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Postseparation Support laws were enacted in North Carolina effective October 1, 1995 and applicable to actions filed on or after that date.
North Carolina no longer has temporary alimony, but has changed the terminology to “postseparation support” or “PSS.” The purpose of PSS is to prevent the more financially secure party from starving out the less financially secure party and possibly forcing that party into an unfair property settlement agreement. If one party is found to be financially dependent on the other spouse, that party is designated a “dependent spouse” and is entitled to an award of temporary support from the “supporting spouse.” This award may also include an order requiring the supporting spouse to pay a portion of the dependent spouse’s attorney fees. PSS is determined on the economic circumstances of the parties; however, in certain cases, adultery or other marital misconduct may be considered in determining the award or denial of PSS.
The court may award Post Separation Support based upon the following:
- Financial needs of the parties;
- Accustomed standard of living;
- Present employment income and other recurring earnings of each party from any source;
- Earning abilities of both spouses;
- Separate and marital debt service obligations;
- Necessary living expenses of both parties;
- Each party’s respective legal obligations to support any other person; and
- Pre-separation marital misconduct of both parties.
Marital Misconduct means any of the following acts that occur during the marriage and prior to or on the date of separation:
- Illicit sexual behavior, which includes acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts voluntarily engaged in with someone other than the other spouse;
- Causing an involuntary separation in consequence of a criminal act;
- Abandoning the other spouse;
- Maliciously turning the other spouse out of doors;
- Cruel and barbarous treatment endangering the life of the other spouse;
- Indignities rendering the condition of the other spouse intolerable and life burdensome;
- Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
- Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.
Alimony & Entitlement to Alimony
While postseparation support is temporary in nature and is designed to put the parties on equal footing, alimony is designed to be more long term or permanent in nature. Like PSS, the court, after considering all relevant factors, will determine the duration and amount of alimony.
Before a court will award one party or the other alimony, you must:
- Be the dependent spouse, which means you are actually and substantially dependent upon the other spouse for support or substantially in need of support from the other spouse; and
It must be equitable or fair to award the dependent spouse alimony. Equitable is determined according to the following relevant factors:
- Financial needs of the parties;
- Accustomed standard of living;
- Present employment income and other recurring earnings of each party from any source;
- Earning abilities of both spouses;
- Separate and marital debt service obligations
- Living expenses of both parties necessary for support of both; and
- Each party’s respective legal obligations to support any other person
Illicit sexual behavior and its impact on entitlement of Alimony
(a) If you are the dependent spouse and you engaged in uncondoned illicit sexual behavior during the marriage and prior to the date of separation, you will not receive alimony unless the supporting spouse also participated in an act of uncondoned illicit sexual behavior during the marriage and prior to the date of separation.
(b) If you are the supporting spouse, your spouse shall be entitled to alimony if you engaged in an uncondoned illicit sexual act during the marriage and prior to or on the date of separation (and the dependent spouse is not guilty of the same conduct).
If both spouses have engaged in an uncondoned illicit sexual act, then alimony may be denied or awarded in the discretion of the court after consideration of all the other circumstances.
The trial Judge decides the amount, duration and manner of payment of permanent alimony.
The relevant factors the court must consider in determining the manner, amount and duration of payment of permanent alimony are:
- The marital misconduct of either of the spouses, which may be determined by a jury (see marital misconduct under Postseparation Support; the factors are the same);
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental and emotional conditions of the spouses;
- The amount and source 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;
- 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 reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- 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;
- 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 homemaker;
- The relative needs of the spouses;
- The Federal and State tax ramifications of the alimony award; and
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
Alimony or Postseparation Support can be modified or terminated by the court upon a showing of a material and substantial change in circumstances since the entry of the order.
Alimony or Postseparation Support terminates upon the death of either party, upon the remarriage of recipient spouse, or upon cohabitation of the recipient spouse.
As defined in N.C.G.S. § 50-16.9 “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” When dealing with the issue of cohabitation, the old adage – if it looks like a duck, sounds like a duck, and acts like a duck, then it is probably a duck – applies. So, if you and your new partner look like you are married, and act like you are married, you probably are cohabiting in the eyes of the a Court.
Does "fault" matter in North Carolina?
1. Does "fault" matter in North Carolina? North Carolina is a "no fault" state for purposes of an absolute divorce. However, in determining postsepartion support, alimony and a Divorce from Bed and Board claims, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery. These fault grounds will be considered by the court in making a determination of a postseparation support, alimony or divorce from bed and board claim.
What is an absolute divorce in NC?
2. What is an absolute divorce? In North Carolina, an absolute divorce is a cause of action requesting the dissolution of a legal marriage. A claim for absolute divorce is separate from claims for child custody, child support, equitable distribution, post separation support and/or alimony. In North Carolina, a claim for absolute divorce simply asks for the termination of a legal marriage after having been separated for one (1) full year.
When can I file for an absolute divorce?
When can I file for an absolute divorce? In order to obtain an absolute divorce in North Carolina, you must meet the following criteria: (1) the parties must have a valid marriage; (2) either husband or wife is a citizen and resident of North Carolina for at least six (6) months prior to the complaint being filed; (3) husband and wife have lived separately for at least one (1) year immediately preceding the filing of the complaint with the intent of at least one of them to end their marriage; and (4) husband and wife have at no time during the separation resumed the marital relationship.
What is Divorce from Bed and Board?
What is Divorce from Bed and Board? Divorce from Bed and Board is a fault-based claim that authorizes a Court to order that the parties be allowed to physically separate from each other typically without any negative ramifications.
What is abandonment?
What is abandonment? Abandonment is when one spouse, without reason or the consent of the other spouse, terminates cohabitation with his spouse with the intent to remain separate. Abandonment can come in the form of constructive or actual abandonment. For example, one spouse may remove himself/herself mentally and physically from the marriage, yet still remain in the home. In another example, a spouse may decide to no longer sleep in the same bedroom or bed as her spouse, therefore, he/she is abandoning the marriage in that the parties are no longer participating in acts usually associated with marriage. In some cases, one spouse makes the marital home so unbearable that the other spouse has no choice but to leave. If an "innocent spouse" must leave the marital residence because it is so unbearable said spouse has been constructively abandoned by the "offending spouse." The spouse who is leaving cannot then be legitimately charged with abandoning the marriage just because they left.
What if I do not want to get divorced?
What if I do not want to get divorced and my spouse does? Any person will be able to obtain an absolute divorce once the statutory requirements of (1) the parties must have a valid marriage; (2) either husband or wife is a citizen and resident of North Carolina for at least six (6) months prior to the complaint being filed; (3) husband and wife have lived separately for at least one (1) year immediately preceding the filing of the complaint with the intent of at least one of them to end their marriage; and (4) husband and wife have at no time during the separation resumed the marital relationship, have been met. Once a complaint for absolute divorce is filed, the defendant will have thirty (30) days to respond with an answer. If the defendant fails to respond, the plaintiff can proceed with asking the court to grant an absolute divorce assuming the statutory requirements have been met. The only defense to an absolute divorce is to demonstrate that the party requesting the divorce has not met all of the statutory requirements. The most common argument against a request for an absolute divorce is that the separation has not been of a sufficient length when the action was filed. In North Carolina, that length is one (1) year.
What constitutes being a resident of NC?
What does being a resident in North Carolina mean for purposes of getting divorced? A person is considered a citizen and resident of North Carolina when he or she is domiciled in this state for at least six (6) months. Domicile is defined as residence and the intention of the person to make a permanent home in this state. A person must be a citizen and resident of North Carolina for a divorce action to take place in this state.
What if we no longer live together?
My wife and I no longer live in the same residence. Are we "legally separated"? Legally separated is typically the term associated with separating after the Court has ordered a divorce from bed and board. Once you are no longer residing together, you are physically separated for the purpose of starting the clock on the one-year separation requirement for purpose of filing for absolute divorce, but you and your spouse must be in separate residences and no longer residing under the same roof.
What if we tried getting back together.
My husband and I tried to get back together for awhile. Does that make the one year separation period start over for the purposes of getting a divorce? The divorce statute specifically states that, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband-and-wife relationship, as shown by the totality of the circumstances. In applying this standard, our courts have looked at the actions of the couple in holding themselves out as man and wife as well as the intent of the parties. In the end, if a married person wants to satisfy this requirement of the law in order to obtain a divorce, he should dwell separate and apart from his spouse for the separation period and avoid any conduct which is indicative of marriage.
Is there common law marriage?
Is there common law marriage in North Carolina? No. Common law marriage is not recognized in North Carolina.
What if we lived separate for 1 year?
What if we lived separate for one (1) year? If my husband and I lived in separate bedrooms for one year prior to making a claim for a divorce, would that constitute "one year’s separation" for purposes of filing for absolute divorce? No. Parties cannot reside in the same residence during the separation period. North Carolinas' statute specifically states that, “[i]solated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. The Courts of our state have will look at the actions of the parties in holding themselves out as husband and wife as well as the intent of the parties. Ultimately a person should live separate and apart (meaning in separate residences) from his/her spouse for the required year so as to avoid any confusion.
What if I moved here 4 months ago?
What if I moved here four (4) months ago? Can I get a divorce if I just moved here four months ago? Probably not. Either you or your spouse has to be a citizen and resident of North Carolina for at least six (6) months before the lawsuit for divorce can be filed.
How long does the divorce process take?
How long does the divorce process take once the complaint is filed? Each county in North Carolina has its own local rules and procedures when processing a complaint for absolute divorce. If a Plaintiff files a complaint for absolute divorce, a defendant is entitled to thirty (30) days to respond to the lawsuit. A defendant is entitled to ask the Court for additional time in which to respond and in most cases a Court will allow a Defendant an additional thirty (30) days to respond if requested by the Defendant. If a Defendant fails to respond to the complaint within thirty (30) or sixty (60) days if applicable, the Plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike other counties, no court appearance will be required by either party for a Court to enter a judgment of absolute divorce. Therefore, once a defendant has been served in Mecklenburg County, a judgment of divorce could technically be entered approximately forty-one (41) days or approximately seventy-one (71) days after the Defendant has been served. In reality, you should allow a few additional days and maybe even up to a week to allow the Court to process the divorce.
How can I get my marriage annulled?
How can I get my marriage annulled in North Carolina? You may request the court to annul your marriage if you meet the statutory requirements. The following marriages are subject to annulment: 1) Between any two persons nearer of kin than first cousins; or 2) Between any two persons who are double first cousins; or 3) Between a male person under sixteen (16) years of age and any female; or 4) Between a female person under sixteen (16) years of age and any male; or 5) Between persons either of whom has a husband or wife living at the time of such marriage; or 6) Between persons either of whom is at the time physically impotent; or 7) Between persons either of whom is at the time incapable of contracting from want of will or understanding; or 8) A marriage entered into under the representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within forty-five (45) days of the marriage and which continues uninterrupted for one (1) year, shall be voidable if no child is born to the parties within ten (10) lunar months of the date of separation.
Do I have to be separated and wait one (1) year?
Do I have to be separated and wait one (1) year after separation before I can file for child custody or child support? No. Once you are physically separated from each other, you can file claims for child custody, child support, postseparation support, alimony and equitable distribution anytime thereafter. In some case, you can file some of these claims before you separate.
N.C.G.S.§ 50-16.7 (a)
(a) Alimony or postseparation support shall be paid by lump sum payment, periodic payments, income withholding, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of lump-sum payments of alimony or postseparation support or in payment of arrearages of alimony or postseparation support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which either alimony or postseparation support is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.
N.C.G.S.§ 50-16.7. (b)
(b) The court may require the supporting spouse to secure the payment of alimony or postseparation support so ordered by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due.
N.C.G.S.§ 50-16.7. (c)
(c) If the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or postseparation support as provided in subsection (a) or for the securing thereof, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
N.C.G.S.§ 50-16.7. (d)
(d) The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases.
N.C.G.S.§ 50-16.7. (e)
(e) The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 and Article 9 of Chapter 110 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases, and for such purposes the dependent spouse shall be deemed a creditor of the supporting spouse.
N.C.G.S.§ 50-16.7. (f)
(f) The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for alimony or postseparation support as in other cases.
N.C.G.S.§ 50-16.7. (g)
(g) Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in actions for alimony or postseparation support as in other cases.
N.C.G.S.§ 50-16.7. (h)
(h) A dependent spouse for whose benefit an order for the payment of alimony or postseparation support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to voidable transactions.
N.C.G.S.§ 50-16.7. (i)
(i) A judgment for alimony or postseparation support obtained in an action therefor shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past-due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.
N.C.G.S.§ 50-16.7. (j)
(j) Any order for the payment of alimony or postseparation support is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.
N.C.G.S.§ 50-16.7. (k)
(k) The remedies provided by Chapter 1 of the General Statutes Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for alimony and postseparation support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.
N.C.G.S.§ 50-16.7. (l)
(l) The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.
N.C.G.S.§ 50-16.7. (l1)
(l1) The dependent spouse may apply to the court for an order of income withholding for current or delinquent payments of alimony or postseparation support or for any portion of the payments. If the court orders income withholding, a notice of obligation to withhold shall be served on the payor as required by G.S. 1A-1, Rule 4, Rules of Civil Procedure. Copies of the notice shall be filed with the clerk of court and served upon the supporting spouse by first-class mail. (1967, c. 1152, s. 2; 1969, c. 541, s. 5; c. 895, s. 18; 1977, c. 711, s. 26; 1985, c. 482, s. 1; c. 689, s. 18; 1995 c. 319, s. 5; 1998-176, ss. 2, 3; 1999-456, s. 14; 2015-23, s. 3.)