ALIMONY & POST-SEPARATION SUPPORT

Determining the amount and duration of financial support owed to a spouse who is “dependent” on the other spouse (typically because there is a significant disparity in the parties’ incomes) is one of the most challenging aspects of divorce to resolve. In North Carolina, there are no Guidelines for determining spousal support. Instead, a three-pronged approach is used that involves an analysis of (1) the monthly financial needs of a dependent spouse; (2) the ability of a dependent spouse to contribute to his or her own needs; and (3) the ability of a “supporting” spouse to help make up the shortfall. If you believe you are entitled to spousal support and you have not resolved all issues by a Separation and Property Settlement Agreement, it is imperative that you consult a family law attorney prior to the entry of an absolute divorce judgment, or you may lose your right to receive alimony.

Determination of the monthly financial needs of the dependent spouse requires a detailed analysis of the spending done by or on behalf of the dependent spouse in the year or so prior to the parties’ separation from one another. This involves a review of all of the monthly credit card statements, bank account statements, and receipts for the time period at issue. Once the dependent spouse’s monthly financial needs are determined, the ability of the dependent spouse to contribute to his or her own needs is analyzed by considering his or her net income from employment or other sources. In certain cases, the earning capacity of the dependent spouse is considered even though he or she may not be employed, or may be employed only on a part-time basis. If the dependent spouse is not able to meet his or her monthly expenses, the supporting spouse’s ability to pay the shortfall is considered, after taking into account the amount needed for the supporting spouse’s own monthly expenses and any child support obligations he or she may have.

Post-separation support is the payment of an amount from a supporting spouse to a dependent spouse for a period of time set by the Court, until an alimony order is entered or denied by the Court, until an alimony claim is dismissed by a dependent spouse, or until entry of an absolute divorce judgment if no alimony claim is pending at the time of divorce.  Marital misconduct may or may not be considered in determining post-separation support.  On the other hand, marital misconduct (e.g., illicit sexual behavior, substance abuse, domestic violence, indignities) on the part of either the dependent spouse or the supporting spouse is considered in determining an alimony award or denial of alimony. The duration and amount of alimony is in the sole discretion of the presiding judge and can vary depending on the facts and circumstances of the case, the venue, and the particular judge. Regardless of the duration awarded, alimony terminates upon the death of a party or the remarriage or cohabitation of the dependent spouse. Back to Practice Areas