Two kinds of support: PSS and alimony

Who is a “dependent spouse”?

G.S. 50-16.1A defines a dependent spouse as one who is actually substantially dependent on the other spouse for maintenance and support, or is substantially in need of maintenance and support from the other spouse. A supporting spouse is the one upon whom the other is actually substantially dependent or from whom the other is substantially in need of support.

The North Carolina Supreme Court explained in Williams v. Williams, 299 N.C. 174 (1980), that “substantially in need” is measured against the accustomed standard of living established during the marriage — not mere survival. A spouse who could pay rent and buy groceries on her own income may still be dependent if she cannot maintain the lifestyle the couple built together. In Quick v. Quick, 305 N.C. 446 (1982), the Court emphasized that trial judges must make specific findings about the parties’ incomes, expenses and standard of living.

The sixteen factors

Once dependency is established, G.S. 50-16.3A(b) directs the court to consider all relevant factors, including:

Marital misconduct and illicit sexual behavior

This is where North Carolina alimony law becomes unusual. G.S. 50-16.1A lists nine kinds of marital misconduct occurring during the marriage and on or before the date of separation:

• Illicit sexual behavior (sexual acts with someone other than the spouse)
• Involuntary separation caused by a criminal act
• Abandonment of the family
• Maliciously turning the other spouse out of doors
• Cruel or barbarous treatment endangering the life of the other spouse
• Indignities rendering the other spouse’s condition intolerable and life burdensome
• Reckless spending, destruction, waste, diversion or concealment of assets
• Excessive use of alcohol or drugs rendering the other spouse’s condition intolerable
• Willful failure to provide necessary subsistence according to one’s means

Illicit sexual behavior receives special treatment under G.S. 50-16.3A(a):

Misconduct after the date of separation generally is not marital misconduct for these purposes, though it can be used to corroborate pre-separation conduct. Because the stakes are so high, North Carolina allows a jury trial on the issue of marital misconduct. Affairs can also lead to separate lawsuits against the third party — see our guide to alienation of affection and criminal conversation.

How much and how long?

Because there is no formula, the amount usually starts with a careful budget: the dependent spouse’s reasonable monthly needs (measured by the marital standard of living) minus his or her own income, compared with the supporting spouse’s ability to pay after meeting his or her own reasonable needs. Our step-by-step guide to building a credible alimony budget shows how to prepare the financial affidavit that drives the case.

Duration is also discretionary. Judges often consider how long the marriage lasted, how long the dependent spouse needs to retrain or re-enter the workforce, and the ages and health of both spouses. Many practitioners see shorter marriages produce rehabilitative awards lasting a few years and long marriages produce longer or even indefinite awards — but every case turns on its findings. The order must state the reasons for the amount, duration and manner of payment.

Modification and termination

Under G.S. 50-16.9, alimony can be modified on a showing of changed circumstances, and it terminates on the death of either spouse or the dependent spouse’s remarriage or cohabitation — generally, the dependent spouse living with an adult in a marriage-like relationship involving the voluntary mutual assumption of marital rights, duties and obligations.

Taxes

For divorce or separation instruments executed after December 31, 2018, alimony is no longer deductible by the payer or taxable to the recipient for federal income tax purposes. That changes the real cost of every dollar and should be built into negotiations.

Protecting the claim: deadlines and strategy

Like equitable distribution, an alimony or PSS claim must be pending before the absolute divorce judgment, or it is barred (G.S. 50-11). If you are served with a divorce complaint, act quickly; our article Served With Divorce Papers in Stanly County? explains what to do in the first thirty days.

Strategy usually unfolds in three phases:

Agreements: the private alternative

Spouses can resolve support by contract in a separation agreement — choosing the amount, duration, triggers for termination, and even whether the payments survive cohabitation. Contract alimony is enforced like a contract unless incorporated into a court order. Before signing, read what to settle before you sign. For a full overview of the divorce process, see our complete Albemarle and Locust divorce guide.

Frequently asked questions