How is Alimony Determined?


One of the most contentious issues couples might face when divorcing is alimony. Also known as spousal maintenance or spousal support, alimony is paid by the higher-earning spouse to the financially dependent spouse. Although it may seem like a straightforward concept, there are many factors a court will consider in determining an alimony award — including the needs of the dependent spouse and the supporting spouse’s ability to pay.

How Does Alimony Work?

In North Carolina, there are two types of spousal maintenance: post-separation support and alimony that is awarded after the divorce has been finalized. Alimony can be decided between the parties outside of court, or if the parties cannot reach an agreement, a judge can determine the outcome.

There are several different options spouses can consider when it comes to making payments. In accordance with the statute, alimony can be paid in a single lump sum, monthly, or quarterly. It can also be paid by an income withholding order, by transferring title or possession of personal property, or by transferring a security interest in or possession of real property. Depending on the facts of the case, alimony may be paid for a specified duration of time or indefinitely.

It’s essential to be aware that there are also tax implications concerning alimony. As a result of the Tax Cuts and Jobs Act, the supporting spouse can no longer deduct alimony payments on their taxes, and it is not considered taxable income for the recipient spouse. This law went into effect on January 1, 2019 and applies to any agreement executed after December 31, 2018.

Post-Separation Support in North Carolina

Post-separation support may be granted to a financially dependent spouse while divorce proceedings are ongoing. An order for post-separation support terminates once the court makes a determination. A judge will look at several factors under North Carolina General Statute § 50-16.2A in deciding whether to grant this type of support, including:

  • The financial needs of each spouse
  • The ability of each spouse to earn income
  • Present employment and recurring earnings
  • The necessary expenses incurred by each spouse
  • Separate and marital debt obligations
  • The standard of living during the marriage
  • Each party’s legal obligation to support another person

The financial resources of the dependent spouse and the supporting spouse’s ability to make payments will also be evaluated by the court. Although the court’s primary focus is on the financial needs of the parties at a hearing for post-spousal support, marital misconduct may be considered in some cases. However, marital misconduct of the supporting spouse is only considered if they opened the door to the issue by raising evidence concerning the dependent spouse’s marital misconduct.

Factors in Determining Award of Spousal Support

There is no set formula in North Carolina that determines the amount or duration of alimony awarded to a financially dependent spouse. There is also not a requirement that it is granted at all. Alimony is based on the specific facts and circumstances of a case. Critically, there are a number of factors that will guide a North Carolina court’s alimony decision.

Under North Carolina General Statute § 50-16.3A, the following factors are considered in determining an award of alimony:

  • Marital misconduct
  • Earnings and earning capacity of each spouse
  • Ages of the spouses
  • The physical, mental, and emotional condition of each spouse
  • Sources of earned and unearned income
  • Length of the marriage
  • One spouse’s contribution to the other’s increased earning capacity
  • Whether the spouse’s earning ability is impacted by being the custodial parent
  • The marital standard of living
  • The education of each spouse
  • The assets and liabilities of the spouses
  • Property each spouse brought into the marriage
  • A spouse’s contribution as a homemaker
  • The financial needs of each spouse
  • Tax ramifications of an alimony award
  • Any other relevant economic factors

While a dependent spouse is not required to prove marital fault of the other to be awarded alimony, a judge may still take marital misconduct and adultery into consideration when determining how much should be awarded.

Payments terminate once the recipient spouse is in a cohabiting relationship with another person or they remarry. An alimony award will also end if there is a specified date in the order, or in the event that either spouse passes away.

Requesting an Alimony Award

Alimony is not automatic in North Carolina. Unless the spouses enter into an agreement, a request must be made to the court. However, the claim for post-separation support or alimony must be made while the spouses are still married. The court will not hear a claim for alimony that is first filed after the divorce has already been granted.

Spousal Maintenance Modifications

An upward or downward modification may be made to a court-ordered alimony award based on a spouse’s substantial change in circumstances. For instance, if the supporting spouse lost their job, the court may consider a downward modification. Critically, a downward modification request will be refused by a judge if the payor spouse intentionally reduced their income.

In addition, a dependent spouse might also make a request for an upward modification if the supporting spouse’s income significantly increased. Notably, if the spouses settled the matter of spousal maintenance out of court, it may not be modifiable unless otherwise specified in the agreement.

Contact and Skilled and Compassionate North Carolina Divorce and Family Law Attorney

Understanding alimony in a North Carolina divorce can be overwhelming and confusing. The divorce attorneys at The Twiford Law Firm can help you navigate the legal process and ensure your rights are protected every step of the way. We have extensive experience representing supporting spouses and dependent spouses in alimony claims and achieving fair outcomes in their cases.

With offices located in Moyock and Elizabeth City, The Twiford Law Firm provides reliable representation and trusted advocacy for divorce and family law matters throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation to learn how we can help.