What About Custody, Child Support, Post-Separation Support, Alimony, and Property Division?
These issues are complicated and a full discussion is beyond the scope of this website. We do provide some basic information. You may resolve these issues by agreement with your spouse, in which case you would execute a Separation Agreement and Property Settlement. In order to be valid and binding, a Separation Agreement needs to follow certain formalities. You should consult an attorney for assistance in negotiating and drafting the Agreement.
If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court. If those options do not work for you, you will have to file a Complaint (lawsuit) seeking relief in court. Regardless of which approach you choose, you should consult an attorney first to know all of your rights on these complicated issues.
Do you have questions on what will happen with your children if your marriage ends? Do you want to know where the children will stay and how visitation will take place? »
Post-separation support and alimony are of similar nature. Post-separation support is temporary support that is used by our judges to get you to the equitable distribution of the case where the property and other marital assets and debts will be distributed. Both post-separation support and alimony are primarily based upon the needs of what is called the dependant spouse.
Each household usually has a supporting spouse and a dependant spouse, and this is based on the income of the parties. If you are the dependant spouse, and you have insufficient means to live, then it is likely the judge would award you post-separation support from the supporting spouse. This is based on a variety of factors that can be discussed with you depending on your particular situation. There is a standard affidavit of financial standing form that you will need to fill out in order to attempt to seek post-separation support. In ordering post-separation support, the court shall base its award on the financial needs of the parties:
- Considering the parties’ accustomed standard of living.
- The present employment income and other recurring earnings of each party from any source.
- Their income-earning abilities.
- The separate and marital debt service obligations.
- Those expenses reasonably necessary to support each of the parties.
- Each party’s respective legal obligations to support any other persons.
Generally, a dependant spouse is entitled to an award of post-separation support if, based on the consideration of these factors, the court finds that the resources of the dependant spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.
However, this may be impacted by the fact that at a hearing on post-separation support, the judge shall consider marital misconduct by the dependant spouse occurring prior to or on the date of separation in deciding whether to award post-separation support and in deciding the amount of post-separation support. When the judge considers these acts by the dependant spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award post separation support and in deciding the amount of post separation support.
Do you want to know your rights on support from a former spouse or if you will owe support as a result of the ending of a marriage? »
Alimony is also based on the needs of the dependant spouse and the ability to pay of the supporting spouse, but is usually addressed after equitable distribution. In order to pursue alimony, the needs of the dependant spouse in light of the equitable distribution order would be considered. It is important to note that in North Carolina if a dependant spouse has any form of illicit sexual conduct performed during the marriage that is not condoned by the other party, they are completely barred from getting alimony. Some other factors that the Court considers are:
- The relative earnings and earning capacities of the spouses.
- The ages and the physical, mental, and emotional conditions of the spouses.
- 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.
- The duration of the marriage.
- The contribution by one spouse to the education, training, or increased earning power of the other spouse.
- 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.
- The standard of living of the spouses established during the marriage.
- 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.
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support.
- The property brought to the marriage by either spouse.
- The contribution of a spouse as homemaker.
- The relative needs of the spouses.
- The federal, State, and local tax ramifications of the alimony award.
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- 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.
Are you going through a separation? Knowing what will happen with your property is very important. Do you want to know how issues of property distribution are handled?