"Alimony is a system by which, when two people make a mistake, one of them keeps paying for it." — Peggy Joyce
Pop Quiz: What do The Three Musketeers, business partnerships and marriages have in common? “Tous pour un, un pour tous” – “All for one, one for all.” Through his fictional Musketeers, French author Alexandre Dumas animated an organic allegory of selfless dedication to the well being of others. While each Musketeer is distinctly an individual, so too is each an integral part of something greater: a brotherhood, a partnership, a family – all for one, one for all. In simplest terms, two people who join in partnership of any fashion create an entity, a sphere of trust and confidence wherein each is bound first to think of the other and the whole.
Partners are fiduciaries; partners owe each other special fiduciary duties of trust and confidence. Partners are bound to act in good faith and must consider the impact of their actions foremost on their partners. North Carolina follows a partnership theory of marriage. Reconsider hypothetical partners John and Jane, now married for 25 years. John is a supporting spouse, the “money partner” who works 40 to 60 hours a week and makes a lot of money for the marriage partnership. Jane is a dependent spouse, the “sweat equity” partner who gave up her career to work in the home raising children, cooking the meals and keeping the “family ship” afloat. John and Jane owe each other special fiduciary duties to support each other and contribute to the marriage, and the law values John and Jane’s contributions equally. When business partnerships end, so too end the fiduciary duties partners owe each other. When marriage partnerships end, however, some of the duties marital partners John and Jane owe each other live on. Post-Separation Support and Permanent Alimony are income continuations that John pays to Jane and represent extensions of marriage partnership duties beyond separation and divorce.
Quite simply when partners with disparate incomes divorce, fairness dictates that the financially disadvantaged spouse – most often the woman – be given ongoing assistance by the spouse with the ability to do so. Through Post-Separation Support and Permanent Alimony the Court attempts to balance Jane’s lifestyle and financial needs with John’s ability to pay, to assure that Jane’s permanent contributions to the marriage partnership – the home, children and lifestyle they both enjoyed – are addressed by leaving her able to provide for her needs through divorce and beyond. In deciding the amount and duration of Post-Separation Support and Permanent Alimony the Court considers a number of financial factors including Jane’s financial needs and John’s ability to pay support, and any Marital Misconduct by either partner.
“Marital Misconduct” describes actions that are so offensive to the duties married partners owe each other and the marriage that one may safely conclude the offending partner simply doesn’t care about his partner or the partnership. Marital Misconduct can influence a Judge’s decision concerning Post-Separation Support, but doesn’t prevent, or bar, a Post-Separation Support claim. Illicit Sexual Behavior (an “affair’) may bar, or mandate, a Permanent Alimony award: 1) if Jane had an affair she will not receive Permanent Alimony regardless of her dire financial need for support; 2) if John had an affair, and Jane remained faithful, he is obligated to pay Permanent Alimony to Jane even though he may disagree. In all cases the amount and duration of Post-Separation Support and Permanent Alimony are within the discretion of the Court. Click on the link below to read more about Post-Separation Support and Permanent Alimony, or skip straight to Frequently Asked Questions – Post-Separation Support And Permanent Alimony for answers to the most common questions we hear every day.
Post-Separation Support and Permanent Alimony claims are addressed in separate hearings and take into account a variety of factors that we highlight in this discussion.
The first hearing for Post-Separation Support is usually held in conjunction with hearings on the issues of Child Support and temporary Child Custody. At a hearing on Post-Separation Support, a Judge (without a jury) will hear the evidence and determine if one spouse is a dependent spouse, if the other is a supporting spouse, and award or deny Post-Separation Support taking into account: 1) the financial needs of both parties and their accustomed standard of living; 2) the present employment income and other recurring earnings of each spouse and the earning abilities of both spouses; 3) the separate and martial debt obligations; 4) the necessary living expenses of both spouses; 5) each spouse’s respective legal obligations to support any other person; and, 6) the marital misconduct (discussed below) of either, or both spouses occurring on or before the date of separation. In practice, Post-Separation Support claims are decided on the basis of a document called a “Financial Standing Affidavit,” which is rather like a typical income statement, that outlines each spouse’s income and expenses for the separate households they each maintain after marital separation. N.C. Gen. Stat. § 50-16.2A (a) requires that the same be filed with a claim for Post-Separation Support and forms the factual basis for the relief sought.
As a general matter, a dependent spouse is entitled to Post-Separation Support if, based on consideration of the factors outlined above, the Court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay. Marital Misconduct, while relevant, does not preclude a dependent spouse from receiving Post-Separation Support as it bars a claim for Permanent Alimony.
The Court will decide the amount and duration of Permanent Alimony, taking into account your “Financial Standing Affidavit” and a lot of additional factors and evidence including:
- The marital misconduct of either spouse;
- The relative earnings and earning capacities of the spouses;
- The ages and physical, mental, and emotional conditions of the spouses;
- The amount and type of earned and unearned income of both spouses, including but not limited to salaries, wages and self-employment earnings, dividends, and benefits such as medical, retirement, insurance, and social security;
- 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 serving as the custodian of a minor child;
- The standard of living the spouses were accustomed to during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the dependent spouse 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 a homemaker;
- The relative needs of the spouses;
- The federal, state, and local tax ramifications of the Permanent Alimony award; and,
- Any other factors relating to the economic circumstances of the spouses that the Court finds to be just and proper.
“Marital misconduct” is the great equalizer in Post-Separation Support and Permanent Alimony litigation and is best analogized by reference to one’s particular view of the marriage partnership and treatment of one’s marriage partner. “Marital misconduct” describes acts or actions taken in disregard of the promises of good faith, care, loyalty and fidelity exchanged to evidence one’s marital partnership commitment to the other. Either or both parties may have a jury trial to determine whether the other has committed any acts of marital misconduct; however, only a Judge decides the amount and duration of Post-Separation Support and Permanent Alimony. Acts of marital misconduct include:
- Illicit Sexual Behavior, meaning acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in North Carolina criminal statutes, voluntarily engaged in by a spouse with someone other than the other spouse;
- Post-Separation Support. If only the dependent spouse participated in illicit sexual behavior, then the Post-Separation Support may be awarded to the dependent spouse on a temporary basis, even though Permanent Alimony is denied all together.
- Permanent Alimony. If only the dependent spouse participated in illicit sexual behavior, Permanent Alimony is denied completely. If only the supporting spouse participated in illicit sexual behavior, Permanent Alimony is mandatory. If both spouses participated in illicit sexual behavior, then Permanent Alimony shall be denied or awarded at the discretion of the Court.
- Causing an involuntary separation by a criminal act, leaving the other spouse in prison;
- Maliciously turning a spouse out of doors, by forcing him/her to leave;
- Cruel and barbarous treatment endangering life;
- Causing “indignities” that make an intolerable condition and burdensome life;
- Reckless spending, or the destruction, waste, diversion, or concealment of assets;
- Excessive use of drugs or alcohol; and,
- Failing to provide necessary subsistence.
Condonation and Forgiveness.
After becoming advised of your spouse’s illicit sexual relationship with another, if you and your spouse resume your marital relationship or have sexual relations a Court may rule that you have condoned, or forgiven this prior illicit sexual behavior. In the end if your marriage fails, you will not be permitted to use those acts as a factor to support your Permanent Alimony claim. In other words if you take him back and act like nothing happened, you must live with your decision.
Termination And Duration of Post-Separation Support and Permanent Alimony.
Post-Separation Support is meant to be temporary in nature and usually terminates 1) on a date specified by the Court, 2) upon the entry of an order awarding or denying Permanent Alimony; 3) upon the dismissal of the Permanent Alimony claim; 4) upon the entry of a judgment of absolute divorce if no Permanent Alimony claim is then pending at the time of entry of the judgment of absolute divorce; and, 5) upon the death, remarriage or cohabitation of the dependent spouse.
Permanent Alimony is meant to be enduring and the Court is given wide latitude and discretion in setting the amount, duration and structure of any Permanent Alimony award. There are no formulas for determining the amount and duration of alimony under North Carolina law: the question “How much alimony will I get?” is, quite simply, impossible to answer with any certainty. In fact the certainty is that the Court must consider all of the above factors in making any Permanent Alimony award and make specific findings of fact to support its decision. In any event and no matter the duration, Permanent Alimony terminates upon the death, remarriage or cohabitation of the dependent spouse.
Modifying Post-Separation Support Or Permanent Alimony.
Either spouse may make a motion to increase or decrease a Post-Separation Support or Permanent Alimony amount at any time based upon a change of circumstances. The law imposes particular requirements on proving changes in circumstances and typically this proof requires more than just a slight increase in one spouse’s income over that of the other spouse. However, if Permanent Alimony is being paid in accordance with, or under, a separation agreement, it may be designated as “non-modifiable” except in circumstances set forth in the agreement. Your attorney will play a crucial role in negotiating the terms of any agreement that addresses Permanent Alimony.
You must make your claims for Post-Separation Support or Permanent Alimony to your absolute divorce or you will be forever barred from seeking those claims. A divorce will not automatically terminate a pending Post-Separation Support or Permanent Alimony claim. The claim for Permanent Alimony may be heard on the merits prior to or after the entry of judgments for Equitable Distribution and Absolute Divorce. If Permanent Alimony is awarded, the Court may review the issues of the amount and whether a spouse is a dependent or supporting spouse after the conclusions of Equitable Distribution and Divorce.
Taxing Permanent Alimony and Post-Separation Support.
When the parties file separate tax returns and reside in separate households, Permanent Alimony payments are taxable income to the dependent spouse and are tax deductible to the supporting spouse. The taxation of support payments is a complex analysis determined principally by Federal law under the Internal Revenue Code. Should you desire another outcome please ask us about the technical rules that affect the taxability of support payments. We are trained in accounting, economics and taxation: we have the answer to any tax question that may come to mind.