Category: Alimony

Spousal Support, Part 1: What is PSS?

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.

Jim successfully defends orders on appeal

Jim Siemens, Court of Appeals

Jim Siemens presenting his argument before the Court of Appeals in October.

The NC Court of Appeals published its opinion this week on a case Jim argued before a special session of the Court in October.  Jim was successful in defending equitable distribution, alimony and child support orders entered in Buncombe County last year.  The Defendant-Appellant raised fourteen issues on appeal.  All but one of which were ruled to be without merit.  The equitable distribution and child support orders were affirmed in full, and the alimony order was remanded in part for additional findings on the parties’ expenses.

Judge Valerie Zachary wrote the opinion for this case, and Judge Calabria and Chief Judge McGee concurred.  The Court of Appeals upheld the trial court’s adoption of most of the Plaintiff’s proposed findings and conclusions, as well as acceptance of the Plaintiff’s witness as an expert in accounting, and the application of the terms of the parties’ premarital agreement.  The trial court’s classification, valuation and distribution of assets in its equitable distribution order were also upheld.

The Court of Appeals specifically upheld the trial court’s use of a coverture fraction to value the marital portion of a TSP and subsequently funded IRA and annuity in the equitable distribution order.  The use of the coverture fraction in the context of N.C. Gen. Stat § 50-20.1 and Watkins v. Watkins* was supported by Jim in his brief, and seemed to be of particular interest to the panel during his oral argument before the Court.

The opinion stated in summary, “the trial court’s alimony order must be reversed and remanded for entry of additional findings concerning the parties’ expenses.  We conclude that the trial court did not otherwise err and that in all other respects, its equitable distribution, child support and alimony orders should be affirmed.”

The full published opinion on Kabasan v. Kabasan (COA 17-254) is embedded below, and can be found on the N.C. Appellate Courts website.

*Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013).

Jim Siemens Argues Before Court of Appeals in Sparta, NC

Court of Appeals

Jim Siemens presenting his argument before Judge Zachary, Chief Judge McGee and Judge Calabria.

Jim Siemens traveled last week to the mountain town of Sparta, North Carolina to present an oral argument before the Court of Appeals. The argument was part of a special session celebrating the 50th anniversary of the NC Court of Appeals, holding a session of court in a hometown or county with a special connection for each judge. Jim’s case followed a criminal case from Watauga County, and the session drew a small crowd from the Sparta community.

Jim appeared before Chief Judge Linda McGee, Judge Valerie Zachary and Judge Ann Marie Calabria in the Alleghany County Courthouse. He argued in support of three orders on the issues of equitable distribution, alimony and child support. All three orders were drafted by Jim and entered last year by the district court judge presiding in Buncombe County, and are now challenged on appeal by the Defendant.

Jim defended his positions on valuing marital assets including retirement accounts and real property; the use of date of distribution exchange rates to value Brazilian real property; the application of the terms of the parties’ premarital agreement for an equal division of the marital estate; and determining the Plaintiff’s status as a dependent spouse for establishing terms of alimony.

The Court was particularly interested in the issue of valuing the marital portion of a Thrift Savings Plan and subsequently funded IRA and annuity in the equitable distribution trial. Jim gave further support for his argument pertaining to valuing deferred compensation using a coverture fraction in the context of N.C. Gen. Stat. § 50-20.1 and Watkins v. Watkins.*

After Jim’s strong argument before the panel, he now waits for a decision from the Court. More information about the judges on the panel and the Court of Appeals of North Carolina can be found on nccourts.org. More information about the special session can be found on the Twitter page for the NC Judicial Branch.

*Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013).

Jim Siemens, Court of Appeals

Jim arguing before the N.C. Court of Appeals. Photo by Chris Mears/NC Judicial Branch.

Alleghany County Courthouse

Alleghany County Courthouse in Sparta, N.C. Photo by Chris Mears/NC Judicial Branch.

 

 

 

 

 

 

Jim Siemens, Court of Appeals

Jim answering questions from the panel.    Photo by Chris Mears/NC Judicial Branch.

Court of Appeals

Judge Calabria, Judge McGee and Judge Zachary. Photo by Chris Mears/NC Judicial Branch.

 

 

Representing the Dependent Spouse

Jim Siemens and Brenda Coppede recently presented at the North Carolina Bar Association’s Family Law Section Annual Meeting in Charleston.  Jim and Brenda’s CLE topic was Representing the Dependent Spouse, and you can take a look at their presentation materials below.

 

Continuing Education: Alimony Modification

At some point in your professional career, you need to step forward and offer to give back to your colleagues and your profession.  Lots of good lawyers care about the quality of their work, their practice areas, and the law and policy that affect their clients.  Leaders of the North Carolina Bar Association Family Law Section put those best intentions into action.  Year after year, they present the best continuing legal education to lawyers of all levels of experience.  And, they work to educate the North Carolina General Assembly in an effort to make family law and policy in North Carolina work better for the citizens of the great North State.  I’m humbled to participate in these good efforts this year.  My contribution comes in the form of a presentation on the law of alimony, and in particular, alimony modification.  Here is the manuscript that I will be presenting from next week:

It’s Not Over ‘Til It’s Over

In North Carolina, parties can’t typically appeal decisions of a Trial Court until the Trial Court has addressed all the pending issues.  In the family law context, that means, until the Trial Court has resolved each claim for relief, including claims for attorney fees, it is not time to appeal.  There are exceptions to this rule, but the exceptions are few.

The Court of Appeals has dismissed 2 appeals at our request, because issues remain for the trial court to decide in the case, in the same case!  The first appeal in our case was brought after a favorable ruling by the Trial Court on the date of marriage. (See N.C. Court of Appeals Opinions, 2008 unpublished opinions, Duncan v. Duncan), http://appellate.nccourts.org/opinions/

At the time of this appeal, the Trial Court had not yet ruled on equitable distribution, alimony and attorney fees.  The Court of Appeals dismissed the appeal.

The second appeal came after the equitable distribution trial, and after our client had been awarded alimony, but before her attorney fee claim had been resolved. (See N.C.Court of Appeals Opinions, 2012 Duncan v. Duncan), http://appellate.nccourts.org/opinions/

Again, the Court of Appeals has dismissed the appeal.

We expect a third trip to the Court of Appeals when the issue of attorney fees is resolved, when there will be no remaining issues for the Trial Court to decide.

Are you prepared for a possible “Gray Divorce?”

While browsing the Asheville Citizen-Times website on August 13, 2012, we came across a terrific article by guest columnist Haleh Moddasser about “Gray Divorce.”  Although the article targets older women,  we feel Ms. Moddasser’s article contains important information for all of us,  regardless of gender and whether you may be young, middle-aged or whatever comes after that.  Given that family and financial circumstances can change unexpectedly, be it by death, accident, or divorce, it pays to plan ahead and be informed. Follow the link to learn more:  http://www.CITIZENTIMES.com/apps/pbcs.dll/article?AID=/201208140015/LIVING/308140016

 

 

 

Pay Up or Else: Enforcement of Alimony Orders Through Contempt Proceedings

It is all-too-common for supporting spouses who are ordered to pay alimony to refuse to make these payments, leading to contempt proceedings and a contempt order requiring the supporting spouse to pay or face arrest.

Because contempt orders are immediately appealable, in past decades supporting spouses could use the appeal process to extend their willful refusal to pay.  Nearly thirty years ago, the North Carolina Supreme Court noted this injustice:

Counsel correctly argued that supporting spouses have a lengthy period of virtual immunity from support obligations while cases work their way through the appellate process… We agree …that a more satisfactory answer should be found, but that answer can come only from the Legislature.

Quick v. Quick, 305 N.C. 446, 461-462, 290 S.E.2d 653 (1982).

Three years later, the General Assembly acted on the Supreme Court’s invitation in Quick by passing North Carolina Session Law 1985-482, which provides:

Section 1. G.S. 50-16.7(j) is rewritten to read:

“(j) ….Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the Appellate Division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. …the Court of the Appellate Division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.”

This Act created a new norm for enforcement of alimony judgments during appeal:  contempt proceedings in the trial court continue during the pendency of the appeal, and stays of such proceedings now are the exception.

The North Carolina Court of Appeals recently affirmed this appellate enforcement of alimony through trial court contempt proceedings in Romulus v. Romulus.  The Romulus Court reviewed the Quick opinion and noted that our legislature has found a “more satisfactory answer” by making alimony orders enforceable by contempt pending appeal.

Dependent spouses should aggressively enforce any court-ordered alimony through contempt proceedings.  Supporting spouses should pay up or face the consequences.

Alimony Denied

If you are a dependent spouse who is contemplating separation, North Carolina law sets a clear guideline to preserve your right to alimony:  do not engage in any sexual activity outside the marriage until you are separated.  If you do, or even put yourself in an ambiguous situation, you will damage yourself substantially.

North Carolina law provides that alimony shall not be awarded if the dependent spouse case engaged in “illicit sexual behavior” prior to separation.   N.C. Gen. Stat. §50-16.1A(3)a.     In the recent case of Romulus v. Romulus, the Court of Appeals applied this statute to bar alimony to a dependent spouse who had two ambiguous sexual encounters prior to her separation.

The Romulus boyfriend testified that, on two occasions, he either penetrated the dependent spouse with his finger, or touched her with his penis, but did not have intercourse because he was impotent.

The trial court and the Court of Appeals held that the boyfriend’s testimony established that the dependent spouse had engaged in illicit sexual behavior, and thus was barred from receiving alimony.  Even more, the Court held that, because the testimony established both sexual “inclination” and “opportunity” on her part, the dependent spouse could be presumed to have engaged in sexual intercourse.

Although the dependent spouse’s conduct in Romulus was ambiguous, North Carolina law and the Court’s application of  that law were not.  To preserve the  right to alimony, dependent spouses must not engage in any sexual conduct with outside parties prior to separation, and must avoid situations that could be characterized as demonstrating sexual inclination and opportunity.

Q & A for Paralegals and the Public

From a paralegal continuing legal education seminar presentation by Jim Siemens September 24, 2010:

What is abandonment?  Termination of the marital relationship without justification, without the consent of the other spouse, and without the intent of renewing the marriage.

How is separation defined in North Carolina?  Must be more than discontinuance of sexual relationship and implies living apart such that the community can see that the parties are no longer living together.  One party must have the intent to remain separate and apart.  Even after physical separation, if intent can’t be discerned, the parties may not be separated.

What constitutes reconciliation?  Resumption of the marital relationship.  Isolated incidents of sex post separation are not enough to constitute reconciliation.

What rights do parents have to custody in North Carolina?  Parents have the paramount constitutional right to custody in North Carolina.  There is a grandparent visitation statute but the relief grandparents have is limited and in an intact family, grandparents have no right to seek visitation.  Parents can abrogate their constitutional rights by acting inconsistently with those rights.

What rights do third parties have to custody in North Carolina?  Third parties can seek custody when parents are not available or when the parents have abrogated their constitutional rights by being unfit, or acting inconsistently with their rights as parents.

What discretion does the District Court have over custody decisions in North Carolina?  The Court is guided by the best interest standard which is the polar star of the custody inquiry.  However, before third parties can argue best interest, they must overcome the paramount constitutional rights of parents.

Would marital misconduct be relevant in an equitable distribution trial?  Marital misconduct is not relevant to equitable distribution in North Carolina.  However, the use of marital funds during and after the marriage may be relevant.

Would marital misconduct be relevant in a hearing on post separation support?  Only if the supporting spouse wishes to raise marital misconduct as a defense to paying support.  The supporting spouse controls the inquiry into fault in a post separation support hearing.

Would marital misconduct be relevant in a hearing on alimony?  Yes, and abandonment is a form of marital misconduct.

How are these forms of support determined in North Carolina?  Amount and duration of alimony in North Carolina are discretionary, though the Court is guided by factors listed at NCGS 50-16.3A.  Spousal support is to be determined with consideration of the income and earnings of the supporting spouse, and need of the dependent spouse.

How is child support determined in North Carolina?  Child support guidelines are typically used to determine child support, based upon an income shares model.  Guidelines are expected to change in October of 2011.  There is a growing body of case law suggesting that parties can contract to provide for the reasonable needs of their children.