Post-Separation support is temporary in nature, while alimony is typically longer in duration. Either party may move for post-separation support in North Carolina. The court can consider:
Finally, the court may make an award of post-separation support if 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.
Alimony can be awarded in cases where a court in North Carolina finds that the moving party has met the burden of proof. Alimony can be awarded for several years and possibly permanently. That Alimony can be awarded upon a finding a that a party is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors. The relevant factors include, but are not limited to:
Acts of marital misconduct can affect ones liability and/or eligibility for alimony. 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. Spouse may request a jury trial on the issue of marital misconduct.
In North Carolina there are two types of spousal support. There is post separation support and alimony. Post Separation Support is temporary support. It is based upon a spouse’s financial needs. Following post separation, alimony may be awarded. In alimony cases the court not only considers dependent spouse’s needs, but also considers many other factors including, but not limited to: marital misconduct commited by either party, the age and health of the parties, each party’s incomes, the length of the marriage, and other factors pursuant with the North Carolina General Statutes.
First, in order for the court to award alimony, the court must find that one spouse is “dependent. Pursuant with the N.C. General Statutes: “The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.
To be “actually substantially dependent,” and thus entitled to alimony, a spouse must have an actual dependence on the other in order to maintain the standard of living to which he or she became accustomed during the last several years prior to the spouses’ separation. To be “substantially in need of support” means that the dependent spouse would be unable to maintain his or her accustomed standard of living established prior to separation without financial contribution from the other.
Typically if your spouse makes significantly more money than you do, you are a dependent spouse.
The statute lists sixteen (16) factors for the court to consider, which are:
1. Marital misconduct
2. The relative earnings and earning capacities of the spouses;
3. The ages and the physical, mental, and emotional conditions of the spouses;
4. 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;
5. The duration of the marriage;
6. The contribution by one spouse to the education, training, or increased earning power of the other spouse;
7. 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;
8. The standard of living of the spouses established during the marriage;
9. 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;
10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
11. The property brought to the marriage by either spouse;
12. The contribution of a spouse as homemaker;
13. The relative needs of the spouses;
14. The federal, State, and local tax ramifications of the alimony award;
15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;
16. 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.
Typically if the dependent spouse engages in an affair, they are barred from being awarded any alimony.
You will need to provide your financial statements, any and all income records, credit account statements, bank account records, other documents to demonstrate your monthly income and expenses. This will help our attorney prepare your spousal support case, as these documents will be needed in preparing a financial affidavit to be used at the hearing. For an alimony trial, any additional information you can provide to the court regarding your spouse’s conduct (or misconduct) during the marriage can be particularly helpful.
There are many ways to defend against an alimony claim. One of the most effective methods is to have a full grasp of the true expenses and financial needs of both parties. This may require appraisals on real property, businesses owned by the parties, and even on certain items of personal property. Another common defense is to present evidence of marital conduct, such as adultery, committed by the spouse seeking the alimony.
Child support can be filed at any time.
Yes, unlike child support, alimony is considered taxable income. Under federal and state income tax law, alimony is deductible by the payor spouse and reportable as income to the dependent spouse, provided that the following criteria are met:
1. The payments are in cash and not in kind;
2. The payments are made incident to divorce or to a separation agreement;
3. The parties have not designated the payments as non-alimony;
4. The parties are not living in the same household;
5. The payor has no liability for payment after the death of the payee spouse.
Family Law is an area of law that focuses on family disputes and obligations. This includes issues such as child custody, child support, divorce, property division, spousal support, domestic violence, and adoption.
It can also involve certain “heart balm actions”, more commonly known as Alienation of Affection and Criminal Conversation lawsuits, which are allowed in only nine states, including North Carolina. This field of law is one of the most contentious and difficult areas of law to navigate, and it is important that you seek someone who is skilled and knowledgeable in this type of practice.
Often times, the parties are able to resolve custody issues by agreement or in mediation. However, if a custody case goes to court, the judge will focus on what is in the best interests of the child in determining with whom your child will reside. This forces the court to direct its attention primarily to you and your spouse, examining your conduct in the past and in present to determine how you will parent your child in the future. The trial judge is given wide discretion in his or her determination of one parent’s fitness or the other, and appeals are very limited in this kind of litigation because courts of appeal are often unwilling to overturn a ruling by the trial judge who presided over the proceedings.
Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court. In disputes involving child custody and/or visitation, it is important that you have the necessary and effective tools to resolve these conflicts.
North Carolina is a “no-fault” divorce state. Neither party to the divorce is required to claim their partner is at fault for the breakdown of marriage. Accordingly, the only requirement to receive a divorce in North Carolina is that you have been a resident of the state for at least six months preceding the filing of your Complaint, and that you have been separated from your spouse for at least 12 months.
Separation occurs when one party leaves the marital residence. However, divorce is often accompanied by other issues including, but not limited to: child custody, child support, property division, and spousal support. If claims for spousal support and/or property division are not filed prior to the entry of the divorce, they are often times lost forever.
For various reasons, parents often have to relocate. As a result, custody disputes often occur and have to be resolved. If court action is needed, the court considers many issues including: the reason for the move, what benefit to the child the move will have, and what impact the move will have on the other parent’s access.
Child relocation is a complex endeavor, and it is important to have a skilled advocate to assist you in this type of action.
Property division in the state of North Carolina is referred to as equitable distribution. At any time after the parties separate, either party may file an action for equitable distribution. A final equitable distribution judgment may be rendered either before or after the parties are divorced, at the discretion of a judge. If the judgment is being entered by consent, the parties themselves can stipulate to do so prior to the divorce.
There are many factors the courts consider during an equitable distribution matter. In North Carolina Property is classified as marital, separate or divisible. Before any equitable distribution case goes to mediation or to Court, it will be necessary to identify and ascertain the values of all real and personal property, as well as debts acquired by the parties during the marriage. Further, it is important to consider the tax consequences to either party based upon the distribution of many assets.
For most parties, child support is calculated pursuant to the North Carolina Child Support Guidelines. Exceptions to this are parties whose combined gross monthly income exceeds $25,000. The factors used to calculate a parent’s child support obligaton are: both parties gross monthly incomes, other children not of this relationship, health insurance costs, work-related daycare costs, and other extraordinary expenses.
In some cases, a party can seek to deviate from the guidelines. Further, if you are a business owner or an independent contractor, it is important to determine your accurate amount of gross income. In addition, child Support can be awarded retroactively, depending on certain circumstances.
Permanent Orders for Child Custody can be modified. In order to modify a child custody order, a party must show that there has been a substantial change of circumstance affect the child’s welfare since the entry of the last order. The moving party must be able to show the court that it is in the best interest of the minor child or children to change the current custody arrangement.
Similarly, a party seeking to modify a prior child support order must also show the Court that a substantial change in circumstances has occurred since the entry of the prior order such as a significant change in the income of one or both the parties or a change in the needs of the child. Often times, these motions go hand in hand, as any change in custody would likely lead to the need to change a prior order on child support.
Spousal Support in North Carolina is found in the form of Post Separation Support and Alimony. Post Separation Support is temporary support awarded after the parties separate and paid by the supporting spouse to the dependent spouse. Unlike Alimony, post separation support is not fault-based and is only based upon the financial needs of the parties. The amount of post separation ultimately awarded is based upon the reasonable needs and expenses of the dependent spouse and the shortfall he/or she has at the end of each month.
Alimony is a separate claim from post separation support and must be filed before your divorce is final. Unless otherwise resolved in mediation or by consent, the Court will determine how much alimony, if any, a party is entitled to after consideration of multiple factors. This is where fault comes in, and marital misconduct committed by either party is one of sixteen factors considered by the Court in an alimony case. It is important to hire a family law attorney with expertise in this area, whether you are making this claim or defending yourself against one.
Domestic Violence Protect Orders are commonly known as restraining orders. In North Carolina, you can file for a Domestic Violence Protective Order against a family member, a spouse or domestic partner, a current or former household member or a person you are dating or have dated. Some of the grounds for protective order are: a party causing or threatening to cause bodily injury to another, harassment, and/or placing a party or their family in fear of imminent bodily harm or injury.
A judge can issue an ex parte temporary order that will go into immediate effect without the respondent having a chance to present evidence or testimony. This order usually lasts about 10 days, but will not go into effect until the respondent is served with a notification. A permanent domestic violence order requires a full court hearing where both you and the respondent have the chance to present evidence and testimony.
If your spouse is having an affair with another person, you may have a claim for alienation of affections and/or criminal conversation. Criminal Conversation is a tort lawsuit against a third party who has committed adultery with someone’s spouse.
The person having the affair with your spouse does not have to know that your spouse is married to be found liable for criminal conversation. Alienation of Alienation is a tort lawsuit, involving a complaint brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage.
When a family law dispute clouds your future, you cannot afford anything less than strong and effective representation. At Johnson Law, we help people work to overcome family law problems.
At Johnson Law, all we handle are family law cases. Having an experienced family law attorney by your side to guide you through the complex legal system can significantly reduce the tension and confusion.
We will listen to your story and ask questions in order to learn about your ultimate goals. Only by understanding where you would like to end up can we develop a legal strategy to help you get there.