When spouses separate, it is sometimes necessary for one spouse to provide financial support to the other spouse. North Carolina recognizes two forms of spousal support: one is post-separation support, and the other is alimony.
Post-separation support (which is commonly referred to as “PSS”) is a form of temporary alimony that is usually paid after the parties’ separation, but prior to resolution of the actual alimony claim. The parties may agree on PSS and/or alimony and enter into a separation agreement or written contract, or they may go to court and let a judge make a decision for them.
In determining whether a spouse is in need of PSS, a judge will generally focus primarily on economic factors, such as the incomes, expenses, and earning abilities of the parties, and their respective legal obligations for the support of others. Therefore, PSS may be awarded based upon a relatively brief examination of the parties’ financial conditions, rather than an extensive and in-depth analysis of the parties’ finances and other relevant factors that may be considered in an alimony trial. However, if the judge finds that the dependent spouse committed adultery or engaged in illicit sexual behavior, that finding alone may be sufficient for the judge to deny a claim for post-separation support.
When PSS is paid pursuant to a court order, it will end upon the first to occur of the following:
- the date or circumstances specified in the court’s order;
- when the court awards or denies alimony;
- the dismissal of the alimony claim;
- the entry of the judgment of absolute divorce if no alimony claim is pending at the time the divorce is granted; or
- termination pursuant to the provisions of North Carolina General Statute 50-16.9(b).
How does a judge determine whether a spouse is entitled to receive PSS or alimony?
Before a judge enters an order awarding PSS or alimony, the judge must find that the party seeking spousal support is a “dependent spouse,” and the other party is the “supporting spouse.” In establishing whether one spouse is dependent, a judge must determine that the party seeking PSS or alimony is (1) actually substantially dependent upon the supporting spouse for his or her maintenance and support, OR (2) is substantially in need of maintenance and support from the supporting spouse. Either a husband or wife may be found to be a dependent spouse. After a party has been found to be a dependent spouse, a judge must then determine whether the supporting spouse has the means and ability to pay PSS or alimony.
When a party files a legal action seeking PSS and/or alimony, the local court rules for Buncombe County, North Carolina require that both parties complete a “financial affidavit,” (Form 4 of the local forms).
Both parties to the legal action must file a completed financial affidavit with the court that provides a detailed breakdown of their monthly expenses and income, as well as other financial information. The financial affidavit provides the court with a basis for determining the amount of PSS or alimony that a dependent spouse is seeking, and the amount of PSS or alimony that a supporting spouse can afford to pay. In the near future we will dedicate an article to explaining the importance of preparing and filing a detailed and accurate financial affidavit.
Check back next week for Spousal Support, Part 2: Awarding Alimony, to learn about how the amount and duration of alimony is determined, and other factors considered in awarding spousal support.
This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.