Post Separation Support and Alimony
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Contrary to most people's beliefs, entitlement to post separation support and alimony is based more on economic factors than it is marital fault. For a spouse to be entitled to post separation support or alimony, they must be a dependent spouse and the other spouse must be a supporting spouse. Post separation support refers to temporary support in the time period between the separation and the final resolution of the alimony issue, whereas alimony refers to a fixed support obligation that continues for a certain period of time. Essentially, post separation support is "temporary alimony," but there are some meaningful distinctions between the two terms that a family law attorney can discuss with you in more detail. The key factors for entitlement to support under North Carolina law are that the dependent spouse does not have adequate resources to meet their reasonable needs, and the supporting spouse has the ability to pay. Unlike child support, there are no guidelines or concrete figures which give guidance in this area, which tends to make the negotiation of these issues more difficult. A family law attorney can give you detailed advice regarding whether you are technically a dependent or supporting spouse based on current case law and their experience negotiating or litigating these issues. A family law attorney can also advise you as to the methods and general rules of thumb that are helpful in negotiating post separation support and alimony issues, and can also explain the statutory factors a court must look at when making such awards. Only in a case where this first economic factor is met does fault become an issue. If the dependent spouse has engaged in illicit sexual behavior, then this serves as a bar to an alimony award. If the supporting spouse has engaged in illicit sexual behavior, then the dependent spouse is automatically entitled to an award of alimony. If both spouses have committed acts of uncondoned illicit sexual behavior, then the issue is left to the judge's discretion. Under current law, only acts of illicit sexual behavior committed on or before the date of separation are considered marital misconduct. By statute, the court may also consider other marital fault, including adultery, abandonment, excessive use of alcohol or drugs, and reckless spending. A family law attorney can advise you about the proof issues involved as well as the technicalities involved in defining adultery or marital misconduct. It is important to be up-front and honest with your attorney about any marital misconduct you may have committed so the attorney can advise you what impact this may have on the support issues during your separation and divorce. Generally, the two major issues with respect to alimony are the amount of the award and the length of the term of payment. The amount of the award, which is usually a sum paid monthly, can be based on a variety of factors, including the parties' accustomed standard of living, the relative earnings and earning potential of the spouses, the physical and mental health of the spouses, the relative assets and liabilities of the spouses, and the contribution of one spouse to the education or increased earning power of the other spouse. The length of the term of payment is usually based on the length of the marriage. There are also tax consequences that must be taken into account when determining alimony, which are discussed in more detail in Tax Issues in Divorce Law. Like other domestic issues, post separation support and alimony can be settled between the parties through a separation agreement or a consent order. If a spouse files a complaint for post separation support and/or alimony, then the local domestic rules are triggered. The spouse who filed the complaint must file a Financial Affidavit (WAKE-DOM-10) and a form called Initial Disclosures (Support) (WAKE-DOM 17a) within fifteen days of filing the complaint, and the other spouse must file the same forms within fifteen days of being served with the complaint. The Initial Disclosures (Support) also require each spouse to provide supporting financial documents to the other spouse with their responses. Resource Links:Wake County Domestic Court Rules: Public Education Brochure Articles about Tax Consequences http://edzollars.com/2005-12-03_Alimony_Defintion.pdf The Deductibility of Alimony Contact Heather Williams at Crawford & Crawford at 919-510-8140 to schedule an initial family law consultation to discuss post separation support and alimony. |
