Spousal Support: Alimony and Post-Separation Support

Whether you want to receive or may have to pay spousal support, you need to understand the law concerning your rights and obligations.  

Here is everything you need to know about Post-Separation Support (PSS) and Alimony in North Carolina. 

Types of Alimony

There are two types of spousal support in North Carolina:

1. Post‑separation support or PSS is temporary support that is paid to a spouse who needs financial support from the other spouse after separation and until alimony is awarded, or not awarded, by agreement or by the court.
2. Alimony is support that continues either by agreement or court order, generally after the other claims asserted in the divorce process have concluded.

Who Is Eligible for Post-Separation Support (PSS) and Alimony in North Carolina?

To be entitled to either PSS or alimony, a spouse must be a financially “dependent spouse,” and the other spouse must be a financially “supporting spouse,” as those terms are defined under North Carolina law.

You are a “dependent spouse” if you can show either:

1. You do not have enough money to provide for your basic living expenses; or
2. You cannot afford your standard of living without receiving some money from your spouse.

You are a “supporting spouse” if your spouse can show that he or she is a “dependent spouse.” Generally speaking, you will be considered a “supporting spouse” if your income has been higher than your spouse’s income for several years leading up to separation and your spouse was dependent upon your income in some way.

Important: If you are a dependent spouse and have engaged in illicit sexual behavior before separation—while your spouse has not—then you are not entitled to any alimony. More about marital misconduct below.

Whether you are seeking PSS or alimony—or are concerned about paying it—the key questions are “How much?” and “For how long?” The answer, as with many legal matters, is: “It depends on the circumstances of your case.”

How Much PSS and Alimony Should I Ask For?

Unlike child support in North Carolina, there are no guidelines for determining the amount of PSS or alimony for the spouse.

For post-separation support, the focus is typically on:

• Employment income of both spouses
• Debt payments
• Reasonable monthly expenses and financial needs
• Standard of living during the marriage

Marital misconduct, which is discussed in some detail below, is generally not considered for PSS. Post-separation support may last until alimony is decided or for a shorter period of time. It all depends on what the agreement or court order says.

For alimony, courts and attorneys consider factors such as:

1. Marital misconduct of one or both spouses;
2. Earning capacity and total income of each spouse available for financial support;
3. Ages and the physical, mental, and emotional conditions of the spouses;
4. How long the marriage lasted;
5. Standard of living the spouses enjoyed during the marriage;
6. Property owned and debts incurred by each spouse;
7. Contribution of a spouse as homemaker; and
8. Needs of the spouses.

How Are My “Reasonable Needs” Determined in North Carolina?

Whether you are negotiating an agreement or the court is determining the amount and length of time for PSS and alimony to be paid, both parties need to determine their average monthly expenses, which are necessary to meet their needs and standard of living.

This is typically done using a financial affidavit, which serves as a budget detailing monthly expenses. To calculate your average monthly expenses for each category (such as food/groceries, utilities, rent/mortgage payments), you will need to review bank and/or credit card statements, bills, and any other documents that reflect your past expenses.

In order to obtain an accurate average, you should look at your living expenses for the past two to three years. For example, if you are calculating your average monthly expenses for groceries, you would look at your bank/credit card/debit card statements, canceled checks, etc., for the last two to three years to identify the grocery expenses, total that amount, and divide it by 24 months or 36 months.

How Is My Ability to Pay (or My Need for) PSS and Alimony Determined in North Carolina?

After calculating average expenses, the next step is determining disposable income—the amount available to cover monthly expenses. To determine disposable income:

1. Subtract federal and state taxes and any mandatory deductions (e.g., Social Security) from total income.
2. Compare disposable income to monthly expenses and debts. If expenses exceed income, this may support a claim for PSS or alimony.

How Is My Income Calculated for PSS and Alimony?

As with the calculation of average monthly expenses, you should look at your and your spouse’s incomes for the year before and the year of separation. However, if you or your spouse’s income fluctuates from year to year, if one of you is not reporting all income, or if personal expenses are being paid by a business, additional analysis will be required.

Sometimes, a spouse’s income fluctuates from year to year for various reasons, including situations where a spouse receives sales commissions or salary bonuses. In that case, you would average the annual income over a period of years—generally a three‑to‑five‑year period, depending on the amount and frequency of the fluctuation of income. 

Another problem occurs when one spouse is not reporting income or paying personal living expenses out of the business. If personal expenses are paid out of the business, then the amount of the expenses should be determined and considered in the income calculation. By way of example, if a spouse is paying vehicle expenses out of the business, which would ordinarily be paid by a salary, then all or some part of that annual expense would be averaged and included as a personal expense in the determination of the amount of PSS or alimony. A careful analysis of tax returns is crucial in a post-separation support and alimony case. Deductions that may be a legitimate business or real estate deductions for tax purposes are not legitimate deductions for a PSS or alimony analysis.

How Long Will PSS or Alimony Be Paid in North Carolina?

Determining how long post-separation support or alimony is to be paid is even more challenging. Some, but not all, of the factors that lawyers and judges consider are:

1. How long the marriage lasted;
2. Ages of each spouse;
3. Ability of the dependent spouse to obtain employment or re-enter the workforce;
4. Marital misconduct; and
5. The existence and ages of minor children.

Unless the dependent spouse remarries or starts living with another person (called “cohabitation“) or the dependent or supporting spouse dies, there are no guidelines to determine how long it will be paid.  

Who Decides the Amount and Duration of Post-Separation Support and Alimony in NC?

The amount and duration of PSS and alimony are decided in one of two ways: (1) By agreement of the parties or (2) by a judge. It is always better (and a lot less expensive, both financially and emotionally) if you and your spouse can reach an agreement. 

If you cannot reach an agreement, then mediation is often an effective and cost-saving alternative to litigation. A mediator—a neutral attorney or retired judge—assists in reaching a settlement. However, mediators cannot force an agreement.

If mediation fails, a lawsuit may be necessary, but this is a costly and time-consuming process.

How Should I Prepare for My PSS and Alimony Case?

Preparing for your PSS and alimony case can be complicated and overwhelming. We understand and are here to make the process as clear and as painless as possible. For more guidance and tips on how to prepare for your PSS and alimony case, view our article: “The Dollars and Cents of Separation and Divorce: Understanding Post-Separation Support and Alimony in North Carolina.”

What Is Marital Misconduct in North Carolina?

Marital misconduct may impact the amount of alimony and how long it may last. Marital misconduct could impact post-separation support as well. Some examples of marital misconduct are illicit sexual behavior, abandonment, and persistent abuse of alcohol or drugs.

Illicit sexual behavior includes about every sex act you can imagine.

What is the impact of illicit sexual behavior on alimony in North Carolina?

If the dependent spouse commits an act of illicit sexual behavior, then the dependent spouse is not entitled to receive any form of alimony. If the supporting spouse commits an act of illicit sexual behavior (and the dependent spouse has not), then the supporting spouse will be required to pay some amount of alimony for some amount of time.

If both parties commit an act of illicit sexual behavior, then it’s up to the court or the spouses/attorneys when negotiating an agreement if alimony will be paid.

What is the impact of illicit sexual behavior on post-separation support in North Carolina?

The impact of marital misconduct is somewhat different for PSS. Acts of illicit sexual behavior (and other marital misconduct) may be considered by the court. But, even if the court finds that the dependent spouse has engaged in illicit sexual behavior or any other act of misconduct, it may still award PSS.

How important are other acts of marital misconduct, such as abandonment, which may be considered during settlement negotiations or by the court? 

Generally, and unless the behaviors are really bad, these often do not play a significant factor in determining the eligibility or amount of alimony. Some examples of marital misconduct are abandonment and persistent abuse of alcohol or drugs.

What is considered abandonment in North Carolina? Is it considered abandonment if I leave my spouse?

Abandonment is another form of marital misconduct and occurs when a spouse (1) willfully ends cohabitation with their spouse without a legal justification, (2) without the intent to resume living together, and (3) without the consent of their spouse.

You may be legally justified in leaving your spouse, in which case leaving your spouse will not be considered abandonment. Such legal justifications can include leaving your spouse due to:

• acts of domestic violence
• drug or alcohol abuse
• adultery
• other acts rendering the marriage intolerable for the leaving spouse

Likewise, if you and your spouse agree to separate, then leaving your spouse will not be considered abandonment.

North Carolina also recognizes “constructive abandonment” as a form of marital misconduct. Constructive abandonment occurs when a spouse does not leave the home, but he or she commits egregious and inappropriate behavior, which may force the other spouse to leave the home.

Whether a spouse has justification to leave the other spouse is fact-specific and should be considered on a case-by-case basis.

How Do You Prove Illicit Sexual Behaviors?

Some of the evidence that is commonly relied on to prove illicit sexual behaviors includes:

• Text messages (including photographs) and emails between one spouse and the suspected person. Even if they have been deleted, a computer expert is often able to find them on the phone or computer.
• Observation/surveillance conducted by a private investigator, including photographs and video surveillance.
• Phone records showing dates and amounts of time of phone contact.
• Credit card statements showing questionable charges, such as hotel charges

The suspected person may be forced to testify as a witness in a lawsuit, although he/she may plead the 5th amendment. But, if that person does plead the 5th, the Court may legally and properly assume that illicit sexual behavior occurred. 

What if I Forgive My Spouse After He/She Commits Acts of Marital Misconduct?

If you forgive your spouse after he/she has committed marital misconduct, then your spouse may use your forgiveness as a defense to the marital misconduct playing a role in the alimony determination. Meaning that the Court will ignore the acts of marital misconduct when determining alimony.

This is referred to as “condonation”. Condonation occurs when the victim spouse (1) knew about the marital misconduct (not just a mere suspicion) and (2) forgave the other spouse and resumed or continued the marital relationship afterwards. Importantly, however, if the marital misconduct is repeated after being forgiven, then the spouse committing the marital misconduct cannot use condonation as a defense for their misconduct. 

Whether a spouse has forgiven the misconduct is very fact-specific, but typically, forgiveness is indicated by an express or written forgiveness (for example, texting or saying “I forgive you.”) or the resumption of sexual intercourse with your spouse.

Marital misconduct can have a detrimental or even fatal impact on an alimony case, but so can a spouse’s forgiveness of the misconduct, regardless of whether the forgiving spouse is the supporting or dependent spouse.

What if Illicit Sexual Behavior Occurs After the Date of Separation?

While you are free to engage in sexual acts with someone other than your spouse after the date of separation, doing so, especially immediately after the date of separation, can be used to corroborate testimony or evidence that you engaged in illicit sexual behavior prior to the date of separation.

What Are the Consequences of Failing to Pay PSS or Alimony?

It depends on whether the PSS and alimony are being paid pursuant to a separation agreement or court order. A separation agreement is merely a contract between you and your spouse. Unless certain provisions are included in the separation agreement, the remedy to enforce payment is a breach of contract lawsuit. A lawsuit for breach of contract is limited to a judgment for money against the paying spouse, which is often difficult to enforce, and, possibly, an order requiring the paying spouse to specifically perform the alimony provision agreed to in the contract.

If post-separation support or alimony is being paid by court order, the payment may be enforced by a contempt proceeding against the spouse who has failed to make it. This is much more effective because the court can send the paying spouse to jail unless he/she brings the payments current. 

One primary reason for using an experienced family law attorney in the negotiations and preparation of a separation agreement is the complexities surrounding the preparation of PSS and alimony provisions. 

Can the Amount of Alimony Be Adjusted?

When alimony is paid by a court order, then the answer is yes, under certain circumstances, which occur after alimony has been awarded by the court. The legal standard, which you will hear your attorney reference, is a “substantial change in circumstances.” If the financial circumstances of the dependent or supporting spouse change significantly, then either party may ask the court to either increase the amount of alimony, reduce the amount, or terminate it. Such circumstances include a significant increase or decrease in income (which is not a voluntary decrease) or a significant increase or decrease in living expenses.

If the parties have agreed on alimony and have a separation agreement, then generally, a clause is included in the agreement that prevents alimony from being changed either in amount or duration. The court does not have the authority to modify the alimony provision in a separation and property settlement agreement so long as that agreement has not been incorporated into a court order.

When Does Alimony End?

Unless the separation agreement or the court order provides something different, alimony will terminate when and if: (1) the dependent spouse remarries, engages in “cohabitation,” or dies, or (2) the supporting spouse dies, whichever of these events first occurs. In other words, if the supporting spouse dies before the dependent spouse dies, or the dependent spouse remarries or engages in cohabitation, then alimony ends, and the dependent spouse may not sue the supporting spouse’s estate for alimony. 

What Is Cohabitation in North Carolina?

Basically, cohabitation occurs when the dependent spouse is living with another person in a heterosexual or homosexual sexual relationship, and usually involves and situation where both are using their incomes to contribute to their mutual expenses.   

Do I Really Need an Attorney To Pursue or Defend Against a PSS and Alimony Claim in North Carolina?

Your case is unique from any other case—this is especially true for PSS and alimony cases. Consultation with an experienced family law attorney will provide guidance on whether alimony is an issue in your case and, if so, help you determine how the unique facts of your case will impact the amount and duration of alimony. 

If you have never worked with a family law attorney before, view our article on tips for selecting and working with a family law attorney.

Who Pays for Attorney’s Fees?

North Carolina allows a dependent spouse to recover attorney’s fees from the supporting spouse, but recovery of attorney’s fees is never guaranteed. The amount of attorney’s fees may be negotiated between the spouses and attorneys and included in a separation agreement, or attorney’s fees may be awarded by a judge. As with the amount of alimony, there are no guidelines to determine the amount of attorney’s fees. The amount is generally based on the hourly rate charged by the attorney and the amount of time the attorney has spent representing the dependent spouse. The bottom line is the amount of attorney’s fees must be reasonable under the circumstances. 

Why choose Ward and Smith?

Ward and Smith’s Family Law attorneys are highly skilled in every aspect of family law, including negotiating separation agreements and litigating PSS and alimony cases. Each client also receives a dedicated paralegal to assist in their case. Our family law paralegals are specifically trained and experienced in family law.

We also utilize certified family law financial planners, forensic accountants, and private investigators when necessary.

Our family law team is always concerned about being responsive to your needs.  Your case is just as important as any other case, and you should expect and will receive prompt responses to emails and phone calls.

Our goal in your case is to reach a favorable settlement without having to engage in a lawsuit. However, we are prepared to protect your interests in a lawsuit if it becomes necessary. With our offices in Wilmington, New Bern, Greenville, Raleigh, and Asheville, we are uniquely positioned to represent family law clients throughout North Carolina.