In North Carolina, married couples are required to live separately for a full year before they can file for divorce. During this time, one spouse may not have the financial assets to support himself or herself. Post-separation support provides financial help for the dependent spouse during separation but before the couple is officially divorced.
Post-separation support is not automatic. The dependent spouse has to request the support and the other spouse may challenge support. If you have questions about post-separation support, talk to your North Carolina family law attorney for answers.
Post-Separation Support in North Carolina
Post-separation support is provided for under North Carolina Statute § 50-16.2A. When the court orders post-separation support, it shall be based on the financial needs of the parties. This includes the financial needs of one spouse and the financial ability to pay for the other spouse. Factors in determining support include:
- The parties' accustomed standard of living,
- The present employment income,
- Other recurring earnings of each party from any source,
- The parties' income-earning abilities,
- The separate and marital debt service obligations,
- Expenses reasonably necessary to support each of the parties, and
- Each party's respective legal obligations to support any other persons (including child support for children from a previous marriage).
If the court finds the resources of the dependent spouse are not enough to meet his or her reasonable needs and the supporting spouse has the ability to pay, the dependent spouse will be awarded post-separation support.
The spouse requesting post-separation support has the burden of proving dependency. The spouse may show financial need through bank statements, paychecks, credit card expenses, and other evidence of income and expenses.
The other spouse can respond to the requesting spouse to dispute financial dependency and to show the supporting spouse does not have the financial ability to provide support. When seeking or disputing post-separation support, it is important to be prepared to back up your request. Talk to your North Carolina divorce attorney about how to request or dispute post-separation support.
Is Marital Misconduct a Factor in Post-Separation Support?
Generally, post-separation support is based on financial need and ability to pay. However, the judge may consider marital misconduct by the dependent spouse that occurred on or before the date of separation. When considering marital misconduct by the dependent spouse, marital misconduct of the supporting spouse will also be considered.
Marital misconduct is not an absolute bar to receiving support. If the supporting spouse shows the dependent spouse engaged in an illicit sexual relationship prior to separation, the court may still award post-separation support. In contrast, marital misconduct by the dependent spouse may be a bar to receiving alimony upon divorce.
Under North Carolina Statute § 50-16.A, marital misconduct includes:
- Illicit sexual behavior voluntarily engaged in by a spouse with someone other than the other spouse;
- Involuntary separation of the spouses in consequence of a criminal act;
- Abandonment of the other spouse;
- Malicious turning out-of-doors of the other spouse;
- Cruel or barbarous treatment endangering the life of the other spouse;
- Indignities rendering the condition of the other spouse intolerable and life burdensome;
- Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; or
- Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
For example, a dependent spouse and supporting spouse both had affairs with other people during the marriage. If the supporting spouse does not bring up the dependent spouse's misconduct, the court will generally not consider allegations that the supporting spouse had an affair. However, if the supporting spouse alleges the dependent spouse had an affair, then the court will also consider the supporting spouse's misconduct.
How Long Does Post-Separation Support Payment Last?
In most cases, an award of post-separation support will continue until the date of divorce. Alternatively, if the couple decides to resume their marital relationship, the post-separation support may also be terminated.
When the couple is separated, they will have to wait a minimum of one year before they can file for divorce in North Carolina. After divorce, the post-separation support will end. As part of the divorce proceedings, the court may then consider whether or not to award alimony. The amount and terms of an alimony award can be agreed upon between the divorcing spouses or decided by the court.
Support may also be terminated if:
- The dependent spouse begins cohabitating with another adult, or
- The dependent spouse or supporting spouse dies.
Enforcing Post-Separation Support Payment
Even if the court has ordered post-separation support, the supporting spouse may decide not to make payments. It would then be up to the dependent spouse to seek to enforce the court support orders. Failure to make support payments can result in being held in contempt of court, which can lead to possible arrest. The court can also order the garnishment of wages, collections, or forced sale of a property.
Modifying Post-Separation Support Payment
Any order for post-separation support may be modified or vacated at any time based on a showing of changed circumstances. Changed circumstances could include a significant change in the financial situation of either spouse. For example, if the supporting spouse lost his or her job and did not have the assets to provide support, or the dependent spouse inherited a large sum of money. The court may not consider minor changes in financial status as a reason to modify a post-separation support order.
North Carolina Family Law Firm in Shelby
If you have any questions about post-separation support or alimony in North Carolina, the skilled attorneys at Caulder & Valentine are here to help. Contact us today for a consultation.