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Alimony

Alimony awards are similar to awards of Post Separation Support (PSS), but these two types of Spousal Support differ in several critical aspects. Alimony is a permanent order that requires the supporting spouse to pay the dependent spouse a specific amount of money as spousal support either periodically or in one lump payment. If periodic, the payments may be ordered for a specific period or to continue indefinitely. Because of the more substantial and permanent nature of an alimony award, the courts consider more factors in making the determination. There are a number of factors a court must consider which are provided by statute under N.C. Gen. Stat. § 50-16.3A, such as:

  • Marital misconduct;
  • The relative income and earnings of the parties;
  • The health, age, and general condition of the parties;
  • Any unearned income of the parties such as dividends, retirement funds or social security;
  • How long the marriage lasted;
  • Any payments made by either spouse to further the other’s career, such as for education or training;
  • The effect of caring for a child on the earning power of the spouses;
  • The standard of living to which the spouses have become accustomed during the marriage;
  • The education of the parties and their ability to find ample employment opportunities;
  • Any debt or legal obligations of support of the parties;
  • Any property owned by the spouses individually prior to marriage;
  • The value and benefit contributed by either spouse as a homemaker;
  • Tax implications of any alimony award; and
  • The reasonable needs of either spouse in general.

Marital misconduct, the first factor listed above, is one of the most heavily litigated factors. Illicit sexual behavior committed by the dependent spouse before the date of separation, assuming none by the supporting spouse, will completely bar an award of alimony. The other side of that coin is that illicit sexual behavior committed by the supporting spouse before the date of separation, assuming none by the dependent spouse, will guarantee an alimony award. If both parties have committed illicit sexual behavior prior to their date of separation then the Court is able to consider both parties’ acts in determining alimony. Most often, evidence of illicit sexual behavior will impact the amount, duration, and manner of payment of the award.

Marital misconduct may also take the form of reckless spending of marital funds, abuse of drugs or alcohol, abandonment, or involuntary separation. Furthermore, cruel treatment that embarrasses or humiliates the other spouse can constitute marital misconduct. For example, a court will often consider acts like name-calling, staying out all night without calling, or refusing to help support the marriage as marital misconduct. Of course, every situation is different and courts take into account the conduct of both parties. North Carolina courts order alimony awards considered reasonable after considering the totality of circumstances.

Complex tax implications often arise as result of alimony awards. The party ordered to pay alimony is usually entitled to IRS tax deductions for those sums paid, while the receiving spouse typically must include the sums paid as income for tax purposes. The IRS promulgates a number of criteria for these tax implications to take effect, such as the method of payment, the status of the marriage, the prior tax filings of both spouses, and other relevant factors.

As is discussed on the Spousal Support page, the hard numbers for each party’s monthly income and monthly reasonable needs and expenses are vitally important for the analysis of any Alimony case. For this reason, it is often difficult for a divorce lawyer to accurately analyze the case.

Finally, it is worth noting that there is a right to a jury trial on the issue of marital misconduct by the parties. This is to say that, while the rest of the case must be considered by a Judge sitting in District Court, the issue of whether a party committed marital misconduct can be presented to a jury of twelve citizens if a jury trial is demanded by either party.

If you have concerns about your entitlement to, or your exposure for, alimony payments under North Carolina law then contact Arnold & Smith, PLLC to consult with an experienced family law attorney about your rights.