How Does The Court Decide?

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:

The social and economical standard of living that the family unit has become accustomed to during the years prior to separation
The present earnings and prospective earning capacity, as well as any other condition, including health and child support, of either spouse during the date of the hearing
The reasonable expenses of the party seeking Post Separation Support or Alimony in North Carolina in relation to the family unit’s accustomed standard of living and whether or not the spouse seeking Post Separation Support or Alimony has demonstrated a need for financial assistance from the other spouse to maintain the family’s standard of living
Considering the financial worth and estate of both parties to the action and whether or not the spouse seeking Alimony has an estate that is sufficient to maintain himself or herself in his or her accustomed standard of living without depleting his or her current estate
A court must then consider other relevant factors to each particular case.

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.

Nothing is decided until the claim is properly pleaded

In North Carolina, a district court has no power to award spousal support that no one has asked for. G.S. 50-16.2A(a) provides that in an action brought pursuant to Chapter 50 “either party may move for postseparation support”, and 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”. G.S. 50-16.3A(a) opens in the same way for alimony, with either party free to move.

The pleading also has to be in place before the marriage is dissolved. 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”, and G.S. 50-11(c) provides that 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”. In Mecklenburg County, where uncontested divorce judgments are entered on a routine calendar, the sequencing of these filings is decisive.

Financial disclosure comes before the hearing

In North Carolina, spousal support is decided on financial records. In the 26th Judicial District, covering 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 defined body of documents without waiting for a discovery request.

That exchange runs ahead of the hearing and covers the material the judge will need to make findings.

Evidence of gross income from all sources, including salary, commissions, bonuses, severance, pensions, trust income and benefits
Pay records, employee benefit statements and, for a self-employed party, company financial statements and returns
Statements for bank, credit union and brokerage accounts on which a party is a signatory
A listing of outstanding debts with balances and payment terms
Federal tax returns with schedules and attachments, and personal financial statements furnished to third parties

The postseparation support hearing

In North Carolina, postseparation support is heard first and heard quickly. 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 requires the court 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”.

The test is set by G.S. 50-16.2A(c): “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 therefore conditional in two ways. It is displaced where the marital misconduct provision in subsection (d) is engaged, and the financial findings must be reached on the subsection (b) matters – 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.

In Mecklenburg County these hearings are calendared within the domestic term with a limited allocation of time to each side, and the local rules impose service deadlines for affidavits of the parties and for affidavits from accountants or private investigators. Affidavits served late are not considered.

Settlement procedures are ordered before the alimony trial

In North Carolina, G.S. 7A-38.4A applies to district court actions involving equitable distribution, alimony or support, on the premise 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, another settlement procedure authorized by rules of the Supreme Court. Parties may select a mediator by agreement; where they do not do so within the time allowed, a district court judge appoints one.

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

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

The alimony trial and the findings the judge must make

In North Carolina, the alimony decision has two stages. 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”. Where the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, the statute directs that the court shall not award alimony; where it finds such conduct by the supporting spouse, it directs that alimony be paid to a dependent spouse; and where it finds that each participated in such an act, the outcome is discretionary. An act condoned by the other party is not considered at all.

The second stage is quantification. G.S. 50-16.3A(b) provides that the court “shall exercise its discretion in determining the amount, duration, and manner of payment of alimony”, that “the duration of the award may be for a specified or for an indefinite term”, and that in doing so the court shall consider all relevant factors, including the sixteen listed.

The order then has to explain itself. G.S. 50-16.3A(c) requires the court to “set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment”, and, except where there is a motion for summary judgment, judgment on the pleadings or another motion for which the Rules of Civil Procedure do not require special findings of fact, to “make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor”. G.S. 50-16.3A(d) allows either spouse to request a jury trial on the issue of marital misconduct; everything else is decided by the judge.

What the order can require, and what happens after it is entered

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 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. Counsel fees are governed by 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 is the dependent spouse’s, and the award is discretionary.

An alimony order can sometimes be appealed while other claims remain in the file. G.S. 50-19.1 permits a party to appeal from an order or judgment adjudicating a claim for alimony – among other listed family law claims – notwithstanding other claims pending in the same action, but only “if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action”. Where that condition is met, the statute provides that a party does not forfeit the right to appeal by declining to appeal immediately, and that the appeal does not deprive the trial court of jurisdiction over the other claims pending in the same action.

The order also remains open to the court that entered it. G.S. 50-16.9(a) allows modification or vacation at any time on motion in the cause and a showing of changed circumstances, and G.S. 50-16.9(b) sets out the events – remarriage or cohabitation by the dependent spouse, and the death of either spouse – on which the support terminates by force of the statute.

Common questions

Does a judge in North Carolina have to hear live testimony to award postseparation support?

No. 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”. The judge must still set forth the reasons for the award or denial and, where an award is made, the reasons for its amount, duration and manner of payment. Local rules in the 26th Judicial District set deadlines for serving affidavits before the hearing, and affidavits served late are not considered.

Is mediation required before an alimony trial in North Carolina?

It is commonly ordered rather than automatic. G.S. 7A-38.4A applies to district court actions involving equitable distribution, alimony or support, and a chief district court judge may order a mediated settlement conference or, with the parties’ consent, another authorized settlement procedure. Where a conference is ordered, attendance by the parties, their attorneys and those with authority to settle is required unless the rules excuse it, and a participant who fails to attend without good cause is subject to the contempt powers of the court and to monetary sanctions.

What findings must a North Carolina alimony order contain?

G.S. 50-16.3A(c) requires the court to set forth the reasons for its award or denial of alimony and, where an award is made, the reasons for its amount, duration and manner of payment. Except where there is a motion for summary judgment, judgment on the pleadings or another motion for which the Rules of Civil Procedure do not require special findings of fact, the court must also make a specific finding of fact on each of the sixteen factors in G.S. 50-16.3A(b) on which evidence was offered.

Can an alimony order be appealed before the rest of the case is finished?

Only where the order would otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims. On that condition, G.S. 50-19.1 allows a party to appeal from an order or judgment adjudicating a claim for alimony notwithstanding other claims pending in the same action. The statute also provides that a party does not forfeit the right to appeal by failing to appeal immediately, and that the appeal does not deprive the trial court of jurisdiction over the other claims pending in the same action.

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