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Alimony

In North Carolina, alimony is an order for payment for the support and maintenance of a spouse or former spouse for a specified or for an indefinite term. A “dependent spouse” is a spouse who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.

“Actually substantially dependent” means that the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which that spouse became accustomed to during the last several years prior to separation.

If the trial court determines that one spouse is not substantially dependent upon the other, the court considers the second test, whether one spouse is substantially in need of maintenance and support. There are several factors the trial court will consider in determining whether one spouse is substantially in need. Some examples of these factors include determining the parties’ accustomed standard of living, determining the parties present earnings and prospective earning capacity, considering the value of each party’s individual estate, considering the duration of the marriage, as well as multiple other factors.

An award for alimony must be fair and equitable after all relevant factors are considered. Once a court determines that a spouse is entitled to alimony, the court must then determine “how much alimony” and “for how long of a duration”. The trial court must determine the needs of the dependent spouse and the ability of the supporting spouse to address those needs, compare the income and expenses of both spouses and consider all other relevant factors.

It is important to note that if the spouse requesting alimony has participated in an act of illicit sexual behavior prior to separation, that act will serve as a complete bar to alimony, unless the supporting spouse has also engaged in illicit sexual behavior or has condoned the dependent spouses acts. To determine whether the acts have been “condoned”, the trial court weights the totality of the circumstances to determine if the supporting spouse has forgiven the dependent spouse. An example of relevant evidence the court will look to in making this determination is documentary evidence showing forgiveness (letters, emails, cards, etc.), evidence of the spouses continuing to live and sleep together with the full knowledge of the illicit acts, evidence of marital counseling to reconcile the relationship with knowledge of the illicit sexual acts, as well as several other factors.

Alimony can be terminated if the dependent spouse cohabitates with a new partner. Cohabitation means “living together as man and wife” and includes “marital responsibilities and duties usually manifested by married people”. It is important to note that cohabitation does not necessarily mean sexual relations. Alimony is also terminated when either spouse passes away, when the dependent spouse gets remarried and when the duration for alimony payments awarded by the Court ends.

Clearly, alimony is a very complex topic that contains many nuances and it is very important to consult with an attorney to determine if you or your spouse qualify for alimony.

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