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Alimony & Post-Separation Support

One of the least well understood aspects of family law is alimony.  The obligation of one spouse to pay alimony to the other is based on the concept of “dependency.”  An alimony obligation is no longer related to marital fault such as abandonment or adultery.  If one spouse is “dependent” on the other’s income in order to meet his or her standard of living as existed on the date of separation, he or she is – generally speaking – entitled to alimony.  The party paying alimony is considered to be the “supporting spouse” and the party receiving alimony is considered to be the “dependent spouse.”  The supporting spouse’s obligation to pay alimony begins on the day of separation.  If the supporting spouse refuses to pay the dependent spouse alimony, the dependent spouse may file a lawsuit seeking “post-separation support,” which is temporary alimony that will be paid until a final agreement or award of alimony is made.  The dependent spouse may also seek to recover attorneys’ fees to help “level the playing field” in having to sue to recover alimony.

Whereas many judges have come to common understandings about what is best for children in terms of child custody, judges’ views about alimony tend to be more varied.  The two biggest considerations in reaching alimony agreements or litigating over alimony are (1) the amount to be paid and (2) the duration alimony will be paid.  The amount to be paid depends principally on the imbalance in the spouses’ incomes.  A dependent spouse who does not work will generally be entitled to larger alimony payments, all things being equal, than a dependent spouse who does work.  The longer the marriage, all things being equal, the longer the obligation the supporting spouse will be required to pay alimony to the dependent spouse.  Judges look at a wide variety of factors when making these determinations and have enormous discretion in rendering their decisions.  In Wake County, both spouses are required to complete a Financial Affidavit, which establishes their income levels and expenses, both on the date of separation, and prior to any hearing setting an amount of post-separation support or alimony.  At a hearing on post-separation support, these affidavits will play an important role in the judge’s decision-making.

As of January 1, 2019, alimony payments are no longer tax deductible to the spouse paying them, and do not generate taxable income to the spouse receiving them.   Like child custody and child support, alimony may be modified based on changes in circumstances, such as the loss of a job or the substantial reduction in income, unless an alimony agreement specifies otherwise.  The supporting spouse’s obligation to pay alimony to the dependent spouse ceases upon the dependent spouse’s remarriage or cohabitation.

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