Alimony, Post Separation Support & Spousal Support

Alimony, Post Separation Support and Spousal Support Lawyers

One typical claim between separating spouses is for post separation support and alimony.  Both post separation support and alimony are forms of spousal support.  Spousal support is the payment from one spouse to the other of money (or paying certain obligations for the benefit of the other spouse.  Such orders can be temporary (during the pendency of a case) or permanent.  “Permanent” order can require the payment of support indefinitely or for a set period of time.

Terms for spousal support can vary from state to state.  In North Carolina, the application of the laws regarding spousal support can vary from region to region, district to district or even judge to judge.  A judge in Asheville may award significantly more alimony in a case as opposed to a judge in Hendersonville who hears the same case.  A particular judge in Hendersonville may award alimony at a lower amount but for a much longer term than his or her fellow judges, whether they are in Asheville or Hendersonville or somewhere else in Western North Carolina.  The variability in post separation support and alimony awards make resolving these claims challenging.

The problem is not necessarily a particular judge that might have your case or what county or judicial district your case is in.  The primary problem it is that the laws regarding alimony and post separation in North Carolina offer little guidance on how much support to award and for how long. The laws allow for a large amount of discretion by the courts in terms of the amount and duration of any order of support.  This, unsurprisingly, leads to different spousal support awards being made in cases that are very similar factually.   In North Carolina, there are no “guidelines” for alimony as there are in child support cases.  Each award or denial of alimony is made based on the facts and finances of an individual case.

While awards of post separation support and alimony vary widely, here is some basic information about each form of spousal support:

What Is Alimony?

Alimony, a form of spousal support, refers to court-ordered or agreed upon payments awarded to a spouse or former spouse within a separation or divorce. The purpose of alimony is to provide financial support to the spouse in need. Alimony payments can be made either periodically or in a lump sum. In determining alimony, the court will take into account each party’s income, expenses, and a number of other factors including, but not limited to:

• The parties’ standard of living during the marriage
• The employment income and other earnings and potential income and earnings
• Each party’s reasonable expenses

In addition to the economic factors related to the parties, the court can and in fact must consider some of the behaviors of the parties in making an award of alimony.  The most impactful non-economic factor the court MUST consider in an alimony claim is whether the person seeking alimony (the “dependent” spouse), committed marital misconduct in the form of infidelity.  Such marital misconduct is a COMPLETE BAR to any claim for alimony.  If it is proven that the dependent spouse engaged in such misconduct and that the “providing” spouse did not engage in this conduct, then the court cannot make any alimony award.  If it is proven that the providing spouse committed martial misconduct in the form of infidelity and that the dependent spouse did not, then the court MUST award alimony.  However, in making a mandatory award of alimony, there is no requirement that the award be in a certain amount nor run for a specific period of time.

Not all marital misconduct can be the basis for granting or denying alimony.  If you or your spouse committed marital misconduct in the form of infidelity, that infidelity is not a reason to grant or deny alimony if that misconduct has been condoned by the other party.  For the purposes of spousal support, “condoned” means that once one party learned of the misconduct of the other party, the relationship continued and the parties continued to live and act as a married couple.  So, if your partner cheated and you find out and you continue to live as a married couple for a period of time, that cheating is not a mandatory basis for ordering or denying spousal support.  Of course, the same holds true if explicit permission was given prior to engaging in the misconduct.

How is Post Separation Support different from Alimony?

Post Separation Support (known as “PSS”), is similar to alimony in that it is an award of money or other support from one party to the other.  However, PSS is different in that it is awarded early in the parties’ separation, and that martial misconduct is a factor for the court to consider, but is not an absolute bar to an award of PSS.  Awards for PSS usually run from the time the parties separated to the time that the issue of alimony is heard and decided or until an absolute divorce is entered.  There are other differences between the two kinds of support that one of the experienced family law attorneys at Blue Ridge Family Law Group can explain if such differences are applicable to your case.

Tax Treatment of Spousal Support Payments

In years past, the payment of alimony or post separation support was a tax deduction to the spouse paying support and income to the party receiving the support.  Due to tax law changes occurring in 2019, all spousal support payments are not a deduction for the person paying support, and is not “income” for tax purposes to the person receiving support.  So, the payor of alimony has to pay the taxes on the money and the person receiving the support does not have any tax liability when receiving such support.

Frequent Issues in Spousal Support Cases

The family law attorneys at Blue Ridge Family Law Group routinely deal with alimony and post separation support claims.  We see some common issues in cases, such as:

1. Parties with non-traditional income manipulating their income once a support claim is evident.
2. Small business owners and professionals attempting to hide money in their business to defeat an alimony claim.
3. Small business owners treating their business as a personal bank account and then claiming everything is a business expense.
4. Parties seeking alimony inflating their expenses or need in order to better pursue a claim for spousal support.
5. Parties failing to report investment accounts or other accounts that generate taxable income.
6. Parties who deal in cash under reporting their income on both their taxes and in the court case.
7. Parties engaging in a variety of behaviors in an effort to hide their true income.
8. Parties misrepresenting their expenses.

Our Family Lawyers Can Help with Spousal Support Claims

Because our family law attorneys have seen these issues time and time again, we know many of the signs of such issues and how to address them.  Using a host of tools such as CPAs, discovery requests and subpoenas, we frequently investigate a party’s finances in a support case to help determine the reality of the parties’ finances in order to get an award based on what is really happening, and not rely on what a party claims during litigation.

Even when we can get to the bottom of the financials and the facts, resolving alimony often requires negotiations and compromise.  As explained above, a judge has a lot of discretion in awarding alimony and post separation support, so many parties choose to remove the risk and expense of a hearing and work to come to an agreement on post separation support or alimony.  Our attorneys rely on their experience in assisting our clients resolve these issues through direct negotiations and well drafted agreements and orders.

Spousal Support claims are sometimes critical to the survival of one party and often time can be a major factor.  Many parties need support immediately when they are separating from another party.  The attorneys at Blue Ridge Family Law Group are equipped to move quickly to pursue support claims when appropriate.  We likewise have the ability to quickly investigate and defend against such claims when they are not warranted.  Serving Asheville, Hendersonville and most of Western North Carolina, we can help you with your case and utilize our local knowledge and experience in assisting you with your case.