Q2. What is the definition of “alimony” in North Carolina?

Q3. What is the meaning of the term “dependent spouse” for purposes of receiving alimony or post-separation support in North Carolina?

Q4. What is the definition of illicit sexual behavior for purposes of alimony in North Carolina?

Q5. What are the sixteen factors that the court uses in determining the amount and duration of the award of alimony in North Carolina?

1. What does the term “post-separation support” mean in North Carolina?

ANSWER: Post-separation support is temporary alimony also called temporary spousal support. It is paid from a supporting spouse to a financially dependent spouse. The support is ordered by the court and may be paid retroactively from the date of separation until the earlier of any of the following dates:

a. The date specified in the order for postseparation support.

b. The entry of an order awarding or denying alimony.

c. The dismissal of the alimony claim.

d. The entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment of absolute divorce.

e. Termination of postseparation support as provided in G.S. 50-16.9(b).

No showing of fault is necessary to receive post-separation support. However, the parties must still be married when a claim for post-separation support or alimony is filed.

2. What is the definition of “alimony” in North Carolina?

ANSWER: "Alimony" means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce. The parties must still be married when a claim for post-separation support or alimony is filed.

     No showing of marital misconduct is required to receive alimony. However, if the court finds that the dependent spouse committed an act of illicit sexual behavior, as described below, during the marriage and prior to or on the date of separation, the court will not award alimony. Likewise, if the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court will automatically order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.

3. What is the meaning of the term “dependent spouse” for purposes of receiving alimony or post-separation support in North Carolina?

ANSWER: North Carolina General Statute §50-16.1A defines a dependent spouse as follows:

"Dependent spouse" means a spouse, whether husband or wife, 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.”

A dependent spouse is entitled to post-separation or alimony based on the parties accustomed standard of living. If each spouse has an income sufficient to avoid the need for public assistance, the dependent spouse may still be entitled to spousal support based on the accustomed standard of living in the marriage. The relative incomes of the spouses is the important factor in determining the whether the dependent spouse is in need to maintenance and support. If the dependent spouse has an income that is insufficient to meet the accustomed expenses of the marriage, the supporting spouse is often ordered to make payments of post-separation support and alimony to the dependent spouse. If the dependent spouse has assets, the dependent spouse is not required to deplete those assets before receiving post-separation support or alimony. The amount of alimony and post-separation support is left in the discretion of the court based on a 16 factor analysis.

4. What is the definition of illicit sexual behavior for purposes of alimony in North Carolina?

 ANSWER: "Illicit sexual behavior" means any of the following acts that occur during the marriage and prior to or on the date of separation, as provided for in North Carolina General Statute §50-16.1A(3):

“For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse. “

     For purposes of the definition of illicit sexual behavior, North Carolina General Statute 14-27.1(4) states that the definition of "sexual act" includes cunnilingus, fellatio, analingus, or anal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body.

5. What are the sixteen factors that the court uses in determining the amount and duration of the award of alimony in North Carolina?

ANSWER: The court has discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court may consider all relevant factors. North Carolina General Statute §50-16.3A(b) states that the court shall also consider these sixteen factors:

(1) The marital misconduct of either of the spouses. 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;

(2) The relative earnings and earning capacities of the spouses;

(3) The ages and the physical, mental, and emotional conditions of the spouses;

(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;

(5) The duration of the marriage;

(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;

(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;

(8) The standard of living of the spouses established during the marriage;

(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;

(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

(11) The property brought to the marriage by either spouse;

(12) The contribution of a spouse as homemaker;

(13) The relative needs of the spouses;

(14) The federal, State, and local tax ramifications of the alimony award;

(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.

(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

No single factor is determinative and the court may provide more weight to any factor(s) than any other factor(s).