Fayetteville Pss/Alimony Lawyer
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INTRODUCTION
Practicing family law has taught me firsthand the complexity and stress clients often experience when navigating post-separation support and alimony laws in North Carolina. It can feel like an overwhelming journey, but please remember: You are not alone, and Gary Britt Law is here to help!
Here on my website, I hope to provide some information to help untangle these complexities for you. I want to give you clear and concise introduction to help you understand your rights, responsibilities, and possible choices.
In North Carolina, post-separation support and alimony are financial aids provided to a dependent spouse after separation or divorce. If you have been heavily reliant on your spouse’s income for support, you could be eligible for these types of spousal support to assist you going forward.
Post-separation support (often referred to as “PSS”) can be provided as soon as you and your spouse are living separately, and as the name implies, it is a temporary measure, and it generally ends upon the expiration of a set period set by the court or the final determination of alimony.
Alimony is a long term means of spousal support that begins after post separation support ends – often immediately thereafter – with the goal of providing the dependent spouse with monetary means to meet financial needs. Alimony can be set for a specific period or be ordered to last for the remainder of life. Remarriage or cohabitation in a romantic relationship ends one’s ability to receive alimony, as do the death of the payor / supporting spouse or dependent spouse, or the expiration of time when alimony is supposed to last for a specific amount of time.
The amount and duration of support can widely differ, influenced by factors such as your financial needs, your spouse’s capacity to provide support, the length of your marriage, and the standard of living you had during your marriage, among others.
Understanding these elements can seem daunting, and that is why you need an attorney who understands family law and practices family law. At Gary Britt Law, my purpose is to provide the assistance and guidance you need to the best of my ability.
Throughout my career, my practice has always served our military communities in North Carolina, and I understand how the unique income issues along with the specific rules and regulations governing servicemembers can affect spousal support when I am consulting with or representing someone who is in the military, is married to a current or former servicemember, or is retired from the military. I can help explain the process to you and explain how these issues affect you and your case.
Whether you are at the start of this journey or not, I hope I can help to better inform you about North Carolina’s spousal support laws, and I hope you reach out to schedule a consultation so that we can discuss the issues specific to your case and allow me the opportunity to explain how I can help and protect you and your interests.
WHAT IS POST SEPARATION SUPPORT (“PSS”)?
Post separation support is a type of temporary financial support that can be awarded after separating from my spouse or partner. The purpose of PSS is to help me meet my reasonable financial needs while the divorce or separation process is ongoing. The court will consider factors such as income, expenses, and financial obligations, as well as the standard of living during the marriage or relationship, the duration of the marriage or relationship, age and health, and contributions to the marriage or relationship, and if a party alleges any marital misconduct or fault, that can be considered as well. Then based on these factors, the court will determine if a spouse is supporting or dependent, if PSS is needed, if the supporting spouse can pay PSS, if the dependent spouse is entitled to PSS, and what amount of PSS that is reasonable and necessary to meet the spouse’s financial needs during this time.
Unlike alimony, there are no specific bars to a dependent spouse receiving PSS, but if the Court determines that if a spouse is not entitled to alimony, that spouse will not be entitled to PSS, thus extinguishing any PSS claim the spouse may have had.
WHAT IS ALIMONY?
Like PSS, alimony is a type of financial support that can be awarded to a dependent. Alimony is typically awarded after the divorce or after all financial claims / issues have been finalized at trial or by agreement/settlement as provided by law. The purpose of alimony is to provide ongoing financial support to financially dependent spouses for what is generally a longer period. The length is often determined by the parties’ respective ages, length of marriage, finances, education and work histories, and financial roles during the marriage and conduct. In determining the amount, the court will consider factors such as income, expenses, financial obligations, standard of living during the marriage, the duration of the marriage, age and health, my contributions to the marriage, and any marital misconduct or fault. The Court will also examine evidence presented in support of any claims of Marital misconduct to determine how that affects the respective parties’ ability to receive alimony or amount of alimony to be paid. Alimony can be set for a specific, limited period or for the remainder of one’s life.
While Marital misconduct by the dependent (party receiving alimony) spouse can limit the amount or duration of alimony, if the supporting (paying) spouse can prove the dependent spouse has committed adultery and the supporting party has not committed adultery, then the dependent spouse is not entitled to receive alimony. If both parties committed adultery, the court would weigh the evidence to determine if the dependent spouse should receive alimony.
Based on these factors, the court will determine an amount and duration of alimony that is reasonable and necessary to provide ongoing financial support to me.
Alimony ends when a specific amount of time has elapsed if the Court limited alimony to a specific length of time, the dependent spouse (i.e. the party receiving alimony) cohabitates with a romantic partner or remarries, or if the supporting (paying) or dependent (receiving) spouse dies.
HOW DO DIFFERENT DISTRICTS HANDLE POST SEPARATION SUPPORT AND ALIMONY?
It is important to note that different districts in North Carolina may have different rules and procedures when it comes to handling post separation support and alimony. Some districts may require the parties to attend mediation before a hearing can be scheduled. Additionally, some districts may have require live testimony for PSS hearings whereas some districts only use affidavits for those hearings. Furthermore, each district almost always has different rules or traditions when it comes to calendaring cases for hearing.
To ensure that your case is handled properly, it is important to have an attorney who is familiar with the local rules and procedures in the district where your case is to be heard.
HOW IS INCOME DETERMINED / CALCULATED FOR ALIMONY AND PSS?
While North Carolina uses the amount of each spouse’s disposable income (the amount after the deduction of taxes and reasonable expenses) to determine whether someone can pay Post Separation Support or Alimony or is in need of PSS or Alimony, to determine that amount, one must first determine what the actual gross income is.
It’s crucial to have a understanding of this process, as it forms the foundation for various aspects of spousal support, most notably for child support.
In North Carolina, calculating gross income for family law purposes involves considering various sources of income and determining their value. The goal is to arrive at an accurate representation of a person’s earning capacity and financial resources.
EMPLOYMENT INCOME
Employment income forms a significant part of gross income. This includes wages, salaries, bonuses, commissions, and tips. It encompasses all sources of income derived from employment, regardless of whether it’s regular or irregular. To determine employment income, the Court will consider the individual’s salary or wage rate, hours worked, and any additional compensation received.
SELF-EMPLOYMENT INCOME
If someone is self-employed, gross income is calculated by examining the revenue generated by the person’s business or profession. This can include income from freelancing, consulting, or running one’s own business. It is important to consider all forms of self-employment income, including sales, services rendered, and any other payments received.
RENTAL INCOME
If someone owns rental properties, the income generated from those properties is included in a gross income calculation. This includes rent payments received from tenants, as well as any additional income from rental-related activities such as parking fees or laundry services.
INVESTMENT INCOME
Investment income is earnings from stocks, bonds, mutual funds, and other investments. This can include dividends, interest payments, capital gains, and other forms of income generated through investment activities. It’s crucial to consider the income earned from all investments, including taxable and tax-exempt accounts.
RETIREMENT INCOME
Retirement income, such as pensions, annuities, and Social Security benefits, is also included in the gross income calculation. This ensures that all sources of income, whether active or passive, are considered when determining a person’s financial resources. It’s important to take into account the gross amount received from these retirement sources.
OTHER SOURCES OF INCOME
There may be additional sources of income that need to be considered for the gross income calculation. These can include income from royalties, trusts, partnerships, and any other form of financial support or compensation, such as fringe benefits or even assistance or gifts given to someone by friends and family. It is crucial to provide a comprehensive overview of all income sources to accurately determine gross income.
OTHER CONSIDERATIONS
It’s worth noting that gross income calculations for family law purposes do not include certain deductions or adjustments that are considered when calculating net income. The focus is on identifying the total value of income sources, without factoring in expenses or taxes. Net income calculations, on the other hand, involve subtracting allowable deductions from gross income.
Understanding how gross income is calculated is essential, as it forms the basis for determining child support, post-separation support, and alimony payments. Family law courts in North Carolina use these calculations to ensure fair and equitable financial arrangements between parties.
When it comes to child support, the courts use a formula based on the income shares model. This model takes into account both parents’ gross incomes to determine the appropriate amount of support that should be paid. It considers the number of children involved and uses specific guidelines to arrive at the child support obligation.
IMPUTING INCOME
In cases where one parent has a significantly higher income or earning capacity than the other, imputed income may come into play. Imputed income is a concept used to assign income to a parent who is not currently earning or utilizing their full earning potential. The court may impute income if it determines that a parent is voluntarily unemployed or underemployed, or if there is evidence that the parent could earn more by making reasonable efforts.
Imputing income involves assessing various factors, such as the parent’s education, work experience, and job opportunities in the local job market. The court may also consider the parent’s past employment history and earning potential based on their qualifications and skills. Ultimately, the goal is to ensure a fair assessment of a parent’s financial capacity and to prevent individuals from intentionally reducing their income to avoid their financial responsibilities.
It is important to note that imputed income calculations should be approached with care and supported by substantial evidence. An experienced family law attorney can guide you through the imputation process and help ensure that the calculations accurately reflect the circumstances and earning capacity of each parent.
Post-separation support and alimony calculations also take gross income into account. North Carolina law outlines specific factors that must be considered when determining the amount and duration of these payments, and earning capacity can be used to determine a party’s support obligation just like with child support.
WHAT FACTORS ARE USED TO DETERMINE THE AMOUNT OF SPOUSAL SUPPORT?
FINANCIAL FACTORS FOR DETERMINING POST SEPARATION SUPPORT
N.C. Gen. Stat. § 50-16.2A provides the general framework for PSS claims. Subsection (b) states that
“…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.”
Present Income
The Court will examine each parties’ income and look at all sources as described previously. This is necessary to understand how much one can afford to pay or needs for support purposes.
Income-Earning Abilities
People often attempt to lower or depress their incomes to lower or avoid support obligations or in turn receive more support. To be equitable to both parties, the Court can assign someone’s income as being higher than the listed amount when the Court is able to find that a person has the reasonable ability to earn more.
The Separate and Marital Debt Service Obligations
The amount of money someone is paying towards the parties’ marital debts or separate debts can be – and is often – used when determining the ability to pay PSS or Alimony or how much PSS or Alimony a person needs. When examining this factor, the Court will look into the reasonableness of the debt and amount paid.
Reasonable Expenses
For PSS and Alimony purposes, when determining the ability to pay or the need for support, the Court will examine the parties’ monthly expenses in light of their accustomed standard of living to determine reasonableness.
Any Other Legal Support Obligation
A party’s legal obligation to pay child support or spousal support to another party is included in determining the amount of post separation support or alimony just like any other reasonable expenses, and the amount of child support paid between the parties is also considered. This allows the Court to understand the true nature of the parties’ respective disposable income.
MARITAL MISCONDUCT
Use in Post-Separation Support
Marital misconduct can be used in determining the amount of PSS, but it is not automatically considered. Marital misconduct is only used if the supporting spouse brings up allegations against the dependent spouse seeking support. If the supporting spouse brings up Marital misconduct, only then can the dependent spouse discuss allegations of fault by the supporting spouse.
Use in Alimony
There are no restrictions governing allegations of misconduct in alimony cases. Either party can bring up allegations of fault / wrongdoing at trial at their own discretion.
Types of Marital Misconduct
For alimony and post separation support purposes, N.C. Gen. Stat. § 50-16.1A(3) sets a list of acts that constitute marital misconduct. The statute does not give specific definitions for most of these acts of misconduct in an effort to allow the Court the ability to determine facts on a case-by-case nature.
Illicit sexual behavior
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. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.
In short, this is adultery, and if a spouse commits adultery, then that is considered marital misconduct.
Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.
If the parties are separated because of a spouse’s criminal conduct resulting in imprisonment prior to the claim for alimony being filed, that is marital misconduct.
Abandonment of the other spouse.
If a spouse abandons the marital home and leaves the other spouse without legal justification, that is abandonment and is considered marital misconduct.
Malicious turning out-of-doors of the other spouse.
If a spouse forces another spouse out of the home, prevents the other spouse from returning and does so without justification, that is marital misconduct.
Cruel or barbarous treatment endangering the life of the other spouse.
This is fairly self explanatory. If a spouse harms or endangers the life of another spouse in a cruel or barbarous manner, that is marital misconduct.
Indignities rendering the condition of the other spouse intolerable and life burdensome.
The Courts state that this is decided by the factors of each individual case, but the course of conduct must be acts exhibiting a “settled hate and estrangement” from one spouse to another spouse.
Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets.
These acts are self-explanatory on their face, but the Court must examine the facts of each case to determine if the alleged conduct constitute this type of marital misconduct.
Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
If one spouse’s substance abuse is so severe that it negatively affects the life of the other spouse in a marked manner, the Court can find that the substance abuse rises to this level.
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.
When a spouse has the ability to provide for another spouse but refuses to do so in an effort to intentionally deprive the dependent spouse, then this type of marital misconduct has occurred.
COHABITATION
If the dependent spouse lives with a romantic partner, the dependent spouse will be considered to be engaging in cohabitation if the following can be proven:
- The dependent spouse and romantic partner must be dwelling / living together continuously and habitually. There must be a relationship of a significant duration and regularity with the two residing together the majority of the time.
- Not only must the two be living together, but one must show that the two have mutually assumed marital rights, duties and obligations. In short, the two must be engaged in the upkeep and maintenance of the home and sharing bills, responsibilities and chores related to the home the two share.
MODIFICATION
For post separation support, the supporting / paying spouse can move the Court to modify the amount at any time prior to the final determination of alimony by showing a change in circumstances, cohabitation or any other relevant factor.
For alimony, the supporting / paying spouse can move the Court to modify a court order awarding alimony if certain circumstances are met. The parties cannot relitigate the issue of alimony, but if one party can show changed circumstances affecting a party, the Court can terminate, vacate or modify the alimony order. If the parties have resumed the marital relationship, the dependent spouse has remarried, or it can be proven the dependent spouse has cohabitated, the Court will terminate the duty to pay alimony. If a party’s financial circumstances / income has changed through no fault of that party, that could constitute a changed circumstance necessitating modification.