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 party seeking Post Separation Support and/or Alimony must prove that he or she is a Dependant Spouse, the other Spouse is a Supporting Spouse, and the Supporting Spouse has the ability to pay after the two have separated.

NC General Statutes define a Dependant Spouse as a spouse, husband or wife, who is actually substantially dependant upon the support of the other spouse for his or her maintenance or support or is substantially in need of maintenance and support from the other spouse. In Williams v. Williams, the North Carolina Supreme Court listed the initial principels that the trial court should follow in determining when a spouse is a dependant spouse and if Post Separation Support and/or Alimony should be paid by a Supporting Spouse.

The Supreme Court of NC stated that the income and expenses of the family as a unit must be evaluated, and if the evaluation of the family’s income and expenses reveal that one spouse is without the means to maintain his or her accustomed standard of living, then that spouse is actually substantially dependant, and deemed to be a dependant spouse.

If the comparison above does not show that the spouse is actually substantially dependant, the trial court must then determine if the spouse is substantially in need of maintenance or support by determining the following:

Once a Court reviews evidence under this analysis, it may then make a determination as to whether an individual is entitled to an award of Post Separation Support or Alimony. Sheehan at (704) 222-4752 today.

The two statutory definitions, word for word

In North Carolina, G.S. 50-16.1A(2) defines a dependent spouse as “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”. G.S. 50-16.1A(5) defines a supporting spouse as “a spouse, whether husband or wife, 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”.

The definitions are reciprocal, and the court must make both findings before it can award anything. Neither definition contains an ability-to-pay element. Ability to pay is a separate statutory requirement that appears elsewhere: expressly in G.S. 50-16.2A(c) for postseparation support, and among the factors in G.S. 50-16.3A(b) – notably the relative earnings and earning capacities of the spouses at (2) and the relative assets, liabilities and debt service requirements at (10) – for alimony. Confusing the status finding with the capacity to pay is a frequent source of error in drafting.

Each definition contains two alternative routes. A spouse may be “actually substantially dependent”, meaning currently relying on the other spouse for maintenance and support, or “substantially in need of maintenance and support”, which measures reasonable needs against the standard of living the marriage established. Satisfying either limb satisfies the definition.

The comparison a North Carolina court actually performs

In North Carolina, the inquiry is comparative rather than absolute. The court measures the reasonable needs of the spouse seeking support against that spouse’s own income, earning ability and estate, and then measures both against the accustomed standard of living established during the marriage. A spouse with enough income to live modestly may still be a dependent spouse where that income cannot sustain the standard of living the marriage produced.

The second half of the inquiry is the other spouse’s surplus. G.S. 50-16.2A(c) puts the point expressly for postseparation support: “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”. Two qualifications travel with that entitlement. It is displaced where the marital misconduct provision in subsection (d) is engaged, and the finding must rest on the subsection (b) factors. A court cannot order more than the supporting spouse’s income and estate can produce once that spouse’s own reasonable expenses are met.

Actual income governs unless the court finds bad faith

In North Carolina, a spousal support award is based on a party’s actual present income. Appellate decisions have held consistently that a trial court may substitute earning capacity for actual income only where it makes findings that the party deliberately depressed income in bad faith or in disregard of the support obligation. Voluntary unemployment or a drop in earnings, standing alone, is not enough to support imputation.

The rule operates in both directions. A spouse seeking support who has left work is not automatically credited with no income at all, and a supporting spouse whose earnings have genuinely fallen is not automatically held to the earlier figure. What decides the question is the finding the judge makes about why the income changed, which is why the reason for a career change or a reduction in hours is usually litigated in detail.

The evidence that establishes dependency in Mecklenburg County

In North Carolina, dependency is proved with documents rather than description. In the 26th Judicial District, which covers Charlotte and the rest of Mecklenburg County, the local rules of domestic court require both parties in postseparation support and alimony cases to file and exchange an Affidavit of Financial Standing, and to exchange a further body of financial material without waiting for a discovery request.

The affidavit is where the accustomed standard of living is either established or lost, because it is the document the judge reads first and returns to when making findings.

• A monthly expense schedule tied to the household as it operated before separation
• Evidence of gross income from all sources, including salary, commissions, bonuses, severance, distributions, pensions, trust income and benefits
• Bank, credit union and brokerage statements for the accounts on which each party is a signatory
• A schedule of outstanding debts with balances and payment terms
• Federal tax returns with schedules and attachments, and personal financial statements furnished to third parties

A finding of dependency establishes eligibility, not an amount

In North Carolina, being found a dependent spouse opens the door; it does not fix the sum. For postseparation support, G.S. 50-16.2A(b) directs the court to base its award on the financial needs of the parties, considering the accustomed standard of living, present employment income and other recurring earnings from any source, income-earning abilities, separate and marital debt service obligations, expenses reasonably necessary to support each of the parties, and each party’s legal obligations to support any other persons.

For alimony, G.S. 50-16.3A(a) adds an equity requirement on top of the two status findings: the court awards alimony on a finding that one spouse is dependent, that the other is supporting, “and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section”. The sixteen factors in G.S. 50-16.3A(b) therefore feed both the equity decision and the amount, duration and manner of payment, and G.S. 50-16.3A(c) requires a specific finding of fact on each factor on which evidence was offered, except on motions for which the Rules of Civil Procedure do not require special findings.

Dependency can be revisited after it has been decided once

In North Carolina, the status findings are not necessarily permanent. G.S. 50-16.3A(a) provides that where the alimony claim is heard before an equitable distribution judgment is entered and 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 rather than an automatic redetermination, and a distribution that transfers an income-producing asset, or allocates a large debt, is what usually prompts it.

Separately, G.S. 50-16.9(a) allows an order for alimony or postseparation support, contested or entered by consent, to be “modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested”. Dependency established at one hearing does not settle the obligation for good.

Marital misconduct sits alongside the dependency question

In North Carolina, misconduct does not decide whether a spouse is dependent, but it can decide whether that dependent spouse receives anything. Under G.S. 50-16.3A(a), where the court finds that the dependent spouse participated in an act of illicit sexual behavior as defined in G.S. 50-16.1A(3)a. during the marriage and prior to or on the date of separation, the court shall not award alimony – unless the supporting spouse also participated in such an act, in which case alimony is denied or awarded in the discretion of the court, or unless the act was condoned by the other party, in which case it is not considered at all.

In a postseparation support hearing, G.S. 50-16.2A(d) requires the judge to consider marital misconduct by the dependent spouse occurring prior to or on the date of separation, both in deciding whether to award postseparation support and in deciding the amount, and, when the judge considers those acts, to consider any marital misconduct by the supporting spouse as well. There is no mandatory bar and no mandatory award at that stage. What subsection (d) does do is displace the entitlement in G.S. 50-16.2A(c), which applies “except when subsection (d) of this section applies”, so that a dependent spouse whose conduct is in issue is no longer entitled to an award on the financial findings alone.

Common questions

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

Related questions

• What Is The Difference Between Post Separation Support & Alimony In North Carolina?
• Does Marital Misconduct Or Fault Play A Factor?
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