Lawyers For Alimony During Legal Separation

Charlotte Lawyers For Post-Separation Support Agreements

As of October 1995, North Carolina courts can now award spousal support on a temporary basis to be paid during the period of legal separation prior to the final divorce decree. It is commonly referred to as post-separation support (PSS) and is not intended to be permanent support. The amount of support is either agreed to by the spouses or determined by an order of a judge.

Why negotiate a fair spousal support agreement? If temporary alimony is ordered by a judge, the PSS amount can also include paying some of your spouse's attorneys' fees.

What Goes Into Determining Whether PSS Should Be Awarded

Remember, one party will not come out financially ahead of the other party when it comes to spousal support. The courts are very aware of the financial needs of both parties but will take into account marital misconduct which may have contributed to the divorce.

Once it is demonstrated there was a dependent spouse and a supporting spouse, the court will look to see if the supporting spouse has the ability to pay. The court will then decide the amount and the duration of the post-separation support or alimony based on a multitude of factors, including (but not limited to):

  • Financial needs and debt obligations of both parties
  • Accustomed standard of living for both parties
  • Present employment income and other recurring earnings of each party from any source
  • Earning abilities of both spouses
  • Living expenses of both parties
  • Child support obligations
  • Spousal support obligations from a previous marriage

Alimony And Entitlement To Alimony

While post-separation support is temporary in nature and is designed to put the parties on equal footing, alimony is designed to be more long term or permanent in nature. Like PSS, the court, after considering all relevant factors, will determine the duration and amount of alimony.

Some Frequently Asked Questions We Receive About Alimony

If the dependent spouse engages in illicit sexual behavior does he/she receive alimony?

The answer to this question is it depends. If the dependent spouse engages in illicit sexual behavior and that behavior is proven in a court of law, it may have an impact on the amount and duration of the alimony that spouse receives if the court decides that he or she would have been entitled to such an award notwithstanding the illicit sexual behavior. Proof of illicit sexual behavior could mean a decrease in the amount or a shorting of the duration of the alimony award or it could mean an outright denial of alimony to that spouse. It will depend on the evidence brought forth in court and in the testimony of the witnesses.

What impact could my dating another person have on post-separation support and alimony?

In the state of North Carolina, your spouse can bring a third-party claim for criminal conversation against someone you are in a romantic relationship with up until the time of divorce. What this means is after separation from your spouse you still run the risk of your spouse citing marital misconduct if you are dating and having sexual relations with a third party.

Does a divorce have to be pending to bring an action for post-separation support and alimony?

You must only be separated in order to bring an action for post-separation support and alimony. As with equitable distribution, child support and child custody, post-separation support and alimony can be filed, settled or litigated long before your divorce complaint is ever filed and granted.

How is the supporting spouse's income used to determine alimony?

The court will be looking at financial affidavits filed by the respective parties. These financial affidavits will set forth the income earned on a monthly basis by each party and the expenses they pay on a monthly basis. The court must be able to see that the supporting spouse has discretionary income left over on a monthly basis after all reasonable expenses have been paid. The courts will additionally look at the earning capacities of the spouses, the health status of the parties involved and the income of the parties involved rather than at what might be the case in the future.

Can my spouse quit working to avoid paying alimony?

If a spouse is purposely decreasing his or her income, the court may impute or allocate the income to him or her that he or she used to make when he or she was previously employed. Ultimately, the court will be looking toward the intent of the paying parent to determine if the spouse was attempting to evade paying by either quitting or purposely getting fired from his or her employment.

Can post-separation support, alimony and attorney's fees be waived? What role do Separation Agreements and premarital agreements play in this process?

If you enter into a separation and property settlement agreement or a premarital agreement you may waive post-separation support, alimony and attorney's fees. This will be nonmodifiable because both a separation and property settlement agreement and a premarital agreement are contracts between you and your spouse and may only be modified with the consent of both parties.

Can spouses testify against one another in an alimony action? What evidence may be excluded?

Spouses may testify against each other in an alimony action; however, hearsay will be excluded as evidence. Additionally, acts of marital conduct that have been condoned by the party seeking alimony will also be excluded.

What is meant by alimony recapture?

Alimony recapture refers to a tax consequence that might apply to the payer spouse when the alimony payments decrease over a three-year period. You should seek the advice and counsel of an attorney in determining whether you may be subject to the alimony recapture rule due to the manner your payment of alimony is structured within your specific situation.

Contact Us

Call our office in Charlotte at 704-533-8636 or send an email to arrange a consultation with one of our divorce lawyers about spousal support during the divorce process.