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Alimony in North Carolina – NCGS 50-16.3A

Alimony under North Carolina law is a form of spousal support.  It is “permanent” spousal support where postseparation support is temporary.   North Carolina does not have guidelines that automatically calculate the duration or amount of alimony.  Affidavits are usually a part of eery alimony case in North Carolina.

The principle concepts of award alimony relate to which spouse is the supporting spouse, which spouse is dependent, and whether particular fault grounds  exist.

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Raleigh divorce lawyerScott Allen handles alimony and modification of alimony and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Postseparation Support in North Carolina

postseparation support Postseparation support is a ration of the 1995 statutory amendments that overhauled the alimony and temporary alimony law in North Carolina.  Postseparation support is temporary alimony.   It is designed as a stop-gap measure to help dependent spouses get support after separation and until final alimony is awarded or denied.

Fault usually plays little to no role in the postseparation support hearing.  Frequently the postseparation support award is based primarily on financial affidavits that are filled out by the parties prior to the hearing.    In Wake County, North Carolina, postseparation support hearings are time-limited by the court.

 

§ 50‑16.2A.  Postseparation support.

(a)        In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.

(b)        In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income‑earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.

(c)        Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.

(d)       At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.

(e)        Nothing herein shall prevent a court from considering incidents of post date‑of‑separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation. (1995, c. 319, s. 2.)

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Raleigh divorce lawyer Scott Allen handles postseparation support, alimony, and all other types of family law matters.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Financial Mediation in Wake County – The Basics

Wake County has a family court system and local rules that are designed to streamline the court process.  Financial mediation is a requirement in Wake County family law cases where equitable distribution, postseparation support, and alimony are at issue.

Family financial mediation is presided over by a mediator.  A mediator is a neutral person who is there to assist the parties in reaching a settlement of their disputes.

Prior to the mediation, the mediator will have each party sign a mediation agreement that sets out the details of the mediation and how the mediator’s fee will be paid. The mediator’s fee is usually divided equally between the parties and is due at the end of the mediation.

The mediator may not be called as a witness in the case and is boung by rules of strict confidentiality.  Also, offers made back and forth at mediation cannot be used against a party in court.  For example, let’s say you agreed to accept $100,000 to settle equitable distribution at the mediation.  If it does not settle, the other party can’t go into court and say that you agreed to accept that amount.

Generally, the parties are in separate rooms with their lawyers.   The mediator will go back and forth throughout the day carrying offers and counteroffers between the parties.

If the mediation is successful, the parties usually sign a settlement document at the end of the mediation.  The reason a document is signed at mediation is to insure that a deal has been reached and people won’t change their minds later on.

Mediation is a way for the parties to settle their conflict outside of a courtroom.  It can save money and time.  Mediation is also less emotionally taxing than going to court.

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Raleigh lawyer Scott Allen is a mediator and also represents clients in equitable distribution, postseparation support, and alimony cases.

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  


		

		
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Taxes and Your Divorce – Alimony
 
		
				

			
As the year draws to a close one issue that many separated and divorcing couples have not considered is the impact of the tax laws on their divorce.  Taxes absorb a significant amount of income and impact cash flow and wealth.  If you are paying or receiving alimony there are important rules about how they impact your taxes.


Amounts of spousal suport paid under divorce or alimony order or written separation agreements entered into between you and your spouse or former spouse will be considered alimony for Federal tax purposes only if:


    

  • You do not file a joint tax return with your spouse or former spouse;
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  • Payments are made in cash, checks or money orders;
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  • The payment is received by your spouse or former spouse
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  • The document under which it is paid  does not say that the payment is not alimony;
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  • You and your spouse are not members of the same household when you make the payment;
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  • You have no liability to make the payment after the death of your spouse or former spouse, and
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  • Your payment is not child support or for a property settlement.
    • 



Alimony does not include:


    

  • Payments for child support
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  • Property settlements
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  • Payments to keep up the payer’s property, or
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  • Use of the payer’s property
    • 



The payor of alimony may deduct from income on his taxes the amount of alimony or separate maintenance paid.  The recipient must include in income alimony or separate maintenance she received.


As indicated above, child support is never deductible. Also, noncash property settlements, whether in a lump sum or installments, are not alimony. Voluntary payments are also not considered alimony for tax purposes.


 


 

		

		
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Jury Trial in North Carolina Family Law Cases
 
		
				

			
Most family law cases in North Carolina are heard in district court by a district court judge sitting without a jury.   When a judge hears a case without a jury, the judge decides both how to apply the law to the case and what the facts of the case are.


Although not a typical family law case, claims for alienation of affections and criminal conversation may be heard by a jury if either party makes a timely demand.  In alienation of affections and criminal conversation the jury decides both liability for the claims and the money  damages to award (or not award) to the plaintiff.


Either party in an alimony case has the right to request a jury trial; however, North Carolina law limits the jury’s involvement to the determination of marital misconduct or fault.  A jury in an alimony case cannot set the amount or duration of the alimony award.


A jury trial is absolutely not available in child custody or child support cases or in equitable distribution of property cases; however, one may be demanded in an absolute divorce,  divorce from bed and board and annulment actions.


Family law attorney Scott Allen has litigated cases before judges and juries and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

		

		
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Should I ask for a jury trial in my alimony case in North Carolina?
 
		
				

			
 


North Carolina law, G.S. § 50-16.3A(d), allows a jury trial on the issue of marital misconduct for the determination of alimony.  The jury’s role in an alimony case is not to determine the amount or duration of alimony payments, but only to establish fault under the alimony statute.


If you asked lawyers who have practiced family law they would say it is not worth the effort, especially since the 1995 amendments to the alimony statute.  They would say this because fault now plays a much smaller role than it used to in North Carolina.


In all my years of practice I have only requested a jury trial in alimony case a few times.  I can see some utility to the jury demand. First, most domestic lawyers are simply not used to jury trials because they happen so rarely in domestic district court. Second, marital fault is an embarrassing subject for most people and the prospect of airing that dirty laundry (on both sides) in front of a court room full of jurors and witnesses is often overwhelming to one or both parties.  Finally, a jury trial would create additional legal costs and scheduling issues that one or both parties likely would want to avoid and increase the chance of settling the claim before trial.

		

		
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