The Elements of Post-Separation Support
In order for a party to receive post-separation support, proof of the following is required:
The party seeking post-separation support is a dependant spouse.
To properly find that a party is a dependent spouse, the court must only find that the spouse’s reasonable monthly expenses exceed his or her monthly income and he or she has no other means with which to meet those expenses. However, the dependent spouse does not have to be destitute. Rather, the dependent spouse needs the financial assistance of the other party to maintain the standard of living to which he or she has become accustomed during the last several years prior to the parties’ separation. The burden of proving dependency is on the party requesting spousal support.
The party from whom post-separation support is sought is a supporting spouse.
A supporting spouse is one, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. The definition of supporting spouse is essentially the opposite of the definition of the dependent spouse. As a result, the same standards described above apply.
The dependent spouse does not have the resources to meet his or her needs.
The court will examine the financial wherewithal of the party claiming dependency, compare it to the standard of living of the marriage prior to separation, and determine if the party can meet his or her needs without assistance. The actual amount of support, if ordered, will be determined in part by the shortfall of the dependent spouse between his or her sources of income and reasonable needs.
The supporting spouse has the ability to pay post-separation support to the dependent spouse.
This final component is crucial to a court’s granting of post-separation support. The other elements may be present, but, if the supporting party is unable to pay the support needed by the dependent spouse, there can be no award of post-separation support.
To properly find that a party is a dependent spouse, the court must only find that the spouse’s reasonable monthly expenses exceed his or her monthly income and he or she has no other means with which to meet those expenses. However, the dependent spouse does not have to be destitute. Rather, the dependent spouse needs the financial assistance of the other party to maintain the standard of living to which he or she has become accustomed during the last several years prior to the parties’ separation. The burden of proving dependency is on the party requesting spousal support.
Marital Misconduct and Other Considerations
- Illicit sexual behavior:
Illicit sexual behavior is defined in North Carolina General Statute 14-27.1(4) as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts voluntarily engaged in by a spouse with someone other than the other spouse. - Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought:
This misconduct typically comes about as the result of a spouse being jailed or imprisoned for a criminal action. - Abandonment of the other spouse:
Our state courts of review have defined abandonment as the act of one spouse bringing the cohabitation of the parties to an end without justification, without the consent of the other spouse, and without intent of renewing it. However, it is not necessary for one spouse to leave the other in order for abandonment to occur. Rather, by cruelly treating one’s spouse or refusing to provide support for one’s spouse, one’s conduct may compel the aggrieved spouse to leave the relationship. The aggrieved spouse would still be entitled under our law to claim the mistreating spouse had committed constructive abandonment. Although there is no bright line test for what constitutes constructive abandonment, generally the court considers all of the facts and circumstances of the case to ask whether the withdrawing spouse was justified in leaving. The conduct of the spouse engaged in the constructive abandonment must be willful and make it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect. Finally, mutual agreement to separate cannot typically be alleged as abandonment. The only exception is when a spouse is induced to agree to the separation because of the misconduct of the other spouse. - Malicious turning out-of-doors of the other spouse:
An example would involve a spouse leaving the marital residence and attempting to return only to find that the other spouse had changed the locks. - Cruel or barbarous treatment endangering the life of the other spouse:
The intentional and malicious infliction of mental and physical suffering on someone. - Indignities rendering the condition of the other spouse intolerable and life burdensome:
Indignities is the catch-all term for embarrassing, humiliating, and generally treating the other spouse poorly. The harsh words in an argument or the refusal to assist in the marriage are potential examples of indignities. Each case is different and the court must consider the facts and circumstances surrounding the alleged conduct, as well as the overall way of life of the couple. In every case, the behavior must have been intentional and willful or at least consciously by the party committing the acts of indignities. In order to render someone’s condition intolerable and life burdensome, you must prove the behavior occurred on more than one occasion. - Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets:
Generally, the person guilty of reckless spending is someone who spends money profusely and improvidently. The court must look to the standard of living of the parties to determine whether the spending was reckless. If a spouse has a quick temper and destroys property when angry or intoxicated, this constitutes destruction and waste of assets. Sometimes simple negligence may be enough. For example, a spouse’s failure to perform routine maintenance to the residence may cause destruction or waste of the assets. In addition, if one spouse wastes marital funds on drugs, gambling, or an extramarital affair, the innocent spouse could present evidence on such acts at an alimony hearing. Finally, this misconduct ground applies to spouses who attempt to hide or divert assets. If the innocent spouse can show the other spouse transferred property into a relative or friend’s name in order to hide the asset, the court may consider this a very significant marital misconduct ground. - Excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome:
The actual requirement is that the party becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome. As with the other fault grounds, each case will be decided by its own facts. Good indications of excessive use may include receipts from the purchase of alcohol on a regular basis, witness testimony, criminal records, medical records, and participation in support groups for alcohol and drug abuse. - 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:
This occurs when one spouse severely restricts the other spouse’s access to marital money such that it has a significant negative impact on the innocent spouse’s well-being and standard of living.
- Cohabitation is an absolute bar to post-separation support and alimony claims
- If the issue is being litigated, the amount of the post-separation support or alimony award is in the complete discretion of the trial judge
- Post-separation support and alimony can terminate at the earlier of the following:
- Date set by the court
- Date of death of either party
- Date of remarriage of the dependent spouse
- Date of beginning of cohabitation by dependent spouse
- Post-separation support or alimony awards may also include medical insurance coverage for the dependent spouse
- Post-separation support or alimony awards are taxable to the party receiving it and tax deductible to the party paying it
