Alimony and support in Charlotte, North Carolina

In North Carolina, Post Separation Support and Alimony is awarded to a spouse who can prove they were dependant upon the support of the other and it is necessary to continue the support to continue the standard of living that the dependant spouse was accustomed to during the course of the marriage. However, the supporting spouse must still possess the ability to pay and a judge cannot order an amount to be paid that is above and beyond the supporting spouses net income after expenses.

Post Separation Support, by its very name, is support for a dependant spouse during a time of Separation. Alimony, is in the form of payments to assist a dependant spouse after separation and Divorce.

In Charlotte-Mecklenburg and surrounding counties, Post Separation Support is awarded after a brief one to two hour hearing, and the issue of Alimony is heard much later, only after mandatory Alternative Dispute Resolution in the form of Mediation or a Judicial Settlement Conference.

To determine eligibility for Postseparation support and Alimony in North Carolina, a spouse must show that:

• Am I A Dependant Or Supporting Spouse?
• How Does The Court Decide?
• Does Marital Misconduct Or Fault Play A Factor?
• How Do I Modify Alimony?
• What Are The Factors A Court May Consider In Determining Alimony?
• What Is The Difference Between Post Separation Support & Alimony In North Carolina?
• When Does Alimony End?
• He or she is the “dependant spouse” upon that of other
• The other spouse is the “supporting spouse,” which has supported the dependant spouse during the coarse of the marriage
• The income and the accustomed standard of living for the dependant spouse, whether or not the spouse who is dependant lacks resources adequate to meet his or her reasonable needs; and
• Whether or not the supporting spouse has the ability to pay
• Am I A Dependant Or Supporting Spouse?
• Does Marital Misconduct Or Fault Play A Factor?
• How Do I Modify Alimony?

The four statutory definitions that decide a North Carolina spousal support case

In North Carolina, every claim for postseparation support or alimony rests on the definitions set out in G.S. 50-16.1A. A “dependent spouse” under G.S. 50-16.1A(2) is “a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse”. A “supporting spouse” under G.S. 50-16.1A(5) is the mirror image: a spouse “upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support”. Each definition carries two alternative limbs, and each is measured against the other spouse rather than against any absolute figure. Both findings are required. A court cannot award support to a spouse who does not meet the definition, however unequal the two incomes appear.

The same section defines the two forms of support. Alimony, under G.S. 50-16.1A(1), is “an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term”. Postseparation support, under G.S. 50-16.1A(4), is spousal support to be paid “until the earlier of any of the following”: the date specified in the order of postseparation support; the entry of an order awarding or denying alimony; the dismissal of the alimony claim; the entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of that judgment; or termination of postseparation support as provided in G.S. 50-16.9(b). The General Statutes spell it as one word – postseparation – and treat it as a temporary bridge rather than a different species of support.

Neither status definition mentions fault, gender or the length of the marriage. Those matters enter later, and through separate provisions: marital misconduct through G.S. 50-16.2A(d) and G.S. 50-16.3A(a) and (b)(1), and the duration of the marriage through G.S. 50-16.3A(b)(5). The threshold question is narrower than most people expect. Measured against the standard of living the marriage established, is one spouse actually substantially dependent on the other, or substantially in need of maintenance and support from the other?

Postseparation support and alimony are decided under separate statutes and separate tests

In North Carolina, postseparation support is governed by G.S. 50-16.2A and alimony by G.S. 50-16.3A. G.S. 50-16.2A(c) provides that “except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, 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”. Three things are packed into that sentence. The entitlement is conditional on the marital misconduct provision in subsection (d) not being engaged. The finding has to be built on the subsection (b) factors rather than on an impression of the parties. And the finding itself is financial: inadequate resources on one side, ability to pay on the other.

G.S. 50-16.2A(b) sets the material the court works from. In ordering postseparation support the court “shall base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons”.

Alimony asks a wider question. Under G.S. 50-16.3A(a), 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”. The word “shall” binds the court once those findings are made, but the third finding – that an award is equitable – is itself reached through the same factors that govern the size of the award, so the sixteen factors are not confined to quantification. Amount, duration and manner of payment are then fixed under G.S. 50-16.3A(b), which directs the court to “exercise its discretion” and provides that “the duration of the award may be for a specified or for an indefinite term”. There is no alimony formula and no guideline table in North Carolina.

An alimony claim must be pending before the judgment of absolute divorce is entered

In North Carolina, a judgment of absolute divorce extinguishes a spousal support claim that has not already been asserted. G.S. 50-11(a) provides that after a judgment of divorce from the bonds of matrimony “all rights arising out of the marriage shall cease and determine except as hereinafter set out”. G.S. 50-11(c) then supplies the exception. A judgment of absolute divorce does not impair or destroy the right of a spouse to receive alimony or postseparation support provided for under a judgment or decree rendered before or at the time of the divorce, and a divorce obtained under G.S. 50-5.1 or G.S. 50-6 does not affect the rights of either spouse “with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted”.

G.S. 50-16.1A(4) makes the same point from the other direction. Postseparation support ends on entry of a judgment of absolute divorce where no alimony claim is pending at that time, and the definition closes with the warning that “if postseparation support is ordered at the time of the entry of a judgment of absolute divorce, a claim for alimony must be pending at the time of the entry of the judgment of divorce”.

This is the most consequential timing rule in the area. Divorce complaints filed in Mecklenburg County District Court are often uncontested and reach judgment quickly, while the financial claims remain unresolved. Where alimony was never pleaded before that judgment was entered, it cannot be revived afterwards.

Where spousal support claims are heard in Charlotte and Mecklenburg County

In North Carolina, claims for postseparation support and alimony are heard in District Court. For Charlotte and the rest of Mecklenburg County, that is the 26th Judicial District, where domestic claims are managed through the district’s Family Court division under local rules of domestic court that operate alongside the General Statutes.

Those local rules require both parties in postseparation support cases, alimony cases and alimony modification cases to file and exchange an Affidavit of Financial Standing, and to exchange income evidence, bank and brokerage statements, a schedule of outstanding debts, federal tax returns and personal financial statements furnished to third parties, without waiting for a discovery request.

Postseparation support is heard on a calendared hearing rather than a full trial. G.S. 50-16.8 permits the court to “base its award on a verified pleading, affidavit, or other competent evidence”, and requires the judge to “set forth the reasons for its award or denial of postseparation support, and if making an award, the reasons for its amount, duration, and manner of payment”. G.S. 50-16.2A(a) requires the moving party’s “verified pleading, verified motion, or affidavit” to “set forth the factual basis for the relief requested”. Alimony is tried later and on a fuller record.

Settlement procedures sit between the two. G.S. 7A-38.4A applies to district court actions involving equitable distribution, alimony or support, and provides that a system of settlement events should be established to facilitate settlement. A chief district court judge may order a mediated settlement conference, and with the consent of the parties may order another settlement procedure authorized by rules of the Supreme Court. In the 26th Judicial District, alimony is among the family financial claims referred to a mediated settlement conference or to a judicial settlement conference conducted by a judge other than the one assigned to try the case.

Marital misconduct is one factor, but illicit sexual behavior carries a mandatory consequence

In North Carolina, G.S. 50-16.1A(3) defines marital misconduct as any of nine listed acts “that occur during the marriage and prior to or on the date of separation”. Misconduct is the first of the sixteen alimony factors under G.S. 50-16.3A(b)(1). At the postseparation support stage it works differently. G.S. 50-16.2A(d) provides that 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”, and that when the judge considers those acts by the dependent spouse, the judge “shall also consider any marital misconduct by the supporting spouse”. The second duty is conditional on the first: it is triggered by the court’s consideration of the dependent spouse’s conduct, not by the bare existence of an allegation. Where subsection (d) is engaged, the entitlement in subsection (c) no longer operates of its own force, and the judge decides whether to award postseparation support at all.

Illicit sexual behavior sits outside that weighing at the alimony stage. Under G.S. 50-16.3A(a), if the court finds the dependent spouse participated in such an act during the marriage and prior to or on the date of separation, “the court shall not award alimony”. If it finds the supporting spouse participated in such an act, “the court shall order that alimony be paid to a dependent spouse”. If it finds that each of them did, alimony “shall be denied or awarded in the discretion of the court after consideration of all of the circumstances”. And any such act “that has been condoned by the other party shall not be considered by the court”. The mandatory consequence is therefore reached only after the court has worked through both qualifications.

G.S. 50-16.3A(d) allows either spouse to request a jury trial on the issue of marital misconduct within the alimony claim, and provides that where a jury trial is requested the jury decides whether either spouse or both have established marital misconduct. It is one of the very few jury questions in North Carolina family law, and there is no equivalent in a postseparation support hearing.

How a spousal support award is paid, secured and enforced

In North Carolina, G.S. 50-16.7(a) provides that 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”, and the court may also order a security interest in or possession of real property. Under G.S. 50-16.7(b) the court may require the supporting spouse to secure payment “by means of a bond, mortgage, or deed of trust”, or by executing an assignment of wages, salary or other income.

Enforcement runs through the court that entered the order. G.S. 50-16.7(j) provides that an 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”. G.S. 50-16.7(l1) allows the dependent spouse to apply for an order of income withholding for current or delinquent payments, and G.S. 50-16.7(k) makes the execution, execution sale and supplemental proceedings remedies available for collection. Under G.S. 50-16.7(i) a judgment for alimony is not a lien on real property unless the judgment expressly so provides, specifies the amount due as a sum certain, and adequately describes the real property affected.

Counsel fees are a separate claim, and the statute confines the application to one side. Under G.S. 50-16.4, at any time that a dependent spouse would be entitled to alimony under G.S. 50-16.3A, or postseparation support under G.S. 50-16.2A, the court may, upon application of that spouse, enter an order for reasonable counsel fees “to be paid and secured by the supporting spouse in the same manner as alimony”. The section gives no reciprocal application to a supporting spouse who succeeds in defeating the claim.

Equitable distribution and alimony are decided separately but shape one another

In North Carolina, property division and spousal support are distinct claims decided under distinct statutes. G.S. 50-20(f) directs that “the court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties”, and provides that after the determination of an equitable distribution the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated under G.S. 50-16.9 or G.S. 50-13.7.

G.S. 50-16.3A(a) works in the same direction. The alimony claim “may be heard on the merits prior to the entry of a judgment for equitable distribution”, and if alimony is awarded, “the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim”. That is a power to review on request, not an automatic reopening.

The two claims still meet in the evidence. Factor (10) sends the court to the relative assets, liabilities and debt service requirements of the spouses, factor (11) to the property brought to the marriage by either spouse, and factor (16) to “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”. A distribution that moves an income-producing asset from one spouse to the other changes both the need and the ability to pay.

Separation agreements, consent orders and premarital agreements

In North Carolina, spouses may settle support by contract rather than by trial. G.S. 52-10.1 authorizes a separation agreement provided it is in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b), who may not be a party to the contract. Under G.S. 50-16.6(b), alimony, postseparation support and counsel fees “may be barred by an express provision of a valid separation agreement, premarital agreement, or marital contract made pursuant to G.S. 52-10(a1) so long as the agreement is performed”. Those closing words matter: the bar is tied to continued performance of the agreement.

Premarital agreements are governed by Chapter 52B. G.S. 52B-4(a)(4) permits parties to contract about “the modification or elimination of spousal support”. G.S. 52B-7(b) allows a court, notwithstanding the terms of the agreement, to require the other party to provide support “to the extent necessary to avoid that eligibility” where a provision modifying or eliminating spousal support causes a party to be eligible for support under a program of public assistance at the time of separation or marital dissolution. G.S. 52B-7(c) provides that an issue of unconscionability of a premarital agreement “shall be decided by the court as a matter of law”.

Whether a support term can later be changed turns on how it was reduced to writing. In Walters v. Walters the Supreme Court of North Carolina held that where parties bring a separation agreement before the court for approval, it is no longer treated as a contract between them, and agreements approved by the court as judgments are treated as court-ordered judgments. An incorporated support term is enforceable by contempt and modifiable under G.S. 50-16.9(a); an unincorporated agreement remains a contract, enforced and altered by contract principles.

When support changes and when it ends

In North Carolina, G.S. 50-16.9 does two different things, and running them together is a common and expensive mistake. Subsection (a) governs change. An order for alimony or postseparation support, “whether contested or entered by consent, 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”. Modification is not self-executing. Until the court enters a modifying order, the sum stated in the existing order keeps falling due, and a paying spouse who unilaterally pays less simply accumulates arrears.

Subsection (b) governs ending, and it operates differently. Where a dependent spouse who is receiving postseparation support or alimony under a judgment or order of a court of this State “remarries or engages in cohabitation, the postseparation support or alimony shall terminate”, and support “shall terminate upon the death of either the supporting or the dependent spouse”. Those events end the obligation by force of the statute rather than by leave of the court. What still calls for a motion in the cause is confirmation – an order recording that the terminating event occurred, ending any income withholding and releasing any security – because the paying spouse who stops paying carries the burden of proving the event if the order is later enforced.

Cohabitation is defined within G.S. 50-16.9(b) as two adults “dwelling together continuously and habitually” in a private relationship that need not be solemnized by marriage, 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”. The definition asks for a way of living, not for a single fact.

Where the parties remain married to each other, G.S. 50-16.9(a) directs that a motion to modify or terminate based on a resumption of marital relations be determined under G.S. 52-10.2. That section defines resumption of marital relations as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and provides that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations”.

Where the order was issued outside North Carolina, jurisdiction is the first question. G.S. 52C-2-211(b) provides that a tribunal of this State “may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country”.

Common questions

Questions people ask

• Am I A Dependant Or Supporting Spouse?In North Carolina, Post Separation Support and/or Alimony is awarded after a hearing occurs in district court. The…
• What Is The Difference Between Post Separation Support & Alimony In North Carolina?In North Carolina, Post Separation Support is spousal support payable to a dependant spouse until a date specified by…
• Does Marital Misconduct Or Fault Play A Factor?Yes, marital misconduct may play a role in whether or not a trial judge may award Post Separation Support or Alimony…
• How Do I Modify Alimony?Whether or not Alimony is Modifiable in North Carolina generally hinges on how the payment of Alimony was effectuated.…
• How Does The Court Decide?In North Carolina, Post Separation Support and/or Alimony is awarded after a hearing occurs in district court. The…
• What Are The Factors A Court May Consider In Determining Alimony?In order for a dependant spouse to be granted Alimony by a Court in North Carolina, the court must find that an award…
• When Does Alimony End?Even though we handle a large amount of Alimony and Post Separation Support cases in Mecklenburg and the surrounding…

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.