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Most people facing divorce ask one of two questions: “Will I have to pay alimony?” or “Will my husband (or wife) have to pay alimony to me?” The following information should help you get an idea of how the law applies to you.
In North Carolina, alimony is payment from one spouse to the other after divorce. Either the husband or wife may request alimony. Alimony is available when one spouse is a financially supporting spouse and the other spouse is financially dependent. Unlike a property division, alimony exists for the support and maintenance of the dependent spouse based upon the standard of living during the marriage. Alimony can be awarded by a court or agreed to between the parties. If the parties sign a separation agreement. that includes a requirement for one spouse to pay alimony to the other, the agreement is binding regardless of whether the legal requirements for court-ordered alimony are met.
To award alimony, a court must find that one spouse is a “dependent spouse” and the other is a “supporting spouse.” A dependent spouse is a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his maintenance and support or is substantially in need of maintenance and support from the other spouse.
The dependent spouse is entitled to continue at the same standard of living that she enjoyed during the last few years of the marriage up until the date of separation. She is dependent upon the other spouse if she is currently unable or will in the foreseeable future be unable to maintain that standard of living on her own.
Just because one spouse qualifies as a dependent spouse does not necessarily mean the other spouse is a supporting spouse. The dependent spouse could be relying on someone other than her spouse for support during the marriage, such as a government agency, family, etc. To be a supporting spouse, he must provide at least part of the support the dependent spouse needs to maintain her standard of living.
Once the court determines that there is a dependent spouse and a supporting spouse, it considers the relative incomes and expenses of each spouse, the length of the marriage, and the presence of any marital misconduct on the part of either spouse in determining whether to award alimony and the amount and duration of the award. The following is a complete list of factors from North Carolina General Statute section 50-16.3A(b) that are considered to determine the amount and duration of an alimony award:
- The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date of separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property.
Illicit sexual behavior plays a special role in determining whether a court will award alimony. Illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in North Carolina General Statute section 14 27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse. Once the court finds there is a dependent spouse and a supporting spouse, it must consider whether either spouse has engaged in illicit sexual behavior. If the court finds the supporting spouse has engaged in illicit sexual behavior, the court must award alimony to the dependent spouse. If the court finds that the dependent spouse has engaged in illicit sexual behavior, the court will not award alimony. If both spouses have engaged in illicit sexual conduct, the court will consider all relevant factors to decide whether or not to award alimony. The court will not consider illicit sexual behavior that has been condoned by the other spouse. Also, these rules only apply to illicit sexual behavior that occurred during the marriage and before the date of separation. However, illicit sexual behavior that occurred after the date of separation may be used as evidence that such relations were taking place before the date of separation.