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An In-Depth Discussion on Post-Separation Support & Alimony

Spousal support is often thought of as payments from a husband to his wife so she can sit around all day and eat chocolate bon-bon's. Sadly, most litigants who seek spousal support need the money in order to simply make ends meet. Perhaps during the marriage one party's career was sacrificed in order to stay home with the children while the other party assumed the role of primary bread winner. Although the parties together were able to maintain a certain standard of living, upon their separation it is commonplace for one spouse to be financially dependent upon the other. Spousal support in North Carolina is intended to be rehabilitative in nature not punitive. Accordingly, a greater emphasis is placed on the financial conditions of the parties versus their misconduct. With the hope that spousal support will enable the financially dependent spouse the opportunity to eventually support himself or herself without the assistance of anyone else, the legislature of North Carolina revamped its laws in 1995 to place minimal importance on marital misconduct. In fact, marital misconduct is not a necessary element for an award of spousal support.

Spousal support awards come in two basic ways in North Carolina: post-separation support (PSS) and alimony. Post-separation support (PSS) is defined as spousal support to be paid until the earlier of either the date specified in the order of post-separation support, or an order awarding or denying alimony. Whereas alimony is defined as an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term. Both types of support share common elements and are subject to termination under certain circumstances.

The elements of Post-Separation Support (PSS)

For purposes of this discussion, it is assumed that the parties have jurisdiction to bring a claim for PSS in the State of North Carolina. In order to receive PSS, one must prove:

  • The parties involved were lawfully married,
  • Party seeking PSS is a dependent spouse,
  • Party from whom PSS is sought is a supporting spouse,
  • Dependent spouse does not have resources to meet her needs, and
  • Supporting spouse has the ability to pay PSS to dependent spouse.

What does all this legal mumbo-jumbo mean? Let's break it down piece by piece.

  • "The parties involved were lawfully married"
  • Under North Carolina law, a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

    • in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and with the consequent declaration by the minister or magistrate that the persons are husband and wife
    • in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe. NCGS 51-1

    Before a marriage may be solemnized by one of the persons listed above, a valid marriage license signed by the register of deeds (or his deputy or assistant) from the county in which the license was issued must be presented. In addition, there must be at least two (2) witnesses to the marriage ceremony. NCGS 51-6 The man and woman marrying must also meet certain age and kinship requirements to wed. NCGS 51-2 through 4


  • "Party seeking PSS is a dependent spouse"
  • A dependent spouse is a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse. A party is actually substantially dependent if he is unable to meet his own maintenance and support. Whereas, a party may be substantially in need of maintenance and support without actually being dependent upon the other party. To properly find that a party is a dependent spouse, the court must only find that the spouse's reasonable monthly expenses exceed her monthly income and she has no other means with which to meet those expenses. However, the dependent spouse does not have to be destitute. Rather, the dependent spouse needs the financial assistance of the other party to maintain the standard of living to which she has become accustomed during the last several years prior to the parties' separation. The standard of living is the social and economic standard established by the marital partnership for the family unit.

    The burden of proving dependency is on the party requesting spousal support. The spouse requesting the support must show the accustomed standard of living and that she lacks the means to maintain that standard. Just because a party has a job and receives income to pay towards his expenses does not mean he is not a dependent spouse. Nor does the ability to borrow money in order to meet one's expenses mean one is not dependent. To the contrary, it can be argued that having to borrow the money is strong evidence of dependency. Ultimately, the decision of dependency is in the sole discretion of the trial court.


  • "Party from whom PSS is sought is a supporting spouse"

    A supporting spouse is one, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. The definition of supporting spouse is essentially the opposite of the definition of the dependent spouse. As a result, the same standards described above apply.


  • "Dependent spouse does not have resources to meet her needs" See the discussion above for dependent spouse. The court will examine the financial wherewithal of the party claiming dependency, compare it to the standard of living of the marriage prior to separation, and determine if the party can meet her needs without assistance. The actual amount of support, if ordered, will be determined in part by the shortfall of the dependent spouse between her sources of income and her reasonable needs.

    In making a determination, the court may consider the following factors:

    • The parties' accustomed standard of living,
    • The party's present employment and other reoccurring income and/or earnings,
    • The party's ability to earn income,
    • The marital and separate debt service obligations,
    • The legal obligations to support other persons (including children), and
    • The expenses reasonably necessary to support each of the parties.

  • "Supporting spouse has the ability to pay PSS to dependent spouse"

    This final component is crucial to a court's granting of PSS. The other elements may be present but if the supporting party is unable to pay the support needed by the dependent spouse, there can be no award of PSS. In making this determination, the court will consider the factors listed above for examining ability to meet one's own resources. Often we find that parties may be able to live a higher standard of living when they are together because they are sharing some common expenses such as rent and utilities. But, once the parties separate, the expenses double because there are two households. Further, the supporting spouse may be under a duty to provide child support to the dependent spouse. Payment of the child support reduces the amount of disposable income available to the supporting spouse for the payment of spousal support. Overall, a court will not typically make a supporting spouse maintain a lesser standard simply so the dependent spouse can maintain a higher standard of living.

Defenses to an action for Post-Separation Support

There are very few defenses to a request for PSS if the dependent spouse can show all of the elements listed above. Unlike a claim for alimony, PSS is not barred simply because of illicit sexual behavior by the dependent spouse. Given the temporary nature of PSS, the court is directed to focus on the financial circumstances of the parties and make rulings to allow for stability in the standard of the living of both parties as the other claims arising from the parties' separation are resolved. However, our statute does provide for the court to consider marital misconduct in making its ruling. Oddly, the dependent spouse may only present evidence as to marital misconduct if the supporting spouse presents evidence of marital misconduct on behalf of the dependent spouse. As a result, the supporting spouse can control the extent of the evidence presented to the court at a hearing on PSS. Strategically, a supporting party rarely provides evidence of marital misconduct unless he is confident the evidence is very damaging to the dependent spouse and that there is very little evidence of misconduct on the part of the supporting spouse. Given the court's eye towards the financial needs of the parties at the PSS stage and the temporary nature of any award for PSS, it may be unwise to show one's evidence prior to the alimony stage. But, if the supporting spouse can prove cohabitation on behalf of the dependent spouse, there can be no award of PSS. Cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. Remarriage by the dependent spouse also prevents a claim for PSS. Death of either of the parties prevents a claim for PSS or terminates an order for PSS.

Finally, a claim for PSS may not be made if the parties are already divorced before any claim has been made for the spousal support. In addition, no claim can be made for PSS if the parties have entered into a duly executed contract or agreement whereby these rights or claims are waived by the dependent spouse.

Effects of an award of Post-Separation Support

A party ordered to pay PSS is under an obligation to provide the support until terminated by either a date set by the court, remarriage of the dependent spouse, death of either party, or cohabitation of the dependent spouse. The party paying the support is typically entitled to tax deductions as a result and the party receiving the support is typically responsible for payment of tax on the support. If determined taxable, the support is considered income to the party receiving it.

The IRS requires several criteria to be met in order for the tax implications stated above to be in place. They are:

  • Payments must be in cash, which includes checks and money orders payable on demand;
  • All payments must be under the provisions of a divorce or separation instrument;
  • All payments must be not designated as not includible in gross income and not allowable as a deduction under the applicable IRS Code;
  • The status of the marriage has changed (ie the former spouses are not members of the same household;
  • All liability for payment of spousal support must end upon the death of the person receiving the support;
  • The spousal support payments must not be set as child support; and
  • The spouses can not file their taxes jointly for the years the spousal support is paid.

For a more comprehensive explanation of these rules, you should consult with a CPA and/or experienced family law attorney.

PSS may also take the form of medical insurance for the dependent spouse. In most circumstances, the trial court will simply provide for the supporting spouse to continue to provide the coverage through his or her employment if this was the course of conduct during the marriage. Rarely will a court force the supporting spouse to search for and provide insurance coverage for the dependent spouse outside the supporting spouse's employment sponsored plan. One should be cautious about insurance coverage and the responsibility of the employer sponsored plan to remain in place. Many policies reserve the right to terminate coverage at the regular premium costs for family of employees after the parties have separated. Almost all employer sponsored policies terminate the coverage upon the parties' obtainment of a judgment of absolute divorce. However, COBRA coverage may be available and the spouse receiving the support should inquire about this coverage.

A court may also provide for an award of attorney's fees and costs. This award is completely in the discretion of the judge. Simply prevailing in court does not guarantee an award of reimbursement of attorney's fees. These fees may be awarded in a lump sum or paid over time. The amount of the fees may also be determined by the judge as she deems appropriate.

In the bigger picture, if the groundwork is laid by the dependent spouse for support at the PSS level, it may be difficult to ward off a claim for alimony later in the case, assuming illicit sexual behavior is not present. Consequently, many parties believe the course is set for alimony following the PSS ruling, good or bad. The PSS ruling often leads to settlement negotiations in order to avoid further costs arising from alimony litigation. But, it must be remembered that PSS and alimony are different in many ways and assumptions of finality are not necessarily accurate.

An award of PSS is temporary in nature and therefore, difficult to appeal. Still, the award can be modified upon application by a party and persuasion of the court that such an award is no longer equitable or necessary due to changed circumstances. For example, should the dependent party remarry or land a job paying double the income of the supporting spouse, a court may be persuaded to terminate the PSS award. In addition, the award may be terminated should the parties reconcile and resume marital relations. Waiting for the term of the order to run can be costly to the paying spouse. A better practice is to file the motion to modify as soon as one believes the circumstances allow; thus preserving the date of modification to the date of the filing of the motion rather than the actual date of hearing.

The Process

All PSS lawsuits start with the filing of a civil summons and a complaint or by making a motion in an already existing lawsuit. The civil summons is simply a form designed to prove the defendant in the lawsuit has been properly served with the lawsuit. It is important to prove the defendant is aware of the PSS lawsuit. Without this proof, the court will not grant the PSS. Public policy in this state demands that parties be aware of lawsuits filed against them and provided an opportunity to respond before final rulings are made by a court of law. The complaint is the original document filed with the court which sets forth the claims for which relief are sought from the court. In a PSS action, the complaint will list the elements of the PSS action (see above) with allegations that these elements have been met and that an award of PSS is appropriate. When a motion seeking PSS is filed with the court, the elements are alleged in the same manner as with a complaint. The motion must also be served upon the opposing party but the service requirements are not as rigorous.

The civil summons and the complaint are taken by the complaining party to the office of the clerk of the civil court. These documents are filed with the clerk and a filing fee is paid. Once filed and the fee paid, the lawsuit has been initiated and file number will be given to the lawsuit. This number identifies the lawsuit and will be used from this point forward. It is the responsibility of the party filing the lawsuit to provide a copy of the lawsuit to the defendant and later provide proof of that service to the clerk of court. It is not the responsibility of the clerk or anyone else to have the complaint and civil summons served. Failure to complete this task will prevent the suit from proceeding further. Service may be accomplished a number of ways under the law, including certified mail return receipt requested, personal delivery by sheriff's deputy or process server, and, as a last resort, service via publication. Before attempting any of these methods, you should review the law thoroughly or consult with an experienced family law attorney in the area where you plan to file the lawsuit.

When filing a motion for PSS, it is presumed that the civil summons and complaint seeking other claims has been filed and properly served on the opposing party. With the motion, service is accomplished by timely providing a copy of the motion to the opposing party directly or, if the opposing party is represented, through his counsel of record. Service may be accomplished via regular mail.

When seeking PSS through a complaint, the defendant is entitled to no less than thirty (30) days to respond to the lawsuit before further steps can be taken. Once sufficient time has passed from the valid service of the lawsuit, the party who initiated the lawsuit requests the judge to review the claims made and grant appropriate relief. By appropriate relief, we mean that an award of PSS is made. When relief is sought via a motion, the opposing party does not have a set time period within which to respond. Some would argue that no reply is actually required under our laws. In either case, the request for relief is typically determined by a court at a hearing. The notice of the hearing must be provided to the opposing party in a timely manner and no less than ten (10) days before the actual hearing.

Each judicial district in North Carolina establishes local rules that direct the parties in that district how to proceed with certain claims. In support cases, many districts require the parties to file affidavits indicating their income from all sources as well as their monthly needs and expenses. These affidavits must then be served on the opposing party along with documentation to support the figures in the affidavits. Deadlines for filing and exchanging the affidavits and supporting documents are also found in these local rules. The purpose of the local rules is to ensure both the parties and the court are provided the necessary information to assess the validity of the PSS claim as well as the resulting amount, if such an award is made, required by the dependent spouse and the supporting spouse's ability to pay.

At the hearing, the initiating party may be expected to provide sworn testimony. The testimony may consist of simply reciting the facts set forth in the original complaint or motion or it may be as involved as answering questions from the judge or the opposing party. The parties may provide evidence in the form of documents and testimony from third parties. For PSS claims, the judge is the sole trier of fact and rules on the evidence. Upon the conclusion of the presentation of the evidence, the judge will make a ruling. That ruling will either grant the PSS requested or deny it. Either way, a determination will be made in the case. This written ruling can be used by both parties to prove the entry of the PSS as of a specific date.

The Elements of Alimony

Alimony is defined as an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term.

In order to receive alimony, one must prove:

  • The parties involved were lawfully married
  • Party seeking alimony is a dependent spouse
  • Party from whom alimony is sought is a supporting spouse
  • An order of alimony is equitable after considering the factors set forth in the statute

What does all this legal mumbo-jumbo mean? Let's break it down piece by piece.

  • "The parties involved were lawfully married"
  • Under North Carolina law, a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

    • in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and with the consequent declaration by the minister or magistrate that the persons are husband and wife
    • in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe. NCGS 51-1

    Before a marriage may be solemnized by one of the persons listed above, a valid marriage license signed by the register of deeds (or his deputy or assistant) from the county in which the license was issued must be presented. In addition, there must be at least two (2) witnesses to the marriage ceremony. NCGS 51-6 The man and woman marrying must also meet certain age and kinship requirements to wed. NCGS 51-2 through 4

  • "Party seeking alimony is a dependent spouse"
  • A dependent spouse is a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse. A party is actually substantially dependent if he is unable to meet his own maintenance and support. Whereas, a party may be substantially in need of maintenance and support without actually being dependent upon the other party. To properly find that a party is a dependent spouse, the court must only find that the spouse's reasonable monthly expenses exceed her monthly income and she has no other means with which to meet those expenses. However, the dependent spouse does not have to be destitute. Rather, the dependent spouse needs the financial assistance of the other party to maintain the standard of living to which she has become accustomed during the last several years prior to the parties' separation. The standard of living is the social and economic standard established by the marital partnership for the family unit.

    The burden of proving dependency is on the party requesting spousal support. The spouse requesting the support must show the accustomed standard of living and that she lacks the means to maintain that standard. Just because a party has a job and receives income to pay towards his expenses does not mean he is not a dependent spouse. Nor does the ability to borrow money in order to meet one's expenses mean one is not dependent. To the contrary, it can be argued that having to borrow the money is strong evidence of dependency. Ultimately, the decision of dependency is in the sole discretion of the trial court.

    In an alimony case, the claims may be heard on the merits prior to the determination of property distribution (known as "equitable distribution") of the parties. If the alimony claims are determined before the property distribution, the issues of not only the amount of the award but also whether the party is still a dependent spouse may be reviewed after the property distribution is ordered. It may be that the result of the property distribution is there is no more dependency by a spouse on the other.

  • "Party from whom alimony is sought is a supporting spouse"
  • A supporting spouse is one, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. The definition of supporting spouse is essentially the opposite of the definition of the dependent spouse. As a result, the same standards described above apply.

    In an alimony case, the claims may be heard on the merits prior to the determination of property distribution (known as "equitable distribution") of the parties. If the alimony claims are determined before the property distribution, the issues of not only the amount of the award but also whether the party is still a supporting spouse may be reviewed after the property distribution is ordered. It may be that the result of the property distribution is there is no longer a spouse able to provide support for the other.

  • "An order of alimony is equitable after considering the factors set forth in the statute"
  • The court is to consider all relevant factors including the statutorily listed sixteen (16) factors below in determining the amount, duration, and manner of payment of alimony. The factors are:

    1. The marital misconduct of either of the spouses; Although the emphasis of the court is to examine the acts of marital misconduct occurring during the marriage and prior to or on the date of separation, the court may consider incidents of post date-of-separation martial misconduct as corroborating evidence of these claims. Marital misconduct consists of the following:

      1. Illicit sexual behavior.
      2. Illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in North Carolina General Statutes 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse. Sexual act as defined by North Carolina General Statutes 14-27.1(4) means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. It also means the penetration, however slight, by any object into the genital or anal opening of another person's body; provided that it shall be an affirmative defense that the penetration was for accepted medical purposes. This definition is an expansion and clarification of the previous adultery language in our law until a number of years ago. Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party.

        According to the statutory definition, the illicit sexual behavior must have been voluntarily engaged in by the guilty spouse. Accordingly, if the spouse was forced to participate in the behavior it does not constitute marital misconduct. According to case law in this state, for adultery to have occurred it must not have come about as a result of connivance. Connivance occurs when one party causes or induces the other party to commit the act. For example, a husband can not later accuse his wife of adultery if he encouraged her to engage in sexual intercourse with a third party. The question remains whether connivance would be considered a defense to the illicit sexual behavior under the argument the accused spouse did not act voluntarily.

        Interestingly enough, despite a number of criminal laws in this state prohibiting many of the acts described above, as long as the acts take place with your spouse they are not marital misconduct. Our state apparently wants to steer clear of a married couple's bedroom on this occasion.

        Illicit sexual behavior can be condoned. Condonation is a term in our law which typically means a conditional forgiveness. Although the opposing party has engaged in illicit sexual behavior, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again. The actions which may constitute forgiveness range from words, to continued cohabitation together, to sexual intercourse. Typically, with illicit sexual behavior, condonation is realized by having sexual intercourse with the offending spouse after having knowledge of the illicit sexual behavior. It is assumed that you have forgiven the other party because you did not separate nor seek immediate remedy for the wrongs done against you. Instead, you had sex with your spouse. The effect of condonation is that the party who committed the illicit sexual behavior may not have the behavior alleged against him or her. Only if the behavior occurs again, may the aggrieved party renew these claims. The standard for the behavior after condonation is much lower, according to our courts, than for the original claims.

        Although alimony is based on the overall elements stated above and marital misconduct is only supposed to have an impact on the amount, duration, and manner of payment of the alimony award, illicit sexual behavior can ensure or prevent an alimony claim. If the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to the dependent spouse. However, if the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall not order alimony to be paid. If the court finds that both the supporting and dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be awarded or denied in the discretion of the court after consideration of all the circumstances.


      3. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.
      4. As stated, this misconduct typically comes about as the result of a spouse being jailed or imprisoned for a criminal action. Interestingly, given the manner in which the misconduct is defined, there is no requirement that the criminal act result in a conviction of either spouse or even that the criminal act was committed by one of the spouses. Further, the definition of "criminal" may be argued as broad and ambiguous. A party could argue that deportation or extradition gives rise to this misconduct ground.


      5. Abandonment of the other spouse.
      6. Abandonment is a term which is misunderstood and frequently misused by the public. Many people mistakenly believe that simply leaving the marital residence, not matter the circumstances, constitutes abandonment. Our state courts of review have defined it as the act of one spouse bringing the cohabitation of the parties to an end without justification, without the consent of the other spouse, and without intent of renewing it. However, it is not necessary for one spouse to leave the other in order for abandonment to occur. Rather, by cruelly treating one's spouse or refusing to provide support for one's spouse, one's conduct may compel the aggrieved spouse to leave the relationship. The aggrieved spouse would still be entitled under our law to claim the mistreating spouse had committed abandonment. When the conduct of one spouse causes the other to leave, it is called constructive abandonment. Although there is no bright line test for what constitutes constructive abandonment, generally the court considers all of the facts and circumstances of the case to ask whether the withdrawing spouse was justified in leaving. The conduct of the spouse engaged in the constructive abandonment must be willful and make it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect. Finally, mutual agreement to separate can not typically be alleged as abandonment. The only exception is when a spouse is induced to agree to the separation because of the misconduct of the other spouse.


      7. Malicious turning out-of-doors of the other spouse.
      8. One can imagine that this fault ground was more popular when North Carolina was more of a rural, less populated state. The term makes one imagine an angry husband putting his wife out of their house in the middle of the night and locking the door behind her. In our more urban current condition, it is difficult to comprehend a spouse's ability to take this action now. The police would certainly be summoned and allow the spouse back in the home. A more recent application of this fault ground may turn on misuse of the domestic violence statutes which allow a party to obtain an emergency order putting someone out of the home on at least a temporary basis. If the allegations which gave rise to the emergency order are later disproved, the aggrieved party may argue that he or she was maliciously turned out of doors.

        What if the spouse leaves but then attempts to return to the home and you refuse to allow him or her back in? Is this maliciously turning the other out of doors? Maybe. However, North Carolina has a criminal domestic trespass law which may assist the spouse who remained in the home. For criminal domestic trespass to have occurred you must prove that someone left the home voluntarily, the remaining spouse informed the departing spouse not to return, and then the departing spouse attempted to return. [confirm and clarify definition] This is a crime and law enforcement are the ones to enforce it. As a word of warning, without fail law enforcement folks dread domestic disputes more than any other calls. They may be reluctant to press the charge of criminal domestic trespass. But, to protect yourself against the fault ground of maliciously turning the other out of doors, it may benefit you to create a record that the authorities were contacted and you attempted to lodge these charges.


      9. Cruel or barbarous treatment endangering the life of the other spouse.
      10. Generally, this marital misconduct involves violent actions or threats of violent actions. However, our courts have ruled that an actual allegation of physical violence is not required to satisfy the requirements of this claim. It is clear that the behavior must be of such significance that it actually endangers the life of the other party.

        This misconduct claim is limited in some ways. It appears that events which took place in the distant past will not qualify as misconduct grounds. Our courts have advised that the events must be fairly recent. Otherwise, the alleging party has difficulty explaining why he or she continued to reside with the abusive party. That leads to one of the other limitations of this misconduct ground: condonation of behavior. Condonation is a term in our law which typically means a conditional forgiveness. Although the opposing party has treated you in a cruel and barbarous manner, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again. The actions which may constitute forgiveness range from words, to continued cohabitation together, to sexual intercourse. It is assumed that you have forgiven the other party because you did not separate nor seek immediate remedy for the wrongs done against you. The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her. Only if the behavior occurs again, may the aggrieved party renew these claims. The standard for the behavior after condonation is much lower, according to our courts, than for the original claims. Finally, the conduct complained of must not have been provoked. Simply put, you can not start a fight and then complain when the other party responds in kind.


      11. Indignities rendering the condition of the other spouse intolerable and life burdensome.
      12. Almost every married couple offer indignities to each other. Indignities is the catch-all term for embarrassing, humiliating, and generally treating the other party poorly. The harsh words in an argument, the refusal to assist in the marriage, staying out late at night without calling, are all potential examples of indignities. Each case is different and the court must consider the facts and circumstances surrounding the alleged conduct as well as the overall way of life of the couple. What may constitute indignities in one marriage may be commonplace communication in another. In every case, the behavior must have been intentional and willful or at least consciously by the party committing the acts of indignities. The behavior must also be repeated or continuous in order to meet the standard. In order to render someone's condition intolerable and life burdensome, our courts have required the actions to occur more than once throughout the marriage.

        Our courts have required a party alleging this fault ground to specifically set forth the circumstances of each claim, the conduct of the complaining party, and an assertion that the complaining party has taken no actions to provoke this behavior or conduct. It is not sufficient to make a general claim of indignities by the other party. Each instance must be described in order to allow the defending party the opportunity to understand the allegations and adequately respond. In the same vein, the complaining party can not make this claim if he or she has "unclean" hands. That is, one who is guilty of the same indignities will have difficulty alleging these indignities against another. Finally, the complaining party can not provoke the behavior of which he or she complains. To simply allege one has been faithful and dutiful is not enough.


      13. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets.
      14. Generally, the person guilty of the reckless spending is considered a "spendthrift". A spendthrift is a person who spends money profusely and improvidently. Upon separation, allegations often arise by the parties of reckless spending by the other party. However, the court must look to the standard of living of the parties to determine whether the spending was reckless. As means of example, one couple may eat out every night during their marriage. There could be any number of reasons for this: work schedules of the parties, they travel frequently, or simply, they are both awful cooks. Upon separation it will be difficult for one of the parties to claim the spending for food was reckless because they both voluntarily participated. On the other hand, if a spouse buys and trades a car every three months because he loves that "new car smell", a court may find this to be reckless spending of the income of the parties. The spouse making the claim will benefit from showing repeated resistance to the spending and the financial losses incurred.

        If a spouse has a quick temper and destroys property when angry or intoxicated, this constitutes destruction and waste of assets. Sometimes simple negligence may be enough. For example, a spouse's failure to have the car serviced or perform routine maintenance to the residence may cause destruction or waste of the assets. Again, each case is different and the court may be more convinced of intentional damage or waste versus someone who is simply ignorant about maintenance issues. Often a separated spouse will complain that her partner is not held responsible in the property distribution case for marital misconduct. Our statute explicitly prohibits marital misconduct from being considered in property distribution unless there is a direct impact on the marital estate. However, the use of marital assets or use of income in pursuit of improper conduct is recognized under this misconduct ground. In a situation where a spouse has used income or assets because of an affair, addiction to alcohol, drugs, or gambling, the innocent spouse may seek redress under this portion of the alimony statute.

        Finally, this misconduct ground applies to spouses to attempt to hide or divert assets. If the innocent spouse can find the secret bank accounts or show the other spouse transferred property into a relative or friend's name in order to commit fraud on the court, the same court may consider this a very significant marital misconduct ground.


      15. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
      16. Interestingly enough, the actual requirement is that the party "becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome." [underline added] The question becomes whether the use is excessive and renders the other spouse's condition intolerable and life burdensome. As with the other fault grounds, the actions must be continual throughout the marriage and each case will be decided by its own facts. There is no bright line test of what constitutes "excessive" use or what "intolerable" and "burdensome" mean. As with the other grounds, a party with unclean hands will have more difficulty in proving his case. Good indications of excessive use may include receipts from the purchase of alcohol on a regular basis, witness testimony, criminal records, medical records, and participation in support groups for alcohol and drug abuse. One may consider testimony from friends, relatives, and health care professionals regarding proving intolerable condition and burdensome life.


      17. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
      18. A sad and improper strategy spouses have used in the past to orchestrate a settlement is to "starve" the innocent spouse. In this strategy, the spouse with the money attempts to strangle the other spouse into submission by cutting up credit cards and closing bank accounts. These actions clearly are willful and meet the criteria for this marital misconduct ground.

        One must be careful to determine if the actions are willful. A simple fact of separation is that more money is now needed for both parties to maintain the standard of living enjoyed while they resided together. Unless there is significant income or assets involved in the case, it is common for both parties to suffer a reduction in standard of living upon separation. If there is no evidence that the supporting spouse is intentionally failing to provide the money, a legitimate claim under this section can not be made. A court will consider the earnings and earning capabilities of the supporting spouse when examining allegations of failure to provide subsistence. Finally, the failure must be so significant as to "render the condition of the other spouse intolerable and life burdensome." This burden will vary from case to case but it appears reasonable that the evidence must be significant to prevail. Simply being unable to go out to eat whenever you want, although unpleasant, will probably not rise to the level required by the law to prove this misconduct.


    2. The relative earnings and earning capacities of the spouses;

    3. The ages and the physical, mental, and emotional conditions of the spouses;

    4. 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;

    5. The duration of the marriage;

    6. The contribution by one spouse to the education, training, or increased earning power of the other spouse;

    7. 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 the minor child;

    8. The standard of living of the spouses established during the marriage;

    9. 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;

    10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

    11. The property brought to the marriage by either spouse;

    12. The contribution of a spouse as homemaker;

    13. The relative needs of the spouses;

    14. The federal, State, and local tax ramifications of the alimony award;

    15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;

    16. 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.

Defenses to an action for Alimony

As with PSS, there are very few defenses to a request for alimony if the dependent spouse can show all of the elements listed above. However, a claim for alimony may be valid under the letter of the law but not realistic in the bigger scheme of things. For example, even if the dependent spouse could prove all of the elements of alimony, the supporting spouse may have very little ability to provide support. Although the dependent spouse requires $1,000.00 per month from the supporting spouse in order to meet her reasonable and necessary monthly expenses, the supporting spouse may only have $50.00 available after payment of his reasonable and necessary monthly expenses and payment of the monthly debt obligations of the parties' marital estate. So, although the dependent spouse has prevailed in her claim for alimony, the victory may be hollow and even outweighed by the fees and costs incurred with an attorney to bring the action. Therefore, although not technically a defense, the reality of the situation may be that the supporting spouse simply sticks by the financial facts of the case in order to prevail.

Although alimony is based on the overall elements stated above and marital misconduct is only supposed to have an impact on the amount, duration, and manner of payment of the alimony award, illicit sexual behavior can prevent an alimony claim. (For a more detailed discussion, see the section above regarding illicit sexual behavior) If the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall not order alimony to be paid. If the court finds that both the supporting and dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be awarded or denied in the discretion of the court after consideration of all the circumstances.

If the supporting spouse can prove cohabitation on behalf of the dependent spouse, there can be no award of alimony. Cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.

Marriage on the part of the dependent spouse is also a defense to a claim for alimony. Upon remarriage, a dependent party's rights to alimony are typically terminated. The death of either party will also prevent an award of alimony.

Finally, a claim for alimony may not be made if the parties are already divorced before any claim has been made for the spousal support. In addition, no claim can be made for alimony if the parties have entered into a duly executed contract or agreement whereby these rights or claims are waived by the dependent spouse.

Effects of an award for Alimony

A party ordered to pay alimony is under an obligation to provide the support until terminated by either a date set by the court, remarriage of the dependent spouse, death of either party, or cohabitation of the dependent spouse. The party paying the support is typically entitled to tax deductions as a result and the party receiving the support is typically responsible for payment of tax on the support. If determined taxable, the support is considered income to the party receiving it.

The IRS requires several criteria to be met in order for the tax implications stated above to be in place. They are:

  • Payments must be in cash, which includes checks and money orders payable on demand;
  • All payments must be under the provisions of a divorce or separation instrument;
  • All payments must be not designated as not includible in gross income and not allowable as a deduction under the applicable IRS Code;
  • The status of the marriage has changed (ie the former spouses are not members of the same household;
  • All liability for payment of spousal support must end upon the death of the person receiving the support;
  • The spousal support payments must not be set as child support; and
  • The spouses can not file their taxes jointly for the years the spousal support is paid.

For a more comprehensive explanation of these rules, you should consult with a CPA and/or experienced family law attorney.

An award of alimony may also take the form of medical insurance for the dependent spouse. In most circumstances, the trial court will simply provide for the supporting spouse to continue to provide the coverage through his or her employment if this was the course of conduct during the marriage. Rarely will a court force the supporting spouse to search for and provide insurance coverage for the dependent spouse outside the supporting spouse's employment sponsored plan. One should be cautious about insurance coverage and the responsibility of the employer sponsored plan to remain in place. Many policies reserve the right to terminate coverage at the regular premium costs for family of employees after the parties have separated. Almost all employer sponsored policies terminate the coverage upon the parties' obtainment of a judgment of absolute divorce. However, COBRA coverage may be available and the spouse receiving the support should inquire about this coverage. With an award of alimony, the court may order the supporting spouse to simply pay an amount to the dependent spouse for the cost of replacement medical insurance coverage or for the COBRA coverage.

Although alimony is typically paid in periodic amounts (i.e., monthly payments), the law in this state provides for other arrangements. A court can order the award paid in a lump sum or transfer possession or title to real and personal property as a means of payment. That is, if the court finds that the supporting spouse has property that is owned as his separate property (free from any and all claims of ownership by the dependent spouse), a court may award that property to the dependent spouse as alimony. This is a rarely used but effective means of receiving payment. It can be particularly helpful when the supporting spouse appears to be suppressing his or her income in order to avoid an award of periodic alimony.

A court may also provide for an award of attorney's fees and costs. This award is completely in the discretion of the judge. Simply prevailing in court does not guarantee an award of reimbursement of attorney's fees. These fees may be awarded in a lump sum or paid over time. The amount of the fees may also be determined by the judge as she deems appropriate.

An award of alimony is considered final or permanent, even if the payments are for a finite period. As a result, either party may appeal an award of alimony. The award can also be modified upon application by a party and persuasion of the court that such an award is no longer equitable or necessary due to changed circumstances. For example, should the dependent party remarry or land a job paying double the income of the supporting spouse, a court may be persuaded to terminate the alimony award. In addition, the award may be terminated should the parties reconcile and resume marital relations.

The Process

All alimony lawsuits start with the filing of a civil summons and a complaint or by making a motion in an already existing lawsuit. The civil summons is simply a form designed to prove the defendant in the lawsuit has been properly served with the lawsuit. It is important to prove the defendant is aware of the alimony lawsuit. Without this proof, the court will not grant the claims for alimony. Public policy in this state demands that parties be aware of lawsuits filed against them and provided an opportunity to respond before final rulings are made by a court of law. The complaint is the original document filed with the court which sets forth the claims for which relief are sought from the court. In an alimony action, the complaint will list the elements of the alimony claim (see above) with allegations that these elements have been met and that an award of alimony is appropriate. When a motion seeking alimony is filed with the court, the elements are alleged in the same manner as with a complaint. The motion must also be served upon the opposing party but the service requirements are not as rigorous.

The civil summons and the complaint are taken by the complaining party to the office of the clerk of the civil court. These documents are filed with the clerk and a filing fee is paid. Once filed and the fee paid, the lawsuit has been initiated and file number will be given to the lawsuit. This number identifies the lawsuit and will be used from this point forward. It is the responsibility of the party filing the lawsuit to provide a copy of the lawsuit to the defendant and later provide proof of that service to the clerk of court. It is not the responsibility of the clerk or anyone else to have the complaint and civil summons served. Failure to complete this task will prevent the suit from proceeding further. Service may be accomplished a number of ways under the law, including certified mail return receipt requested, personal delivery by sheriff's deputy or process server, and, as a last resort, service via publication. Before attempting any of these methods, you should review the law thoroughly or consult with an experienced family law attorney in the area where you plan to file the lawsuit.

When filing a motion for alimony, it is presumed that the civil summons and complaint seeking other claims has been filed and properly served on the opposing party. With the motion, service is accomplished by timely providing a copy of the motion to the opposing party directly or, if the opposing party is represented, through his counsel of record. Service may be accomplished via regular mail.

When seeking alimony through a complaint, the defendant is entitled to no less than thirty (30) days to respond to the lawsuit before further steps can be taken. Once sufficient time has passed from the valid service of the lawsuit, the party who initiated the lawsuit requests the judge to review the claims made and grant appropriate relief. By appropriate relief, we mean that an award of alimony is made. When relief is sought via a motion, the opposing party does not have a set time period within which to respond. Some would argue that no reply is actually required under our laws. In either case, the request for relief is typically determined by a court at a hearing. The notice of the hearing must be provided to the opposing party in a timely manner and no less than ten (10) days before the actual hearing.

Each judicial district in North Carolina establishes local rules that direct the parties in that district how to proceed with certain claims. In support cases, many districts require the parties to file affidavits indicating their income from all sources as well as their monthly needs and expenses. These affidavits must then be served on the opposing party along with documentation to support the figures in the affidavits. Deadlines for filing and exchanging the affidavits and supporting documents are also found in these local rules. The purpose of the local rules is to ensure both the parties and the court are provided the necessary information to assess the validity of the alimony claim as well as the resulting amount, if such an award is made, required by the dependent spouse and the supporting spouse's ability to pay.

At the hearing, the initiating party may be expected to provide sworn testimony. The testimony may consist of simply reciting the facts set forth in the original complaint or motion or it may be as involved as answering questions from the judge or the opposing party. The parties may provide evidence in the form of documents and testimony from third parties. For alimony claims, the judge is the primary, and often times sole, trier of fact and rules on the evidence. Unlike with a PSS claim, in an alimony trial either party may timely request a jury be empaneled to decide whether either party spouse or both have established marital misconduct. The jury will only decide on this issue. Once they have completed this task, they will be excused and the case will be back in the sole hands of the judge. Upon the conclusion of the presentation of the evidence, the judge will make a ruling. That ruling will either grant the alimony requested or deny it. Either way, a determination will be made in the case. This written ruling can be used by both parties to prove the entry of the alimony award as of a specific date.


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In North Carolina either party may petition for alimony, but the court shall exercise its discretion in determining the amount, duration, and the manner of payment, and shall consider all relevant factors, including the marital misconduct of either of the spouses. The duration of the award may be either for a specified or for an indefinite term.
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