When Does Alimony End?

Even though we handle a large amount of Alimony and Post Separation Support cases in Mecklenburg and the surrounding Counties, we also assist many clients with the termination and modification of Alimony. In North Carolina, the Termination of Post Separation Support and Alimony ends upon:

A date specified in a Court Order
Death or remarriage of a dependant spouse
The resumption of marital relations as defined by N.C.G.S. § 52-10.2
Continuous Cohabitation evidenced by the voluntary mutual assumption of marital rights, duties and obligations which include but are not necessarily dependent on sexual relations.

Additionally, in North Carolina, Post Separation Support ends upon the awarding or denial of Alimony by a trial court.

It is important that an individual obligated to pay Alimony speak with a Divorce Attorney immediately if they believe their Alimony obligation should end, as his or her obligation will continue until a proper motion is brought before the court.

The terminating events set out in G.S. 50-16.9(b)

In North Carolina, G.S. 50-16.9(b) provides that if a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State “remarries or engages in cohabitation, the postseparation support or alimony shall terminate”, and that “postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse”.

Three details in those sentences are frequently misread. The verb is “shall terminate”: the obligation ends when the event happens, by force of the statute, and not on the date a judge later says so. Death terminates the obligation whether it is the paying spouse or the receiving spouse who dies, so the obligation is not an estate liability that survives the payer. And the subsection applies to support payable “under a judgment or order of a court of this State”, which is why a purely contractual obligation created by an unincorporated separation agreement is governed by its own terms instead.

The subsection closes with a reminder that “nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes”. Termination is a consequence attached to the fact of remarriage, cohabitation or death; the subsection is not a license, and it says nothing about the conduct itself.

What cohabitation means under the statute

In North Carolina, cohabitation is defined within G.S. 50-16.9(b) itself as “the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship”. The statute continues that cohabitation “is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations”.

Two elements therefore have to be shown: a continuous and habitual living arrangement, and the mutual assumption of the rights and duties that married people usually take on. Occasional overnight stays do not meet the definition, and the closing words make clear that a sexual relationship is neither sufficient by itself nor strictly necessary.

North Carolina appellate decisions have read the provision as directed at the character of the relationship – whether the parties have voluntarily assumed the kind of mutual rights and duties that marriage involves – rather than at the parties’ private arrangements as such. Because the test is factual and heavily contested, cohabitation is usually litigated on evidence of shared addresses, shared expenses, joint accounts and the practical organization of the household.

Resumption of marital relations while the parties are still married

In North Carolina, spouses who reconcile before divorce face a different provision. G.S. 50-16.9(a) directs that any motion to modify or terminate alimony or postseparation support “based on a resumption of marital relations between parties who remain married to each other shall be determined pursuant to G.S. 52-10.2”.

That section defines resumption of marital relations as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and adds that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations”. The inquiry is into whether the marriage itself was renewed, judged on everything that happened, not on any single event. Unlike remarriage, cohabitation or death, this route runs through a motion and a judicial determination.

Postseparation support ends on its own statutory schedule

In North Carolina, postseparation support is temporary by definition and ends without anyone having to prove cohabitation or remarriage. G.S. 50-16.1A(4) provides that it is paid until the earlier of any of the following: 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; or termination of postseparation support as provided in G.S. 50-16.9(b).

The fourth of those has caught a great many people. Where the alimony claim was never pleaded, or has been dismissed, an absolute divorce judgment ends postseparation support and leaves nothing behind it. G.S. 50-16.1A(4) states the corollary directly: “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”. G.S. 50-11(c) points the same way, providing 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 when the divorce judgment is granted.

Termination operates by law, but an order should still be obtained

In North Carolina, the events in G.S. 50-16.9(b) end the obligation of their own force. Where the dependent spouse remarries or engages in cohabitation, or where either spouse dies, the statute says the support “shall terminate”. No motion is needed to bring that about, and payments falling due after the event are not owed.

The reason a motion in the cause is nonetheless filed is evidential and administrative rather than jurisdictional. A supporting spouse who simply stops paying takes on the burden of establishing the remarriage, the cohabitation or the death if the other spouse moves to enforce, and cohabitation in particular is a fact-heavy question that is rarely conceded. Until the court confirms the termination, an income withholding order under G.S. 50-16.7(l1) continues to operate against the payer’s employer, and any bond, mortgage, deed of trust or assignment of income taken as security under G.S. 50-16.7(b) stays in place.

Enforcement machinery is what makes the risk real. G.S. 50-16.7(j) provides that an order for the payment of alimony or postseparation support “is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt”, and G.S. 50-16.7(k) makes the execution, execution sale and supplemental proceedings remedies available. A payer who is right on the law but short of proof still has to defend those proceedings. The application to terminate is made by motion in the cause in the file in which the order was entered – in Charlotte, the District Court file in the 26th Judicial District.

Contractual support can end on entirely different terms

In North Carolina, where support was agreed rather than ordered, the agreement supplies the ending. G.S. 52-10.1 authorizes a separation agreement 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, and such an agreement is a contract. G.S. 50-16.9(b) speaks only to support payable under a judgment or order of a court of this State.

The consequence is that an unincorporated agreement may continue past a remarriage or a period of cohabitation if it does not say otherwise, and may equally end on conditions the statute does not recognize. Under Walters v. Walters, an agreement brought before the court for approval and entered as a judgment is treated as a court-ordered judgment rather than a contract, which brings the statutory terminating events and the contempt power into play. Under G.S. 50-16.6(b), alimony, postseparation support and counsel fees may also be barred outright “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”.

Payments that fell due before termination remain owed

In North Carolina, termination operates on the future obligation. Installments that came due before the terminating event are not canceled by it, and the remedies in G.S. 50-16.7 remain available to collect them, including the contempt proceedings authorized by G.S. 50-16.7(j) and the execution and supplemental proceedings remedies made available by G.S. 50-16.7(k).

Security given for the obligation is dealt with in the same order. Where payment was secured by bond, mortgage or deed of trust under G.S. 50-16.7(b), or by an assignment of wages, salary or other income, the order confirming termination is where that security is released. Under G.S. 50-16.7(i) a judgment for alimony is not a lien on real property unless the judgment expressly so provides, specifies the amount due as a sum certain, and adequately describes the real property affected.

Common questions

Does alimony end automatically when the recipient remarries in North Carolina?

Yes. G.S. 50-16.9(b) provides that where a dependent spouse receiving postseparation support or alimony under a judgment or order of a court of this State remarries or engages in cohabitation, the support “shall terminate”. That happens by force of the statute from the date of the event, not from the date of a court order. A motion in the cause is still filed in the case in which the order was entered, because the paying spouse carries the burden of proving the remarriage if enforcement is attempted, and because an order is what ends income withholding under G.S. 50-16.7(l1) and releases any security taken under G.S. 50-16.7(b).

Does alimony end if the paying spouse dies in North Carolina?

Yes. G.S. 50-16.9(b) provides that postseparation support or alimony “shall terminate upon the death of either the supporting or the dependent spouse”. The obligation does not pass to the paying spouse’s estate. Payments that fell due before the death remain owed, and where the court required security under G.S. 50-16.7(b) that security is dealt with in the order resolving the obligation.

What does cohabitation mean for North Carolina alimony purposes?

G.S. 50-16.9(b) defines it as two adults “dwelling together continuously and habitually” in a private relationship that need not be solemnized by marriage, evidenced by “the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations”. Occasional overnight stays do not satisfy the definition; the relationship must be continuous, habitual and marriage-like in its practical arrangements.

Does reconciling end an alimony order in North Carolina?

Not by itself, and not on the same footing as remarriage. Where the parties remain married to each other, G.S. 50-16.9(a) directs that a motion to modify or terminate based on a resumption of marital relations be determined under G.S. 52-10.2. That section defines resumption of marital relations as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and provides that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations”. Because the route runs through a motion, the court decides the question on the whole picture.

Can an alimony order end earlier than the date written in it?

Yes. A date fixed in the order is an outer limit rather than a guaranteed endpoint. The terminating events in G.S. 50-16.9(b) – remarriage or cohabitation by the dependent spouse, or the death of either spouse – operate whenever they occur, by force of the statute. Separately, G.S. 50-16.9(a) allows an order for alimony or postseparation support, whether contested or entered by consent, to be modified or vacated at any time on motion in the cause and a showing of changed circumstances; that route depends on the court making an order.

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