Alimony and Post-Separation Support ("PSS") are two of the more difficult areas to advise clients on because of the broad discretion a Judge has in deciding if and how much money is to be awarded. This stands in stark contrast to to the simplicity of the child support calculator.
The Judge may choose to award alimony for a fixed number of years or it may be awarded for life. If there is any rule of thumb, many attorneys advise to expect a time period for spousal support for half the duration of the marriage, meaning a 10 year marriage equates to 5 years of alimony. The dependent spouse may not receive any alimony if they engaged in Illicit sexual behavior prior to the date of separation of the parties.
In a nutshell, alimony is based on the financial need of the dependent spouse and the ability of the supporting spouse to pay. In addition the Judge and county make a huge difference as some Judges and some counties like to award spousal support and some do not. The death or either party or cohabitation by the dependent spouse is generally grounds for automatic termination of spousal support.
Post Separation Support is usually temporary in nature until a permanent alimony hearing. The award is usually a dollar amount that must be paid monthly, but could also include an Order to pay for certain expenses such as a house payment, car payment, or health insurance.
Alimony can be for a fixed period or even for life depending on the length of the marriage and the relative means and ability of each party.
Alimony factors in NC
- The marital misconduct of either of the spouses;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
- 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 standard of living of the spouses established during the marriage;
- 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;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- 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;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- 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.
Is alimony mandatory in NC?
Alimony is not mandatory. The amount and duration of alimony is in the sole discretion of the Judge. It is rarely requested due to cost and delay, but one could request a jury solely on the issue of marital fault.
What is the purpose of alimony?
Spousal Support is a way to balance the inequity of the earning capacity of one spouse versus another simply because the marriage has come to an end. This is usually accomplished by providing the spouse in need with a continuing income stream after the parties are no longer sharing expenses under one roof. Although cash payments are the most common type of alimony it can also be also be in the form of payments for mortgage payments, car payments, health insurance payments etc...
Can a man get alimony in NC?
Either a husband or wife may file a claim for alimony. Although claims by women are more common because they often sacrifice their career to raise children, there is a rise in stay at home dads and hence more and more men have been filing claims for support.
How many years do you have to be married to get spousal support?
There is no minimum number of years of marriage to be eligible to file for spousal support. One could technically file a claim for spousal support if married for only a day. That being said, the duration of the marriage is certainly a very important factor in assessing the value of a potential spousal support claim.
Can you ask for alimony after the divorce is final?
Any claim for spousal support or property distribution must be filed before the divorce decree is granted under NC law.
Is alimony taxable income?
Spousal Support such as Post-Separation Support and Alimony is a taxable event unless the parties agree otherwise. This means the payer deducts the amount paid and the recipient is supposed to claim the money received as income and pay taxes on that amount. The advantage of this policy is the person making the payment is usually in a higher tax bracket meaning both parties can benefit from this arrangement. ** The new tax bill signed by President Trump makes spousal support under court orders and separation agreements signed after December 31, 2018 a non-taxable event.
Final thoughts before Court
After reviewing the financial affidavits of each party often any award is limited by the ability of the supporting spouse to pay. Properly completing the financial affidavit to document all income and reasonable expenses is critical to both the prosecution and defense of any spousal support claim. Simply showing up to Court declaring you either need support or don't have any money to pay alimony is a recipe for disaster. Modification of spousal support requires a substantial change in circumstances, but is ultimately in the discretion of the Court. Seek legal counsel to fully explain the law and guide you through the stress of effectively presenting your case to the Judge.
* The Forms provided below are for illustrative purposes only. They should not be relied upon or filed with the Court. Please seek legal counsel before filing anything with the Court.