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 is equitable after consideration of all relevant factors. According to the North Carolina General Statute, the court should consider all of the following factors to be relevant:

During a trial for Alimony, under North Carolina General Statute 50-16.3A(b) the trial court must support its award or denial of Alimony with findings of fact on each of these factors if either the plaintiff or defendant has presented sufficient evidence.

At the Law Offices of David P. Sheehan, we understand the individual complexities that you may face when dealing with a claim for Post Separation Support and/or Alimony and assist individuals in Mecklenburg and all surrounding counties.

The sixteen factors listed in G.S. 50-16.3A(b)

In North Carolina, 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”, and that in doing so it “shall consider all relevant factors, including” the following.

The marital misconduct of either of the spouses
The relative earnings and earning capacities of the spouses
The ages and the physical, mental, and emotional conditions of the spouses
The amount and sources of earned and unearned income of both spouses, including earnings, dividends and benefits such as medical, retirement, insurance and social security
The duration of the marriage
The contribution by one spouse to the education, training, or increased earning power of the other spouse
The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child
The standard of living of the spouses established during the marriage
The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs
The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support
The property brought to the marriage by either spouse
The contribution of a spouse as homemaker
The relative needs of the spouses
The federal, State, and local tax ramifications of the alimony award
Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper
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 of the parties’ marital or divisible property

The factors govern amount and duration, and feed the equity finding

In North Carolina, the factor list is reached only after the two status findings are available. G.S. 50-16.3A(a) requires the court to find that one spouse is a dependent spouse and that the other is a supporting spouse before it can award alimony at all. Where those findings cannot be made, there is nothing for the factors to operate on.

It does not follow that the factors are confined to quantification. The third finding required by G.S. 50-16.3A(a) is that an award of alimony is “equitable after considering all relevant factors, including those set out in subsection (b) of this section”, so the same sixteen factors inform whether an award should be made as well as how large it should be. G.S. 50-16.3A(b) then governs amount, duration and manner of payment, provides that “the duration of the award may be for a specified or for an indefinite term”, and leaves the weighing to the court’s discretion. G.S. 50-16.7(a) sets out the permitted forms of payment: lump sum payment, periodic payments, income withholding, 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. There is no formula in North Carolina and no guideline table.

The court must make a specific finding on each factor supported by evidence

In North Carolina, G.S. 50-16.3A(c) turns the factor list into a drafting obligation. The court “shall 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”. Except where there is a motion before the court 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 “shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor”.

The condition is evidence, not argument. A factor on which neither party offers evidence does not require a finding, and a factor on which evidence was offered does, whichever way the judge resolves it. This is why alimony trials in Mecklenburg County District Court are organized factor by factor, and why the Affidavit of Financial Standing required by the 26th Judicial District’s local rules carries so much weight: it is the document from which most of the findings are ultimately drawn.

Factor one and the special treatment of illicit sexual behavior

In North Carolina, marital misconduct heads the list at G.S. 50-16.3A(b)(1), and the factor carries its own qualification: nothing in it prevents the court “from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation”. Marital misconduct itself is defined in G.S. 50-16.1A(3) and is confined to acts occurring during the marriage and prior to or on the date of separation.

One category is removed from the weighing altogether, though not unconditionally. Under G.S. 50-16.3A(a), a finding of illicit sexual behavior by the dependent spouse 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 shall not be considered by the court, so condonation is examined before either mandatory rule takes effect. G.S. 50-16.3A(d) permits either spouse to request a jury trial on the issue of marital misconduct within the alimony claim.

Factor two, earning capacity, and the bad faith requirement

In North Carolina, factor (2) refers to “the relative earnings and earning capacities of the spouses”, but the reference to capacity does not license a court to award support on hypothetical income. Appellate decisions have held consistently that a support award must rest on actual present income unless the court finds that a party has deliberately depressed that income in bad faith or in disregard of the support obligation.

Voluntary unemployment or under-employment on its own is not enough. The order must contain findings that explain why the income was reduced and why the reduction was made in bad faith. The rule applies equally to a supporting spouse whose earnings have fallen and to a dependent spouse who has stopped working, which is why the reasons behind a career change, a reduced schedule or a business restructuring are usually litigated in detail.

Factor fourteen and the tax treatment of alimony

In North Carolina, factor (14) directs the court to “the federal, State, and local tax ramifications of the alimony award”. The federal position changed for divorce or separation instruments executed after 31 December 2018: section 11051 of the federal Tax Cuts and Jobs Act repealed the deduction for alimony paid and the corresponding inclusion in the recipient’s income, so payments under those instruments are neither deductible by the payer nor taxable to the recipient.

Instruments executed on or before that date remain under the earlier treatment unless they are later modified in terms that expressly provide that the amendments apply. Because the tax character of a payment affects what a given figure is actually worth to each household, the factor is usually argued alongside factor (13), the relative needs of the spouses, rather than in isolation. Tax advice on a particular instrument is a matter for a tax professional; the point here is only that the statute requires the court to consider the question.

Factors ten, eleven and sixteen, and the overlap with equitable distribution

In North Carolina, three of the sixteen factors reach directly into the property claim. Factor (10) concerns the relative assets and liabilities of the spouses and their relative debt service requirements, including legal obligations of support. Factor (11) concerns the property brought to the marriage by either spouse. Factor (16) concerns “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 of the parties’ marital or divisible property”.

The claims remain formally separate. 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. G.S. 50-16.3A(a) allows the alimony claim to be heard on the merits before an equitable distribution judgment, with amount and the dependency findings open to review after the distribution claim concludes.

Common questions

Must a North Carolina judge weigh all sixteen alimony factors equally?

No. G.S. 50-16.3A(b) requires the court to consider all relevant factors, including the sixteen listed, but assigns no weights and prescribes no formula. The statute leaves amount, duration and manner of payment to the court’s discretion. What G.S. 50-16.3A(c) does require is 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 of fact – together with the reasons for the award or denial.

Is there a seventeenth factor in the North Carolina alimony statute?

In effect, yes. Factor (15) in G.S. 50-16.3A(b) is “any other factor relating to the economic circumstances of the parties that the court finds to be just and proper”, and the opening words of the subsection require the court to consider “all relevant factors, including” those listed. The list is a floor rather than a ceiling, though the catch-all is limited by its own terms to economic circumstances.

How does the length of the marriage affect alimony in North Carolina?

Duration of the marriage is factor (5) in G.S. 50-16.3A(b). It bears on amount and duration, and on whether an award is equitable, rather than on the status findings. Entitlement turns first on the dependent spouse and supporting spouse findings required by G.S. 50-16.3A(a). North Carolina sets no minimum marriage length for alimony and no schedule linking years of marriage to years of support.

Does the court consider the standard of living during the marriage?

Yes. Factor (8) in G.S. 50-16.3A(b) is “the standard of living of the spouses established during the marriage”, and the same benchmark runs through the dependency definition in G.S. 50-16.1A(2) and the postseparation support criteria in G.S. 50-16.2A(b), which refers to “the parties’ accustomed standard of living”. It is the reference point against which reasonable needs are measured.

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