Post Separation Support

Effective October 1, 1995 for actions filed on or after that date, Post Separation Support laws in this State have changed. How much this law change matters is really yet to be seen and depends on the facts of your case and how the judges interpret the law.

North Carolina no longer has temporary Alimony, but has changed the terminology to Post Separation Support.

The court is instructed to award Post Separation Support based upon the following:

• Financial needs of the parties;
• Accustomed standard of living;
• Present employment income and other recurring earnings of each party from any source;
• Earning abilities of both spouses;
• Separate and marital debt service obligations;
• Necessary living expenses of both parties;
• Each person's respective legal obligations to support any other person;
• Pre-separation marital misconduct of both parties.
• Post Separation support is recoverable in North Carolina only to the dependant spouse and only paid by the supporting spouse.

Marital Misconduct means any of the following acts that occur during the marriage and prior to or on the date of separation:

1. Illicit sexual behavior, which includes acts of sexual or deviant sexual intercourse, deviant sexual acts, or sexual acts voluntarily engaged in with someone other than the other spouse;
2. Causing an involuntary separation in consequence of a criminal act;
3. Abandoning the other spouse;
4. Maliciously turning the other spouse out of doors;
5. Cruel and barbaric treatment endangering the life of the other spouse;
6. Indignities rendering the condition of the other spouse intolerable and life burdensome;
7. Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets;
8. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
9. 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.

Modification/Termination of Alimony and/or Post Separation Support

Alimony or Post Separation Support can be modified or terminated by the court upon a showing of changed circumstances.

Alimony or Post Separation Support terminate:

• Upon the death of either party
• Upon the remarriage of recipient spouse
• Upon cohabitation of the recipient spouse

What is cohabitation? The act of two adults dwelling together continuously and habitually in a private heterosexual or homosexual relationship.

Evidence includes:

Voluntary mutual assumption of those marital rights, duties and obligations which are usually manifested by married people and which include, but are not necessarily dependant on, sexual relations.

Your case for Alimony or Post Separation Support must be pending in court prior to your absolute divorce.

The divorce does not automatically terminate the Alimony or Post Separation award already in place.

When parties file separate tax returns and reside in separate households, Alimony payments in cash to or for the benefit of the recipient spouse will be considered taxable income to the dependant spouse and a deduction to the supporting spouse. Ask about the "designated payments rule" when you desire another result.

If there is a court order for Alimony or Post Separation Support, current IRS policy in our district requires you to file single or head of household. (This does not apply to private agreements outside of court.)

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