Alimony and Post Separation Support

Alimony and Post Separation Support

How much will I receive (or pay) in alimony?  How long does alimony last? Is it taxable? What if my spouse cheated on me?

These are questions you may have if you are recently separated or thinking about leaving your marriage. This is a complicated area of law and you should meet with an attorney to discuss your specific situation.  You and your spouse might reach an agreement on spousal support—but here is an overview of how the court deals with the subject.

North Carolina has two types of spousal support: post separation support and alimony.

 What is Post Separation Support?

Post separation support (PSS) is the same thing as temporary alimony. But, PSS is easier to get because its intended to just help get the bills paid immediately after a separation. When a married couple separates, the income that was paying for one home now has to pay for two.

 If after the separation, you can’t pay your bills, but your spouse can pay their own bills and have money left over, you may be able to get PSS. The idea of PSS is to keep the bills paid on a temporary basis.The spouse who needs the money is the “dependent spouse”. The spouse who pays the money is the “supporting spouse.”

What if my spouse cheated on me?

Misconduct is an important factor. If, for example, the dependent spouse has committed adultery and the supporting spouse has not, then the dependent spouse is unlikely to be awarded post separation support, and would also be barred from getting alimony. The court will consider other types of marital misconduct by either spouse when deciding whether to award post separation support. Types of marital misconduct are described in N.C.G.S. § 50-7.

North Carolina has a formula to determine child support, but the same is not true for PSS and alimony.  Orange and Chatham County have recently adopted a local rule that employs a formula for determining a recommended amount for spousal support.  The court may follow the recommendation, but it does not have to.  Unlike child support, PSS may have tax consequences.  Post separation support is generally taxable income to the spouse who receives it, and a deductible expense to spouse who pays it.

PSS is usually paid monthly, but there are other options.  It can be paid in a lump sum or by transferring assets to the dependent spouse.  Post-separation support can be for a specified period of time, or until the court makes a decision about alimony.

The statute for post separation support can be found here. 

 

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Will I get (or pay) Alimony?                                           

Like post separation support, alimony is intended to provide financial support for the dependent spouse.  Unlike post separation support, alimony may also serve to compensate the dependent spouse for financial sacrifices made during the marriage, or for marital misconduct – such as adultery or abuse – committed by the supporting spouse. Alimony is not intended to punish a spouse for marital misconduct, but simply to shift the economic hardship of a divorce onto the shoulders of the spouse who caused the break up through bad behavior.

When determining whether to award alimony, the court will look at many factors including:

  • The incomes of both parties;
  • Their debts;
  • Living expenses during the marriage and now; and 
  • Whether an award of alimony would be fair under the circumstances of the case. 

Once the court determines that one spouse needs alimony (the “dependent spouse”) and the other spouse can afford to pay alimony (the “supporting spouse”) , the court will then consider whether either or both parties committed adultery before they separated, and whether the innocent party forgave or gave permission to the guilty one. If the court finds that:

  • The dependent spouse committed adultery, but the supporting spouse did not, then the court will not award alimony to the dependent spouse.
  •  The supporting spouse committed adultery, but the dependent spouse did not, the court will award alimony to the dependent spouse.
  •  Both parties committed adultery, then the court may use its discretion as to whether to award alimony.

As part of the determination of whether to award alimony, and if so, for how long, the court looks must consider several factors.

These other factors that the court is required to consider include:

  • The ages and physical, mental, emotional conditions of both spouses;
  • Their incomes, including non-paycheck income like dividends, and benefits such as medical, retirement, insurance, social security, or others;
  • The length of the marriage;
  • Whether, and how much, one spouse contributed to the education or earning potential of the other spouse;
  • Whether one spouse staying at home with the children reduced that spouse’s earning capacity;
  • The standard of living during the marriage;
  • The ability of each party to get a job, how much money they are able to earn, and their level of education or need for training to get a job;
  • The property either spouse brought to the marriage;
  • The contribution of a spouse as homemaker;
  • The relative needs of the spouses; and
  • The debts of each spouse and whether either spouse is paying support for other children or previous spouses.

One of the less obvious factors that the court considers is the tax consequences of the alimony award.  An alimony payment is usually taxable to the person receiving it and deductible to the person paying it. The actual list of factors is set out in the alimony statute, N.C.G.S. § 50-16.3A

How long does Alimony last? Can the amount be changed?

Alimony is usually paid monthly, but there are other options. For example, alimony can be paid in one lump sum or by transferring property to the dependent spouse.

If the court awards alimony, the duration may be for a set period of time, or, if the marriage had been a long one, it could be a permanent award.  Although, “permanent” only applies as long as the factors supporting the award do not change.  If there is a substantial change in circumstances, then either party may ask the court to change the award.  Examples of substantial changes include the supporting spouse becoming disabled, or the dependent spouse getting a raise at work.

Also, by law, alimony terminates if the dependent spouse remarries or lives with someone (as if married).  Also, alimony ends if either spouse dies.

I am divorced, can I still get alimony?

If you did not file a claim for alimony with the court before you got divorced, you cannot get alimony now. You have to file the claim before the divorce order is entered.