North Carolina recognizes two types of spousal support. The first type, called post-separation support, is temporary in nature and is designed to provide for the dependent spouse until the entry of an award of permanent alimony. The second type, called permanent alimony, is more enduring, but is not necessarily permanent, contrary to what the name suggests. The court has the discretion to order that an award of alimony remain in place only for a limited period of time. Importantly, an award of spousal support can be made only to a dependent spouse. A spouse is considered dependent if his or her income and resources are insufficient to meet the reasonable needs he or she has, based on the standard of living enjoyed during the course of marriage.
At a post-separation hearing, the court considers the parties accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons. It is customary for the court to consider each spouses financial affidavit that describes his or her income and expenses. Each party may also testify before the court.
If the court determines that the party seeking spousal support has insufficient resources to meet his or her reasonable needs and the other spouse has the ability to pay, the court will find the spouse seeking support to be the dependent spouse and it will grant an award of post-separation support to the dependent spouse. N.C. Gen. Stat. Â§50-16.2A mandates that in deciding whether to award post separation support and in deciding the amount of post separation support, the court shall consider whether the dependent spouse had engaged in any acts of marital misconduct prior to or on the date of separation. If the court considers these acts by the dependent spouse, the court must also consider whether the supporting spouse had engaged in any acts of marital misconduct prior to or on the date of separation.
If an award of post separation support is granted, the award continues until a date specified in the order or the entry of a final order of permanent alimony. Post separation support can be made in several different ways, such as periodic payments, a lump sum payment, or a transfer of personal property.
At an alimony hearing, as at a post separation support hearing, the court must first consider the threshold issue of whether one spouse is a dependent spouse and whether the other a supporting spouse. If this threshold issue is decided against the party seeking support, no award of alimony will be made. If the court makes a finding that the party seeking support is indeed a dependent spouse and that the other a supporting spouse, the court is then required to make an award of alimony to the dependent spouse that is equitable after considering all relevant factors. Some of the relevant factors to be considered by the court are listed below.
If, in considering an award to alimony, the court finds that the dependent spouse engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court will not award alimony. If the court finds that the supporting spouse engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court will order that alimony be paid to the dependent spouse. If the court finds that the dependent and the supporting spouse each engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court may then award or deny alimony in its discretion after consideration of all of the relevant circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party wont be considered by the court.
The court has broad discretion in determining the amount, duration and manner of payment of alimony. In making these determinations, the court is required to consider all relevant factors, including:
- the marital misconduct of either of the spouses;
- the relative earnings and earning capacities of the spouses;
- the ages and the physical, mental, 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.