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 a court order, or a future court order awarding or denying Alimony. Post Separation Support is provided to a dependant spouse for the purpose of allowing him or her to maintain the standard of living that he or she has grown accustomed to during the course of marriage and until a trial for Alimony occurs in North Carolina.

An individual who is denied Post Separation Support is still entitled to a hearing on Alimony, and may provide additional evidence for the trial court to consider. After a hearing for Post Separation Support is heard, or prior to trial for Alimony, both parties will be required to attend a form of Alternative Dispute Resolution, which will take place in the form of Mediation or a Judicial Settlement Conference. If the parties are unable to settle during Mediation or a Judicial Settlement Conference, a trial for Alimony will then be scheduled.

During trial for Alimony, a judge will hear evidence presented by both parties pertaining to whether or not a party should be entitled to Alimony. If the party seeking Alimony successfully pleads his or her case, they will be entitled to either a lump sum payment or a number of payments, which is usually awarded in monthly increments.

The statute fixes five end points for postseparation support

In North Carolina, G.S. 50-16.1A(4) defines postseparation support as spousal support to be paid “until the earlier of any of the following”. Those five events are 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; and termination of postseparation support as provided in G.S. 50-16.9(b).

The same subdivision adds an important proviso. Postseparation support “may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce”, but “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”. Alimony, by contrast, is defined in G.S. 50-16.1A(1) as support “for a specified or for an indefinite term”, and it can run long after the marriage has ended.

Two different statutes apply two different tests

In North Carolina, postseparation support is decided under G.S. 50-16.2A and alimony under G.S. 50-16.3A. The postseparation support test is the narrower of the two, but it is not purely arithmetical. 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”. The entitlement is displaced where the marital misconduct provision in subsection (d) is engaged, and the financial findings must be built on the subsection (b) matters.

Alimony adds an equity requirement and a much longer list. Under G.S. 50-16.3A(a), the court awards alimony on findings of a dependent spouse, of 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”. G.S. 50-16.3A(b) then lists sixteen factors, which govern the equity judgment as well as amount, duration and manner of payment. They include the duration of the marriage, the contribution of a spouse as homemaker, the relative education of the spouses, the contribution by one spouse to the education, training or increased earning power of the other, and the federal, State and local tax ramifications of the award – none of which appears in the postseparation support statute.

The two hearings differ in evidence, length and formality

In North Carolina, a postseparation support hearing can be decided on paper. G.S. 50-16.8 provides that when an application is made for postseparation support “the court may base its award on a verified pleading, affidavit, or other competent evidence”, and G.S. 50-16.2A(a) requires the moving party’s verified pleading, verified motion or affidavit to set out the factual basis for the relief requested.

In the 26th Judicial District, covering Charlotte and Mecklenburg County, postseparation support is calendared within the domestic term and each side is allotted a limited time to present its case, with the judge free to decide on affidavits where the statute permits. The local rules of domestic court set deadlines for serving affidavits from accountants or private investigators, and for affidavits of the parties themselves, before the hearing; affidavits served late are not considered.

An alimony trial is a different proceeding. Live testimony, cross-examination and exhibits are the norm, the sixteen factors are litigated individually, and G.S. 50-16.3A(c) requires the judge to set forth the reasons for the award or denial and, except on motions for which the Rules of Civil Procedure do not require special findings of fact, to make a specific finding of fact on each factor in subsection (b) on which evidence was offered.

Marital misconduct is weighed differently at each stage

In North Carolina, misconduct must be considered at the postseparation support stage but produces no fixed result. 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. Its effect on entitlement is indirect: because G.S. 50-16.2A(c) applies “except when subsection (d) of this section applies”, a dependent spouse whose conduct is in issue no longer qualifies for an award on the financial findings alone, and the award becomes a matter for the judge.

At the alimony stage the treatment hardens for one category. Under G.S. 50-16.3A(a), a finding of illicit sexual behavior by the dependent spouse during the marriage and prior to or on the date of separation means “the court shall not award alimony”; the same finding against the supporting spouse means “the court shall order that alimony be paid to a dependent spouse”; and where the court finds that each of them participated in such an act, alimony is denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act condoned by the other party is excluded from consideration altogether, so the mandatory rules bite only after both qualifications have been worked through.

The forum differs too. G.S. 50-16.3A(d) permits either spouse to request a jury trial on the issue of marital misconduct within the alimony claim, and provides that the jury decides whether either spouse or both have established marital misconduct. There is no jury in a postseparation support hearing.

A denial of postseparation support does not decide the alimony claim

In North Carolina, the two claims are decided separately and on different records. A spouse denied postseparation support may still pursue alimony, and the alimony hearing proceeds on the fuller evidence that discovery and a trial setting allow. The reverse is also true: an award of postseparation support does not commit the court to award alimony, and the postseparation support figure is not a starting point that the alimony judge must adopt.

This follows from the structure of the statutes. G.S. 50-16.2A(c) asks about the adequacy of the dependent spouse’s resources and the supporting spouse’s ability to pay, on consideration of the subsection (b) matters, and gives way where subsection (d) applies. G.S. 50-16.3A(a) asks those questions and then asks whether an award is equitable after considering all relevant factors, including the sixteen in G.S. 50-16.3A(b), and it attaches mandatory consequences to illicit sexual behavior that have no counterpart in the postseparation support statute. Different questions can produce different answers on the same facts.

Settlement procedures come between the two hearings

In North Carolina, 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. Parties may select a mediator by agreement; where they do not, a district court judge appoints one.

Attendance is not optional. The statute requires the parties, their attorneys and other persons or entities with authority to settle to attend unless the rules excuse them, allows a party who has been the victim of domestic violence to be excused from physically attending or participating, and provides that a participant who without good cause fails to attend is subject to the contempt powers of the court and to monetary sanctions. No participant is required to make a settlement offer or demand that the party deems contrary to their best interests, and evidence of statements made and conduct occurring in the conference is not subject to discovery and is inadmissible in any proceeding, subject to the exceptions the section sets out.

In Mecklenburg County, alimony claims are among the family financial matters referred to alternative dispute resolution under the 26th Judicial District’s local rules, in the form of a mediated settlement conference or a judicial settlement conference before a judge other than the one assigned to try the case.

What each order can require, and how each is enforced

In North Carolina, both forms of support are payable in the same ways. 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 or any interest therein, or a security interest in or possession of real property, as the court may order”, and G.S. 50-16.7(b) allows the court to require the supporting spouse to secure payment by bond, mortgage or deed of trust, or by executing an assignment of wages, salary or other income.

Enforcement is also common to both. G.S. 50-16.7(j) makes an order for the payment of alimony or postseparation support enforceable by proceedings for civil contempt and its disobedience punishable by proceedings for criminal contempt, and G.S. 50-16.7(l1) allows the dependent spouse to apply for an order of income withholding for current or delinquent payments. Counsel fees are narrower than either. 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, order reasonable counsel fees to be paid and secured by the supporting spouse in the same manner as alimony. The application belongs to the dependent spouse 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

• Am I A Dependant Or Supporting Spouse?
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