How Do I Modify Alimony?

Whether or not Alimony is Modifiable in North Carolina generally hinges on how the payment of Alimony was effectuated. If two parties agreed to an amount payable as Alimony through a Separation Agreement, it is non-modifiable and can only be changed pursuant to the terms of the executed Separation Agreement. However, if Alimony is payable through a Court Order or Consent Order, it is modifiable and may be changed by filing a Motion to Modify before the trial court.

Motions to Modify must allege a change in circumstances that relate to the needs of a party receiving Alimony or the ability of the payor to pay the amount awarded to the spouse receiving Alimony. There are a number of factors that may cause an Alimony award to be modified and case law has acknowledged many different circumstances to warrant a modification.

The statutory power to modify, and its limits

In North Carolina, G.S. 50-16.9(a) provides that “an order of a court of this State 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”. Three elements are doing the work: the obligation must arise from an order of a court of this State, the application is made by motion in the cause rather than by a new lawsuit, and the movant must show changed circumstances. The subsection also provides that it does not apply to orders entered by consent before 1 October 1967.

Because the motion is made in the cause, it is filed in the existing file and heard by the court that entered the order. In Mecklenburg County that means the District Court file in the 26th Judicial District, managed through the Family Court division. The order remains in force in the meantime; filing a motion does not suspend the obligation.

What counts as a change of circumstances

In North Carolina, the change must be a financial one. A motion to modify alimony is measured against the circumstances as they stood when the order was entered, and the change relied on must relate either to the needs of the spouse receiving support or to the ability of the paying spouse to pay. A change that affects neither – a new relationship that produces no economic consequence, or dissatisfaction with the original bargain – does not open the order.

The court hears the motion on evidence, and the resulting order is subject to the same discipline as the original. Where the modification concerns alimony, the sixteen factors in G.S. 50-16.3A(b) supply the framework, and G.S. 50-16.3A(c) requires the court to set forth the reasons for its decision 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 on which evidence is offered.

In the 26th Judicial District, the local rules of domestic court require both parties to file and exchange an Affidavit of Financial Standing in alimony modification cases, and to serve an updated affidavit before the term in which the matter is set for trial.

Why incorporated and unincorporated agreements are treated differently

In North Carolina, G.S. 52-10.1 authorizes spouses to execute 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. Such an agreement is a contract. G.S. 50-16.9(a) applies to “an order of a court of this State”, and a private agreement that was never presented to a judge is not one.

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 that agreements approved by the court as judgments are treated as court-ordered judgments. An incorporated support provision is therefore enforceable by the contempt power and modifiable under G.S. 50-16.9(a) on a showing of changed circumstances.

Parties may split the two. Property settlement provisions can be left in contract while the support provision is submitted to the court, with the result that one part of the same document is modifiable as an order and the other is not. Which route was taken decides the remedy: a motion in the cause under G.S. 50-16.9(a) for an incorporated provision, or an action for breach of contract for one that was left in contract. Because the answer turns on what the parties intended and on what the order actually says, the language of both documents is read closely before any motion is drafted.

An unincorporated agreement is changed by contract remedies, not by motion

In North Carolina, a support obligation created by an unincorporated separation agreement is altered only as the agreement itself allows, or by a further written agreement executed with the formalities G.S. 52-10.1 requires. There is no judicial power under G.S. 50-16.9(a) to rewrite it on a showing of changed circumstances, because there is no order of a court of this State to modify.

Enforcement follows the same logic. Non-payment under an unincorporated agreement is a breach of contract, pursued by an action for damages or specific performance, and not by contempt. 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” – which is why a waiver clause, and the performance on which it depends, are examined closely before any claim is filed.

Modification is prospective and requires an order

In North Carolina, nothing about a modification is self-executing. Until the court enters a modifying order, the sum stated in the existing order continues to fall due, and unpaid installments accumulate. A paying spouse whose income has fallen does not obtain relief by paying less and explaining afterwards.

This is worth separating from the terminating events in G.S. 50-16.9(b). Where the dependent spouse remarries or engages in cohabitation, or where either spouse dies, the statute provides that the postseparation support or alimony “shall terminate”, and that happens by force of the statute. Modification under G.S. 50-16.9(a) is the opposite case: it depends on the court making an order, and it operates from the point the court fixes rather than retrospectively over payments already due.

The existing order remains enforceable throughout. G.S. 50-16.7(j) makes an order for the payment of alimony or postseparation support enforceable by proceedings for civil contempt, with disobedience punishable 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 execution, execution sale and supplemental proceedings remedies available.

Equitable distribution can reopen an alimony order

In North Carolina, G.S. 50-20(f) requires the court to “provide for an equitable distribution without regard to alimony for either party or support of the children of both parties”, and then 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. The consideration follows a request; it is not something the court undertakes of its own motion.

G.S. 50-16.3A(a) supplies a related route. Where the alimony claim was heard before the equitable distribution judgment and alimony was 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”. A distribution that transfers an income-producing asset, or allocates responsibility for a substantial debt, changes the figures the alimony order was built on.

Orders entered in another state

In North Carolina, the first question about an out-of-state alimony order is which tribunal may act. G.S. 52C-2-211(b), part of the Uniform Interstate Family Support Act, 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”. Under G.S. 52C-2-211(a), a tribunal of this State that issues a spousal support order consistent with the law of this State has continuing, exclusive jurisdiction to modify it throughout the existence of the support obligation.

G.S. 50-16.9(c) addresses the situation where modification is available. Where an order for alimony has been entered by a court of another jurisdiction, a court of this State may, on gaining jurisdiction over the person of both parties in a civil action instituted for that purpose and on a showing of changed circumstances, enter a new order for alimony that modifies or supersedes the earlier order “to the extent that it could have been so modified in the jurisdiction where granted”. Registration and enforcement of an out-of-state order proceed under Chapter 52C.

Common questions

Can alimony agreed in a separation agreement be modified in North Carolina?

It depends on whether the agreement was incorporated into a court order. An unincorporated separation agreement executed under G.S. 52-10.1 is a contract, altered only as the agreement provides or by a further written agreement executed with the same formalities. Under Walters v. Walters, an agreement brought before the court for approval and entered as a judgment is treated as a court-ordered judgment, and a support provision in it is modifiable under G.S. 50-16.9(a) on motion in the cause and a showing of changed circumstances.

Does a job loss automatically reduce an alimony obligation in North Carolina?

No. The obligation stated in the order continues until the court modifies it, and unpaid installments accumulate in the meantime. G.S. 50-16.9(a) requires a motion in the cause and a showing of changed circumstances, and the statute says the order “may” be modified or vacated, so relief is a matter for the court. A reduction in income is evidence going to ability to pay, and North Carolina appellate decisions permit a court to use earning capacity instead of actual income only where it finds the income was depressed in bad faith or in disregard of the support obligation.

Can postseparation support be modified in North Carolina?

Yes. G.S. 50-16.9(a) applies to an order “for alimony or postseparation support”, so either may be modified or vacated on motion in the cause and a showing of changed circumstances. In practice the question arises less often, because postseparation support ends by operation of G.S. 50-16.1A(4) once an order awarding or denying alimony is entered, the alimony claim is dismissed, or the date fixed in the order arrives.

Where is a motion to modify alimony filed in Charlotte?

In the existing District Court file. G.S. 50-16.9(a) requires a motion in the cause rather than a new action, so the motion is filed in the case in which the order was entered and heard in the 26th Judicial District, which covers Charlotte and the rest of Mecklenburg County. The district’s local rules of domestic court require an Affidavit of Financial Standing from both parties in alimony modification cases, together with an updated affidavit before the term in which the matter is set for trial.

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