Category: Alimony

Forgive and Forget: Condonation in North Carolina

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Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property.

What Are the Marital Fault Grounds?

A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “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” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7.

Consequences of Marital Fault

Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example.

What is a Defense to Marital Fault?

A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long.

The Defense of Condonation

Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation as “conditional remission or forgiveness, by one of the married parties. . . the condition being that the offense shall not be repeated.” If you forgive your spouse for having an affair, for example, you do so on the condition that he or she never cheat again. Critics of condonation argue that it discourages reconciliation because the victim of the fault can be penalized for trying to save the relationship. On the other hand, the policy makes sense when you consider a 25-year-marriage, and the prospect of arguing about an affair that happened 21 years ago. Although the law delves into the reason for the separation, it does not delve into the marriage.

How Do You Prove Condonation?

To have the benefit of the forgiveness, the condonation defense, the spouse at fault must first prove that the innocent spouse knew that the misconduct occurred. It isn’t enough that he or she suspected the misconduct happened. The second requirement of condonation is to show that the innocent spouse voluntarily chooses to continue or resume the marital relationship. This is shown in one of two ways. A spouse can directly communicate forgiveness, such as writing a letter or sending an e-mail. Or, forgiveness can be shown when the innocent spouse voluntary engages in sexual intercourse after knowing about the marital fault. But isolated acts of sexual intercourse are not enough to give a spouse the defense of condonation.

Recent Condonation Case

On December 18, 2018, the NC Court of Appeals made a ruling about marital fault and defenses to it in Gilmartin v. Gilmartin. The husband had an addiction to pornography and communicated with women online. Multiple times, he denied doing these things. When his wife discovered that he was in fact doing these things again, he admitted doing them and promised her that he would go to counseling. He continued the behavior and stopped going to counseling. When he argued that she had condoned his behavior, the Court of Appeals agreed with the trial court, that she did not condone his “continuing ‘use of pornography and online sexual solicitations’ because Husband ‘deceiv[ed]’ her into believing he had ceased the behavior.” Without knowing about the behavior, she couldn’t forgive him for it.

All About Adultery in North Carolina (Part 2 of 2)

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Duty of Third Party to Warn Spouse of STD

If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse.

Criminal Conversation

The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third-party who had sexual intercourse with his or her spouse. CC holds that third-party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse.

Divorce from Bed and Board

North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses spousal rights to certain inheritance rights, including intestate succession, which is the right to inherit if the other spouse dies without a will. Also lost is the right to take an “elective share” of the deceased spouse’s estate if the deceased spouse tried to “disinherit” him or her, as well as the right to administer that spouse’s estate as an executor or executrix.

Criminal Law

Although it is almost certainly unconstitutional, one criminal statute that is still on the books makes voluntary adultery a crime. NC Gen. Stat. §14-184 is captioned Fornication and Adultery. The statute makes it a Class 2 misdemeanor “[i]f any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together . . .” In cases for alienation of affections and criminal conversation, parties frequently used this criminal law to protect themselves from testifying. Because adultery was a crime, a person who was sued for it could plead the Fifth Amendment to avoid incriminating himself or herself. Doing so in a civil case allows the judge or jury to assume the person did commit adultery.

All About Adultery in North Carolina (Part 1 of 2)

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Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A. People have argued about which acts between the spouse and third-party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts.

Adultery and Alimony

In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A.

How Do You Prove Adultery?

Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third-party to be together in privacy? Second, if they had the opportunity to be together, were they inclined (likely) to have sex? Like any other disputed fact, witnesses may testify about the opportunity, and/or whether the spouse and third-party were inclined to cheat. Other evidence might include a secret credit card account statement reflecting hotel charges or discovered e-mails/texts between the lovers. Family law cases are bench trials, cases heard by a judge. One of the few exceptions to that rule is marital misconduct, including illicit sexual behavior. A jury can render a verdict on whether the spouse committed marital misconduct. NC Gen. Stat. §50-16.3A.

Uh Oh . . . Did You Condone It?

One defense to alimony is condonation. As the name suggests, it means all is forgiven . . . and it gives a bit of a clean slate to the cheating spouse. If the innocent spouse discovers an affair and continues to stay in the marriage, the law gives the cheating spouse a second chance. After the second chance is given, if the parties separate for some other reason later, the court may consider the affair in deciding how long alimony should be paid and in what amount. In other words, someone doesn’t automatically win or lose an alimony case because of the affair. How does the law define “staying in the marriage” and condoning the cheater? In short, the court assumes condonation has occurred if the spouses voluntarily have intercourse after knowing about the affair. Malloy v. Malloy, 33 NC App. 56 (1977). One side effect of condonation is that the spouse who would’ve automatically won the alimony case is essentially punished for trying to make the marriage work.

Marital Fault

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Although the role of marital fault has been narrowed a great deal over recent years, it is still quite alive and kicking. Fault is not a factor in the divorce itself, but it does come into play with other claims that are filed with the divorce. NC acts of marital fault are listed by statute, as well as case law, decided by the North Carolina Court of Appeals.

Adultery

The deal-breaker in cases that consider marital fault is adultery but under certain exceptions, the spouse who commits fault may be given a clean slate so to speak. There are random defenses to these fault claims, but they are beyond the scope of this article. Based on my observations over the years, adultery is by far the most litigated fault ground. It is designated by statute as “illicit sexual behavior” and it “means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in [rape laws], voluntarily engaged in by a spouse with someone other than the other spouse.” Adultery is rarely proven by a “smoking gun” complete with photos or videos, as we see on television. In real life, adultery is proven with different types of evidence, including testimony of witnesses. Alimony may be proven with a collection of evidence, taken as a whole, not just one item of evidence.

Other Acts of Marital Fault

Other acts of marital fault include maliciously turning the other spouse outdoors, and treating him or her cruelly or barbarously endangering his or her life. Also considered marital fault is a spouse being an “excessive user of alcohol or drugs” when it makes the other person’s life intolerable. Closely related to that ground is another bad behavior: “involuntary separation of the spouses in consequence of a criminal act committed.” In other words, this refers to a spouse who is incarcerated. Although the law includes “reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets,” as marital fault, it can be difficult to show the other person’s intent as it relates to their money management.

Indignities

Marital fault includes “other such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” This quaintly worded bad behavior requires more than a single time or two, which the law deems a “course of conduct.” Our courts do not tell us exactly which bad behavior is included under this definition, preferring instead to consider it on a case by case basis. Many behaviors may qualify as marital fault. One North Carolina case says behavior included in the term “indignities” includes “unmerited reproach, studied neglect, abusive language, and other manifestations of settled hate and estrangement.” However, indignities can consist of willful failure to provide necessary subsistence according to one’s means and condition. Like the reckless spending fault, this one may be difficult to unravel because people manage their finances in many different ways.

Abandonment

In short, abandonment is a marital fault consisting of one spouse leaving the other spouse without justification. One creative attorney just made up a new fault ground in 1987, and named it “constructive” abandonment. It stuck, and the NC Court of Appeals has recognized it as marital fault. Any time the law needs to prevent some injustice from happening, it may choose to essentially pretend a certain thing exists, and they say it is “constructive.” As used here, constructive abandonment means that even if the spouses are both at home and no one physically abandoned the home, the court may choose to treat a spouse as abandoning the home anyway if the behavior was bad enough.

See: NC Gen. Stat. 52-B, NC Gen Stat. 50-7, NC Gen Stat. 50-16.1A, Evans v. Evans, 169 NC App 358 (2005), and Ellinwood v. Ellinwood, 88 N.C. App. 119 (1987)

The Great Treasure Hunt: Hidden Income

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Child support and alimony cases are based on the incomes of the parties so it is important to leave no stone unturned, even if one of you has no income. North Carolina law usually counts all kinds of compensation as income, although there are some exceptions.

What Are We Looking For?

Income is not defined by salary alone. Especially with large employers or self-employed individuals, there are “hidden” forms of compensation. There are two basic kinds of income in family law. Earned income is based on employment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.) and unearned income includes everything else. Examples of unearned income include ownership or operation of a business, rents received from rental property, retirement or pensions, interest, trusts, annuities, capital gains, certain Social Security benefits, worker’s compensation benefits, unemployment insurance benefits, disability pay and insurance benefits, gifts, prizes and alimony or maintenance received from persons other than the parties to the instant action (from the NC Child Support Guidelines).

The Evidence: Tax Records

Courts first look at tax returns, which hold important clues about income. Most people know the W-2 statements include wages, tips and compensation as shown in box 1, which are taxed. But not everyone realizes box 3 of a W-2 statement reflects the social security wages, including income that isn’t taxed. If the amount of social security wages is larger, it should be used. Why? Because the larger amount includes tax deferred benefits. The most common example is an employee’s choice to make contributions to a 401(k) plan. Otherwise, several thousand dollars of income is easily missed. If someone has a 1099 tax statement, it means there is “miscellaneous income” such as money paid to that person for services as an independent contractor. A 1099-R statement is issued when a person collects retirement from pensions, annuities, retirement or profit-sharing plans, IRAs, insurance contracts, etc. Social security is shown on a SSA-1099 tax statement, which might be missed because sometimes it is taxed, and sometimes not. All of these tax statements, not just the tax returns themselves, indicate income for purposes of child support or alimony.

The Evidence: Pay Statements

While tax returns and tax statements give us a good starting point, they don’t tell the whole story. Certain benefits are disguised because they are voluntarily payroll “deducted” from someone’s pay. However, many of those deductions represent compensation the employee chooses to divert, so they are really income. This is because they are tax-free, tax-exempt or pre-tax benefits, so they won’t appear on the W-2 statement at all. One common example of a pre-tax payroll-deducted benefit is an employee’s payment for health, vision, and/or dental insurance. Those payments are made by the employee from his or her pay but because they are not taxed, they generally won’t be included on the W-2. Tax-exempt benefits include military disability payments and most military allowances, such as BAH and BAS, which usually aren’t even shown on the tax return. This is why it is a good idea to get the final pay statement or other statement that shows all compensation, taxed or not taxed, as of December 31st.

The Evidence: Self-Employment Business Expenses

The scope of this subject is too broad for this article but the general overview involves income disguised as business expenses. If these appear on the tax returns, most of the time they won’t be detailed enough to properly identify them without further investigation. Loans from the business to the business owner can be big-ticket forms of income even though they appear to be debts. Other “business expenses” include fringe benefits like free housing and company-payment of cell phones, health insurance, or credit cards. Some companies pay not only vehicle payments but gas and insurance. Typical travel expenses (or reimbursement of expenses) such as lodging, mileage and food also frequently masquerade as business expenses. While these expenses may be perfectly legitimate for IRS purposes, judges in family court will usually include them as income to the extent it is appropriate under the circumstances. The NC Child Support Guidelines count these benefits as income to the business owner by the company are considered income if they are significant and reduce personal living expenses.

What Do Judges Consider in Alimony Cases?

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The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary.

Alimony Factors: Incomes/Benefits

NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts.

Alimony Factors: Each Person’s Situation

The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered.

Alimony Factors: History of the Marriage

The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider 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.”

Alimony Factors: Miscellaneous

The court looks at family obligations, such as paying child support for children with another parent, or alimony to a former spouse. Courts usually have the trial for equitable distribution (the division of marital property and debt) before the alimony trial. This is because the judge will look at who kept which assets, and who is responsible for various marital bills, which is important when determining each party’s reasonable expenses. If someone brought assets into the marriage, the court has the right to consider. The federal, state, and local tax ramifications of the alimony award are legitimate factors for the judge to weigh in making an alimony award.

The factors are meant to guide judges in reminding them of the most important things to think about when deciding what to order in alimony cases. The flexibility is there but just in case, the statute also tells judges that they are free to consider “Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.” NC Gen. Stat. §50-16.3A.

Grey Divorce: Issues For Older Spouses

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Middle-aged and older spouses have the same issues as other couples when they separate and divorce, although they are viewing them from the other direction. They don’t usually have any minor children but they often have substantial assets. People in second or third marriages are more likely to have premarital agreements or “prenups” that dictate what must be done about property and alimony if the couple splits. Another likely scenario of those with silver hair and more than one marriage under their belts is tracing property.  In our state, tracing is used to decide what share of an asset is separate property, and what share, if any, is marital property. This is expensive and time-consuming especially when addressing real estate, investment and retirement accounts. Therefore, this article assumes all assets are marital property and that there is no premarital agreement.

Alimony & Expenses

North Carolina courts must consider the incomes and reasonable expenses of both spouses in alimony cases.  Spouses who are nearing age 65 are facing Medicare and “doughnut hole” insurance instead of private insurance. Medicare could make things better or worse financially when compared with the health, vision and dental insurance offered by a spouse’s employer and whether the employer paid at least part of the premiums. Settlements and court orders for people nearing 65 typically take this into account, changing the amount of support once one or both spouses have Medicare coverage. Older spouses routinely lose loved ones and inherit property. While inheritances are usually considered separate property, assets such as rental property or investments are considered income for purposes of alimony.

Alimony: When Should You Retire?

When alimony is looming, parties may bicker about the reasonable age that the breadwinner or the financially dependent spouse should retire. Although it is extremely rare, I’ve actually had a case in which the judge ruled that the breadwinner couldn’t afford to retire at a certain age.  Of course, he was legally free to retire any time but his alimony was still ordered based on the same income he had from his employment. Judges consider a number of things when deciding if someone should be able to retire for purposes of determining income for an alimony case, including age, health, work history and whether the spouse is genuinely ready to retire or just saying that for court.

Parties might dispute the choice of a retired spouse not to charge adult children for work-related childcare of grandchildren. Spouses can disagree about the timing of a spouse electing to receive Social Security retirement payments, which vary in amount depending on what age the person is. Life insurance becomes more important when dealing with older spouses, particularly if a spouse is depending on alimony that ends if the other spouse dies.  When someone retires, they often lose the term life insurance that is offered by many employers. Another dilemma can arise when the policy was purchased when the insured spouse was young because the cost of buying that protection now would be prohibitively expensive.

Marital Property

Divorcing couples may decide that it makes sense to have one spouse stay in the home and “buyout” the other spouse’s share, which might take less time and involve less risk than trying to sell it.  When there is no mortgage to consider, the cost for that buyout can be too high when there aren’t lots of liquid assets to make up for it. In that event, they will probably end up selling the home and dividing the proceeds, which might raise tax issues if a spouse doesn’t intend to purchase another home with his or her share of the sales proceeds.

Couples who are retired don’t usually have the same opportunity to rebuild financially as those who divorce in their thirties or even forties. So, when pensions or other retirement benefits are the only income besides social security, dividing them equally is a financial hit that can’t easily be absorbed. There are tax penalties for those who take a distribution of money from their retirement before 59.5 years old. On the other hand, when there are IRAs or other accounts that allow owners to choose the dates and amounts of money to withdraw, there might be RMDs (required minimum distributions) of retirement. When spouses have multiple retirement vehicles, some might be taxed differently, such as the Roth IRA versus the traditional IRA. Accordingly, each one has advantages and disadvantages even if they appear to be equal in value. Other benefits might be tax free, such as military disability, which is separate property but counts as income for alimony.

Getting Attorney’s Fees in Family Law Cases

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In North Carolina family law cases, a party may seek attorney’s fees in court cases involving child custody and support, and for temporary and permanent alimony, among other claims. With a couple of rare and unique exceptions to the rule, attorney’s fees aren’t usually available to be awarded by the court in equitable distribution cases for division of marital assets and debts.

Child Custody and Support Claims

The law permits parents to ask the court to award attorney’s fees in child custody and support cases, including cases when a parent files a motion to modify the order that is already in place. There are three requirements. First, the person asking for fees must be an “interested party” meaning he or she is someone entitled to exercise the legal right to participate in the lawsuit. Second, the person must be acting in good faith, not filing a frivolous claim. The third requirement for the court to address is whether the person “has insufficient means to defray the expense of the suit.” In other words, the person had to turn to the courts to get help, which has created a financial hardship.  If the claim was for child support there is a fourth requirement. The parent who should be paying support “has refused to provide support which is adequate under the circumstances.” If the parent files a frivolous claim, the court is also entitled to award fees to the other parent. NC Gen. Stat. §50-13.5

Alimony and Temporary Alimony

If the court awards alimony or temporary alimony, called postseparation support, the judge has the authority to award attorney’s fees if the financially dependent spouse doesn’t have sufficient means to subsist during the pending case. That means the dependent spouse can’t meet living expenses until the judge enters an order for alimony. As is the case with children’s claims, the court must rule on whether the dependent spouse “has insufficient means to defray the expense of the suit.” These requirements also apply when the dependent spouse files a motion to modify the alimony. NC Gen. Stat. §50-16.4. At the trial, the attorney submits an affidavit about the fees, along with billing statements to show what has been paid. The judge generally confirms the fee is reasonable, considering the attorney’s skills and qualifications, and the type of work the attorney performed. Customarily, the client has to pay the attorney at the beginning of the case. If the fees are awarded, they are either reimbursed to the client or applied to any outstanding balance the client owes to the attorney. As is the case in so many family law cases in North Carolina, the judge has broad discretion when ruling on fees. A judge is free to order some, none or part of the fees requested.

Untying the Knot: Alimony in Our State

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The law in North Carolina defines alimony as payment for the support and maintenance of a spouse or former spouse. A judge may order it in monthly payments, a lump sum and possibly by payment of certain expenses, such as health insurance. Temporary alimony is called post-separation support (PSS), which the court may award on a temporary basis at the early stage of a lawsuit, pending the alimony trial.

The Background & Controversy

The concept of alimony is somewhat controversial. Although men are free to seek alimony if they meet the legal requirements of dependency, it is overwhelmingly women who are financially dependent. Those who don’t think alimony is necessary point to the changing role of women over recent decades. They argue alimony keeps financially dependent women in a dependent position, and discourages them from becoming more financially independent. Proponents of alimony see it as a form of compensation to protect the spouse who, for a number of years, limited or forfeited a long-term earning capacity and the associated contributions necessary to grow a retirement. A spouse might make individual financial sacrifices in exchange for the betterment of the family unit, often when caring for the children. This allows the other spouse to devote his or her attention on a career, perhaps acquiring a degree, traveling or relocating on a regular basis, or creating and/or operating a small business.

Who Can File an Alimony Claim?

In our state, the law allows either spouse to ask for alimony if that person meets the other requirements. The most important requirement is financial dependency by one spouse, who is financially supported on the other. There must be a significant difference in their earned incomes, and/or unearned incomes such as investment dividends. If the spouses have the same level of income, there is no supporting spouse or dependent spouse, both of which are mandatory for the court to award alimony.

How is It Calculated?

North Carolina judges have a great deal of discretion when ruling on the amount of alimony to be paid, and how long it must be paid. There are no guidelines for alimony, as there are in child support cases. For each party, the judge reviews a financial affidavit, which is essentially a budget that includes living expenses and debts. From that, the court will decide the fairest way to address alimony, taking into account the needs of both parties. Judges are required to consider any evidence of marital misconduct, if either party offers it. Other considerations judges must consider include the ages and the physical, mental, and emotional conditions of the parties, as well as the length of the marriage, and any contribution of a spouse as homemaker. Alimony has specific tax consequences to be considered.  Another important consideration is the standard of living the couple established during the marriage.

When Does Alimony End?

The court sometimes directs alimony to be paid for a specific time period. If a spouse is in school earning a degree, or is only a few years away from drawing retirement, judges might tie the alimony award to coincide with these events. It is likely a judge will order permanent alimony if the parties have been married for over twenty years. There are several grounds that can terminate alimony sooner than what the judge orders.  When the recipient of alimony remarries, alimony ends. Odd as it sounds, alimony ends when either party dies. This means the estate of the deceased spouse has no ongoing alimony obligation, nor can the estate of the deceased spouse be entitled to it.  Alimony will also be terminated if the court finds that the alimony recipient lives with a romantic interest (i.e., cohabits).  The law defines “cohabitation” as “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.” NC Gen. Stat. §50-16.9.