Alimony in North Carolina: Postseparation Support, the Adultery Rules, 16 Factors and When It Ends

North Carolina has two kinds of spousal support. Postseparation support is temporary, while the case is pending. Alimony is the longer-term award. Both go to a dependent spouse from a supporting spouse, and "There are no guidelines or formulas in North Carolina law to determine how much alimony a dependent spouse should receive." The law is in G.S. 50-16.1A to 50-16.9.

File before the divorce

Alimony must be claimed while the marriage still exists. A divorce doesn't affect an alimony or postseparation support claim "pending at the time the judgment for divorce is granted" (G.S. 50-11(c)), but a spouse who never filed has no claim to protect. Postseparation support also ends with "The entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment of absolute divorce." File the alimony claim, or settle it in a separation agreement, before the divorce is granted.

Postseparation support

Under G.S. 50-16.2A, a dependent spouse gets temporary support when "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." The request is made by verified pleading, verified motion or affidavit. The court looks at the standard of living, income, earning ability, debts and reasonable expenses. Misconduct counts here too: "the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support."

Alimony and adultery

In North Carolina, adultery before separation can decide alimony outright. Under G.S. 50-16.3A(a), for "illicit sexual behavior" during the marriage and before or on the date of separation:

"Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court." Either spouse may demand a jury trial on marital misconduct.

Marital misconduct is broader than adultery. The statute defines nine kinds, from abandonment and cruel treatment to reckless spending, wasting or hiding assets, and excessive drinking or drug use. Those count as factor 1 below.

The 16 factors

Beyond the adultery rule, the court sets the amount, length and form of alimony by weighing:

1. marital misconduct of either spouse;
2. relative earnings and earning capacities;
3. ages and physical, mental and emotional conditions;
4. the amount and sources of earned and unearned income, including benefits;
5. the length of the marriage;
6. contributions to the other's education, training or earning power;
7. the effect of serving as custodian of a minor child;
8. the standard of living during the marriage;
9. relative education and the time needed to get training to become self-supporting;
10. relative assets, liabilities and debt service, including support duties;
11. property brought to the marriage;
12. contributions as a homemaker;
13. relative needs;
14. federal, state and local tax consequences;
15. any other economic factor the court finds just and proper; and
16. income already counted when valuing an asset in equitable distribution.

"The duration of the award may be for a specified or for an indefinite term," periodic or lump sum. The court must give reasons and make findings on each factor on which evidence is offered.

Counsel fees

When a dependent spouse would be entitled to alimony or postseparation support, "the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony" (G.S. 50-16.4).

Changing and ending support

Under G.S. 50-16.9, a court-ordered award "may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested."

• Remarriage or cohabitation. If the dependent spouse "remarries or engages in cohabitation, the postseparation support or alimony shall terminate." Cohabitation means two adults "dwelling together continuously and habitually" in a private relationship, with a voluntary mutual assumption of marital rights and duties; sex isn't required.
• Death. "Postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse."
• Retirement isn't listed as an end point; a drop in income is argued as a change in circumstances.

Alimony set only in a separation agreement that was never made a court order is generally treated as a contract, so these modification rules don't automatically apply to it.

Taxes

Federal. For divorce or separation agreements signed after 2018, "The payer spouse can't deduct alimony or separate maintenance payments," and payments the recipient receives "are not included in their gross income." Older agreements keep the old treatment unless modified to adopt the new rule.

North Carolina. North Carolina income tax starts from federal adjusted gross income, and its returns have no separate alimony adjustment, so the federal result carries over. The court system notes that since January 1, 2019, "alimony is no longer included in the calculation of a dependent spouse’s gross income."

Where these sections live

• G.S. 50-16.1A — Definitions, including marital misconduct
• G.S. 50-16.2A — Postseparation support
• G.S. 50-16.3A — Alimony
• G.S. 50-16.9 — Modification and termination
• IRS Topic 452: Alimony and separate maintenance