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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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