Many people facing the prospect of legal separation and divorce in North Carolina want to know about alimony. One of the more common alimony questions is “How long can I receive alimony?” or “How long will I have to pay alimony?” Typically, the duration of alimony is based on the list of factors found in North Carolina General Statute section 50-16.3A. However, no matter if the court orders alimony to be paid for one year or permanently, there are some events, like death or remarriage of the spouse receiving alimony, that automatically terminate the payments.
This has many clients asking another question: “Can alimony continue after remarriage of the receiving spouse?” In North Carolina, the answer is yes. Even though a court can not award alimony that will continue after the remarriage of the receiving spouse, the parties can agree to such an arrangement in a Separation Agreement and Property Settlement.
Why can the parties agree to alimony that persists beyond the dependent spouse’s remarriage when the law prohibits a court from ordering the same thing? The reason comes from contract law. A Separation Agreement derives its enforceability primarily from the same set of laws that govern other contracts between consenting parties. Contract terms are generally enforceable as long as the parties enter into the contract voluntarily and the terms do not violate public policy and are not unfair in the extreme. Therefore, a Separation Agreement that says one spouse will pay alimony to the other for a certain time and that the alimony payments will continue even after the receiving spouse remarries is enforceable under contract law as a bargained-for benefit.
There are a couple of things to be aware of if you want to your post-remarriage alimony provision to be enforceable:
- Remember That The Separation Agreement Is A Contract. This means that each party must give up something, either property or some other right. This is not generally an issue with a Separation Agreement because each party is foregoing the right to have a court decide the issues in the divorce and usually the agreement involves concessions on each side. However, it doesn’t hurt to recite what each side is giving up as well as to sign the document under seal, which creates an implication of mutual consideration.
- Don’t Incorporate Your Agreement – Allow the Agreement To Continue To Be Governed by Contract Law. It is common practice to have your Separation Agreement and Property Settlement incorporated or merged into the divorce decree. This turns the agreement into an order of the court, which can be good for easier access to enforcement by contempt. However, it also makes the agreement modifiable according to the rules for modifying court orders. There is always a possibility that circumstances could change down the road and one party or the other could try to have the agreement modified, in which case the judge could override the post-remarriage provision in the agreement. If the agreement is not incorporated but instead remains governed by contract law, a court will not have authority to modify its terms. Instead, the Separation Agreement can only be modified by mutual consent of the parties.