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FIRM ARTICLES AND PUBLICATIONS

 
 

Manuscript written and presented by Attorney Andrea Morelos at the Advanced Family Law Practice for Paralegals Continuing Paralegal Education Seminar my HalfMoon Seminars (2009): Assisting with Spousal Support Issues
 

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ASSISTING WITH SPOUSAL SUPPORT ISSUES

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INITIAL NOTE                       
 
Throughout this manuscript, the information, issues, and considerations discussed will usually be applicable to both PSS and alimony claims, due to their inherent similarities. But for the most part, the focus will be on alimony claims. 
 
 
 
COMPARING ALIMONY AND POSTSEPARATION SUPPORT

            A.     SIMILARITIES                            

Both postseparation support and alimony claims relate to the notion of spousal support (payment of monies by the supporting spouse to the dependent spouse).  Not surprisingly, the starting point for both claims is the parties’ incomes and expenses.  But looking more closely at the statutory language for each claim as well as how each claim is customarily tried before, and decided by, the court, there are numerous distinctions worth pointing out, some very significant.

           B.     DIFFERENCES - GROUNDS/FACTORS IN DETAIL

In practice, postseparation support (PSS) is generally the less involved, condensed inquiry, often determined solely or mostly by affidavits and the pleadings in some counties.  Even in counties where there are testimonial hearings, they are usually very limited (often no more than an hour for both sides to conduct everything), as there are multiple cases set for the same time.  In short, the court looks at the immediate needs of the dependent spouse after separation and during the initial stages of litigation and looks at whether the supporting spouse has the present ability to pay spousal support without having to tap into assets or resources.

While the PSS and alimony statutes both include a list of factors, some of which are somewhat similar in language and purpose, the lists have notable differences, including how the court treats them.  The factors listed under the PSS statute is relatively short, relates exclusively to the financial aspects of the parties, and appears to be an all inclusive, mandatory list: 

In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering:

 

(1)   the parties' accustomed standard of living;

(2)   the present employment income and other recurring earnings of each party from any source;

(3)   their income‑earning abilities;

(4)   the separate and marital debt service obligations;

(5)   those expenses reasonably necessary to support each of the parties; and

(6)   each party's respective legal obligations to support any other persons.

 

N.C.G.S. §50‑16.2A(b) (emphasis and numbered parentheses added).

The PSS statute also goes on to state that the judge shall consider any marital misconduct by the dependent spouse and accordingly, any marital misconduct by the supporting spouse, in deciding whether to award PSS and if so, the amount. N.C.G.S. §50‑16.2A(d). When no marital misconduct applies, the court’s ultimate determination, after weighing the aforementioned factors, is whether the dependent spouse has adequate resources to meet his or her reasonable needs and that the supporting spouse has the ability to pay.  N.C.G.S. §50‑16.2A(c).  Because of the immediacy of a dependent spouse’s financial needs in a PSS claim, while the list of factors certainly confer discretion to the court, in my experience, the inquiry still seems to be more financially-based and less discretionary than with alimony claims.


The alimony inquiry pertains to the long-term needs of the dependent spouse beyond the lawsuit and therefore the supporting spouse’s present and future ability to pay and resources to meet these needs. As such, the alimony determination is a more in-depth analysis of the parties incomes, expenses, and numerous other factors and in fact, the alimony statute indicates that this is to be an equitable determination, thereby adding to the discretionary nature.  Based on all these reasons, there is often a critical need for extensive discovery and/or fuller evidentiary hearings in order to best assess the issues relevant for an alimony claim.

The alimony statute includes some factors which do not even specifically relate to the finances and incomes of the parties. Also, each factor is only relevant and therefore to be considered by the court if evidence related to such factor is presented.  Finally, there is a catch-all provision (“any other factor relating to the economic circumstances of the parties that the court finds to be just and proper”) which the PSS statute does not have, again adding further to the court’s discretion, along with the explicit equitable charge mentioned above. 
 
                       The FACTORS are as follows:

(1)      The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date‑of‑separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;

(2)      The relative earnings and earning capacities of the spouses;

(3)      The ages and the physical, mental, and emotional conditions of the spouses;

(4)      The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;

(5)      The duration of the marriage;

(6)      The contribution by one spouse to the education, training, or increased earning power of the other spouse;

(7)      The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;

(8)      The standard of living of the spouses established during the marriage;

(9)      The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;

(10)     The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

(11)     The property brought to the marriage by either spouse;

(12)     The contribution of a spouse as homemaker;

(13)     The relative needs of the spouses;

(14)     The federal, State, and local tax ramifications of the alimony award;

(15)     Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper; and

(16)     The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

 

N.C.G.S. §50‑16.3A(b).

 
There is clearly an initial threshold which must be met when pursuing either a PSS or alimony claim (i.e. dependency).  As discussed above, the PSS statute lists several factors that must be weighed before making its ultimate decision, but that it is still mostly a financial inquiry.  And with respect to the alimony determination, there are even more factors and even more discretion.  As such, there are no grounds to PSS or alimony in the sense of automatic entitlement to spousal support.  The only exception is in an alimony claim, after dependency has been proven, if the supporting spouse is found to have engaged in uncondoned illicit sexual behavior prior to the date of separation and that the dependent spouse has not, then the court shall grant an alimony award. N.C.G.S. §50‑16.3A(a). 
 
 

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Manuscript written and presented by Attorney Andrea Morelos at the Advanced Family Law Practice for Paralegals Continuing Paralegal Education Seminar my HalfMoon Seminars (2009)

 

 
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