and financial obligations of each spouse;
  • The property brought to the marriage by either spouse;
  • The contribution of a spouse as homemaker;
  • The relative needs of the spouses;
  • The Federal, State, and Local tax ramifications of the alimony award;
  • Whether the income of either party was already considered in determining the value of a marital asset in an equitable distribution of the parties’ marital property;
  • Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
Does illicit sexual behavior impact alimony?

A dependent spouse is barred from receiving alimony if he or she is found to have participated in illicit sexual behavior and the supporting spouse has not also participated in any illicit sexual behavior. If both parties have participated in illicit sexual behavior, it is up to the court’s discretion on whether to award alimony.

Are alimony payments taxed?

If the following criteria are met, alimony is deductible by the paying spouse and reportable by the dependent spouse under Federal and State income tax law. Alimony is taxable if: the payments are in cash and not in-kind; the payments are made incident to divorce or to a separation agreement; the parties have not designated the payments as non-alimony; the parties are not living in the same household; and the paying spouse has no liability for payment after the death of the payee spouse. If the parties agree that the payments will not meet the above criteria, the paying spouse cannot attempt to obtain a tax deduction for the alimony payments.

If you or your spouse attempt to manipulate the tax benefits associated with paying alimony, a paying spouse may have to relinquish a wrongful deduction or recapture any excess alimony paid to the dependent spouse. The recapture rule governs the process of requiring a paying spouse to recapture excess alimony and pay taxes on that amount while the dependent spouse will then have a deduction for that amount. The recapture process is complicated and before you and your spouse fall into a tax pitfall, it is best to discuss your options with your attorney and tax advisor.

 

Could dating have an impact on post-separation support and alimony?

There are several factors associated with your love life that could impact your post-separation support and alimony. Factors such as: how long you have been dating other people; whether you are the “dependent” or the “supporting” spouse; whether the dating began before or after the date of separation; and whether the dating can be shown to embrace “illicit sexual behavior” or some other marital fault such as “indignities.” Post-separation support and alimony cannot be ordered by a North Carolina court if your spouse can meet his or her own financial needs and/or you yourself don’t have the ability to contribute to your spouse’s financial welfare, OR you can meet your own financial needs and/or your spouse doesn’t have the ability to contribute to your financial welfare.

There are pitfalls to dating for both the dependent and supporting spouse. Any illicit sexual behavior on behalf of the dependent spouse will bar him or her from receiving alimony. On the flip side, if the supporting spouse participates in illicit sexual acts before separation, alimony will be mandatory. If both spouses have engaged in illicit behavior, an award of alimony is within the court’s discretion.

The rules are slightly different when it comes to post-separation support. Post-separation support is based solely on the dependent spouse’s need and the supporting spouse’s ability to pay. Therefore, a supporting spouse’s illicit behavior is not considered unless the dependent spouse has also participated in such behavior.

Finally, it is important to be aware of your position in a new relationship during a trial for alimony in the event that you are a part of a jury trial. Most family law matters are tried before a judge; however, alienation of affection and criminal conversion cases can be heard by a jury. To you or your new partner’s dismay, a jury trial could result in unwanted media attention.

 

 

What is post-separation support?

Post-separation support is a means for the dependent spouse to continue to meet his or her reasonable needs. The dependent spouse must be able to show that he or she cannot meet those needs on his or her own. In order to award post-separation support, a court must first consider the financial needs of both the parties; their standard of living; both parties’ income, earnings, and income earning abilities from any source; and any debt obligations the parties have.

A district court judge who has jurisdiction can hear an application for post-separation support at any time; however, the time of application for support must be reasonable compared to the time of the order. For example, an order for post-separation support entered in 2016 could be seen as unreasonable if the original application was filed in 2012. Also, a court does not have to have a full trial to award post-separation support – a judge need only find the facts from evidence presented in the form of affidavits, pleadings, etc.

An order for post-separation support will terminate if the parties resume their marriage, the dependent spouse remarries, the dependent spouse begins living with another adult in a private heterosexual or homosexual relationship, or the dependent or supporting spouse dies.

What is the alimony recapture rule?

The purpose of the alimony recapture rule is to prevent a supporting spouse whose divorce occurs at the end of the year from making deductible property settlements at the beginning of the year. This rule only applies to the supporting spouse when the alimony payments decrease or stop completely during the first three calendar years.

What are considered indignities?

An indignity is conduct that makes the other spouse’s condition intolerable and life burdensome. Indignities may consist of unmerited reproach, studied neglect, abusive language, and other manifestations of settled hate and estrangement. Facts supporting an allegation of indignities must be developed on a case-by-case basis because each individual has a different level of tolerance for misbehavior by a spouse. Indignities must be a conduct or continued treatment that persisted over a period of time. Under North Carolina law, isolated instances of bad or unpleasant conduct do not constitute a sufficient pattern of conduct to amount to indignities.

What are possible defenses against marital fault?

A party who has been accused of certain marital faults can use common law affirmative defenses to fault allegations. These defenses have technical names: condonation, connivance, collusion and recrimination. The most commonly used of these defenses is condonation, meaning forgiveness of the particular fault. For example, if your spouse has engaged in a sexual affair, and then you have sex with your spouse knowing about the affair, in the eyes of the law, you may have forgiven or “condoned” the fault. These defenses must be detailed with particularity to inform the opposing party of the events that you intend to prove.

What constitutes abandonment?

Abandonment occurs when a spouse brings cohabitation to an end without justification, without the consent of the other spouse, and without the intent of renewing cohabitation. All three of these elements must be proven by the spouse seeking to show the other spouse’s abandonment. A spouse can be justified in leaving another spouse if the withdrawing spouse can show that they can’t continue the marital relation with safety, health, and self-respect.

North Carolina cases also recognize constructive abandonment as marital fault. Constructive abandonment arises when the other spouse does not physically leave the home but, rather, commits affirmative acts of cruelty/neglect or other willful failure to fulfill the obligations of marriage. In fact, this may force the dependent spouse to leave the home. Understand that the dependent spouse who is forced to leave the home by the other spouse’s misconduct does not abandon the injuring spouse but has, rather, been constructively abandoned.

 

What is illicit sexual behavior?

Illicit sexual behavior, formally known as adultery and unnatural sex acts, is a North Carolina fault ground. Adultery itself can be proven through a showing of an outside relationship by the cheating spouse. Proof of this fault ground requires a showing of something more than an “opportunity” for your spouse to engage in illicit sexual behavior. Opportunity is nothing more than your spouse and their forbidden significant other being alone and unsupervised. If you don’t have an inclination of a more romantic encounter, you may not have enough to prove any illicit sexual behavior.

What is malicious turning out of doors?

Malicious turning out of doors is a part of willful abandonment and is proved by the same basic facts. Essentially, it means one spouse has been either emotionally or physically abandoned.

What is marital fault and how does it apply to a claim?

Marital fault in North Carolina can consist of illicit sexual behavior (sexual acts voluntarily engaged in with someone other than your spouse), involuntary separation of the spouses as a result of a criminal act committed prior to the alimony proceeding, abandonment, malicious turning out of doors (a subset of willful abandonment), cruel or barbarous treatment endangering the life of the other spouse, reckless spending, waste, concealment of assets, substance abuse, willful failure to support the other spouse financially, and any indignities that would render life with the other spouse intolerable. Despite having these enumerated fault grounds, you no longer have to show that your spouse is at fault when seeking post-separation support or alimony from your spouse.

 

 

 

 

 

What is considered reckless spending?

A spouse used to be labeled as a “spendthrift” spouse. A spendthrift, is a person who spends money liberally and carelessly. Being a spendthrift is now only part of determining “reckless spending.” Now, the standard includes the destruction, waste, diversion or concealment of assets as well.

How do courts consider the “condition” of the parties involved?

In considering the “condition” of the parties involved, the court considers age, health, physical wellbeing, and other similar factors. The parties’ standard of living will also be assessed to assist in determining the amount of alimony that should be awarded to the dependent spouse to keep him or her in the financial standing that he or she experienced during the marriage. Reasonable needs of the dependent spouse, such as food, clothing, and shelter, are also considered.

 

 

Who decides on an alimony award?

You and your spouse have the right to a jury trial to determine who is at fault in an alimony proceeding. However, only a judge can decide dependency issues and the amount of alimony to award. When bringing a claim for post-separation support or alimony, the parties must still be married at the time the action is filed, but a pending alimony action is still valid if an absolute divorce becomes final during the process. One exception to this rule is in the case of a foreign divorce. When a divorce is obtained without personal jurisdiction over the dependent spouse, the dependent spouse can still seek alimony after the divorce has been finalized.

 

 

Who can receive post-separation support and alimony?

Post-separation support and alimony are available to dependent spouses without a showing of fault on behalf of the supporting spouse. Fault on behalf of the dependent spouse, however, can bar that spouse from an alimony award. For example, if the dependent spouse (and not the supporting spouse) participated in illicit sexual behavior, the dependent spouse can lose his or her entitlement to alimony (but not post-separation support).

Who is the dependent spouse?

Determining who is the dependent spouse and who is the supporting spouse is an essential part of a post-separation or alimony complaint. A dependent spouse is typically a spouse who makes less money than the supporting spouse and is actually substantially dependent on the other spouse for maintenance and support. The supporting spouse is the spouse who provides the majority of the marital income. To determine dependency, the courts will look at the accustomed standard of living of the parties in years prior to separation and whether the dependent spouse can maintain that standard without depleting his or her individual assets.

Who has a claim to receive post-separation support and alimony?

North Carolina allows financially dependent spouses to receive post-separation support and alimony from another spouse, regardless of whether that spouse is at fault or not. Under the current N.C. laws, however, marital fault can still be an important factor in considering the dependent spouse’s right to alimony. In situations where the dependent spouse has participated in illicit sexual behavior, and the supporting spouse hasn’t committed a similar act, the dependent spouse loses his claim to alimony. The dependent spouse at fault may still have a claim for post-separation support.

In a claim for alimony or post-separation support, the claim must establish that the spouse submitting the complaint is the dependent spouse and the other, the supporting spouse. A dependent spouse is a husband or wife who is “actually substantially dependent on the other spouse for maintenance or one who is substantially in need of maintenance and support from the other spouse.” A supporting spouse is considered to be the spouse who provides the dependent spouse’s income.

Finding that one spouse is actually dependent is not required to be awarded alimony. In determining a spouse’s need, the court will look to the parties’ standard of living.

Your Guide to Alimony in North Carolina

Alimony is payment for support and maintenance by a “supporting spouse” to a “dependent spouse.” Generally, the dependent spouse is the spouse who makes less money than the supporting, higher-income spouse. Alimony can be paid in lump sums or continuously through periodic payments. The amount of alimony to be paid and how it will be paid can either be determined via court order or decided privately through a separation agreement.

Whether alimony is being determined in court or through private agreement, it is best to be knowledgeable about the statutes governing alimony in North Carolina to bring a level of ease to the process and hopefully avoid tension. North Carolina General Statute 50-16.3 explains who is entitled to alimony and how the courts reach decisions regarding alimony. This statute will help you understand your rights and what the court is looking for. It would be in your best interest to maintain a clear, detailed and easily accessible history of your financial affairs and the assets you and your spouse held in order to assist the court with your case.

Below is a list of factors the courts may consider in determining alimony:

  1. The marital misconduct of either of the spouses. (Includes illicit sexual behavior, abandonment, constructive abandonment, cruel or barbarous treatment endangering the life of the other spouse, such indignities as to render the condition of the other spouse intolerable and life burdensome, reckless spending of the income of either party, substance/alcohol abuse, willful failure to provide maintenance and support, and involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.)
  1. The relative earnings and earning capacities of the spouses.
  1. The ages and the physical, mental, and emotional conditions of the spouses.
  1. The amount and sources of earned and unearned income of both spouses, including earnings, dividends, and benefits such as medical, retirement, insurance, and Social Security.
  1. The duration of the marriage.
  1. The contribution by one spouse to the education, training or increased earning power of the other.
  1. The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.
  1. The standard of living of the spouses established during the marriage.
  1. The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs.
  1. The relative assets and liabilities of the spouses and the relative debt of the spouses, including legal obligations of support.
  1. The property brought to the marriage by either spouse.
  1. The contribution of a spouse as homemaker.
  1. The relative needs of the spouses.
  1. The Federal, State, and Local tax ramifications of the alimony award.
  1. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
  1. The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties” marital or divisible property.

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