Alimony alimony

What is Alimony and Who Is Eligible for It?

Alimony is financial support which is provided to a dependent spouse from a supporting spouse. North Carolina General Statute § 50-16.1A provides the definition of a dependent spouse as a spouse who is substantially dependent on the other (supporting) spouse for their maintenance and support or is substantially in need of maintenance and support from the supporting spouse. As it can be implied from the definition, a supporting spouse makes more money than the dependent spouse.

What is the Purpose of Alimony?

Alimony is awarded to a dependent spouse in order to provide them with the same quality of life and standard of living which they were accustomed to while they were married. The court will look to what the couple achieved as a single unit and will try to make both parties financially equal.

What Factors Does the Court Consider in Awarding Alimony?

If the court decides to award alimony to a spouse, it must base its decision on several factors. § 50-16.3A discusses the sixteen factors by which a court determines the amount and duration of an award for alimony. Some of these factors include the duration of the marriage; the relative earning and earning capacities of each spouse; marital misconduct; ages of the parties.

What Factors Might Prevent or Limit an Award of Alimony?

As taken from § 50-16.3A, 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, the court shall not award alimony.

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 a dependent spouse. However, please note that the amount can be nominal.

If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.

Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court. The court will also look to any of the other sixteen factors in determining the award for alimony.

When Does a Claim for Alimony Need to be Made?

First, a party seeking alimony must file for alimony in North Carolina prior to the entry of judgement for absolute divorce. Should they fail to do so, they have waived the claim for alimony. The same rule applies to equitable distribution.

Under N.C.G.S. § 50-16.3A, a claim for alimony may be heard on the merits prior to the entry of judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or support spouse may be reviewed by the court after the conclusion of the equitable distribution claim.

It is also important to note that the court does not always have to be involved when determining alimony. Parties are encouraged to come to an agreement surrounding the terms of alimony. The parties can agree on the amount, duration, rights to modification of the amount, and when the payments will terminate. It might be a good idea to consult an experienced family law attorney for assistance in drafting a separation agreement.

When Do Alimony Payment End?

Alimony payments can be specified within a separation agreement but if they are not, payments generally end upon the occurrence of one of the following events:

  • Parties resume their marital relations;
  • The Dependent spouse remarries;
  • The Dependent spouse cohabits with another adult in a relationship, where there is a voluntary assumption of marital rights, duties and obligations. This is not dependent on sexual relations but rather, how the relationship is held out to the public.
  • The Dependent spouse dies; or
  • The Supporting Spouse dies.

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