Post-Separation Support: Temporary Financial Relief During North Carolina Divorce
Understanding Post-Separation Support in North Carolina
Post-separation support (PSS) is a temporary form of spousal support ordered by a Court, or agreed to by the parties, which is paid by a supporting spouse to a dependent spouse after the date of separation but before a final alimony award and often prior to property division of the marital estate. Post-separation support is designed to address the immediate financial needs and prevent an undue financial hardship for the dependent spouse during the period of separation prior to a divorce case being finalized.
Unlike child support, post-separation support is intended to provide for the reasonable needs and expenses of a dependent spouse as opposed to providing for the care of children. While PSS is different than child support, in some cases a parent will receive both PSS and child support.
Who Qualifies to Receive Post-Separation Support?
Dependent Spouses
To be entitled to receive post-separation support, a Court must first find that one spouse is a dependent spouse, which is someone who is actually and substantially dependent upon the other spouse to maintain their reasonable standard of living. A Court may determine that a person is a dependent spouse if that person has insufficient income or assets to meet their reasonable financial needs and support their standard of living.
Who Pays Post-Separation Support?
Supporting Spouses
To be required to pay post-separation support, a Court must also find that one spouse is a supporting spouse. A supporting spouse is someone that has historically contributed to the other spouse’s financial well-being as the financial breadwinner of the family. In order to order PSS, a Court must also determine that the supporting spouse has the present ability to pay post-separation support to the other spouse.
Factors North Carolina Courts Consider for PSS
The determination of whether a court will award spousal support is largely based upon an evaluation of the financial needs of the dependent spouse and supporting spouse, the accustomed standard of living during the marriage, each spouse’s current earnings and income from all sources, the living expenses of each spouse in their residence, any marital or separate debt obligations, the available assets of the marriage, and any impact on the childcare responsibilities of either spouse.
Judges may also consider other factors ranging from spouses’ earning potentials, education, and career history to their ages and relative health. Judges may also factor any marital misconduct in deciding whether to award spousal support.
Financial Needs of Each Spouse
To calculate the financial needs of each spouse, a financial affidavit is prepared for each party, which compares each spouse’s income from all sources to their average monthly costs for a variety of expenses.
This financial affidavit requires both spouses to identify, on a monthly basis, virtually every expense they may incur, such as housing, utilities, groceries, home supplies, vehicle costs including gas, maintenance, and registration, insurances, cell phone and internet services, uninsured medical and therapy costs, clothing, eating out and entertainment, subscriptions, vacations, and pets.
In North Carolina, courts factor in whether the expenses listed by each spouse are reasonable and necessary. If a dependent spouse voluntarily engages in excessive spending after the date of separation to try to force the other spouse to pay more PSS or a dependent spouse does so to try to claim they do not have the ability to pay post-separation support, a Court may reduce or completely ignore such frivolous expenses.
To be a dependent spouse potentially entitled to post-separation support, a dependent spouse’s total monthly expenses must exceed that spouse’s total monthly net income. In addition, the Judge will also need to find what level of PSS the supporting spouse may pay, taking into consideration their own income and expenses.
Accustomed Standard of Living During the Marriage
When parties initially separate, they often live in residences or spend differently than they did during the marriage. Judges can consider factors like when one spouse does not have access to marital income or assets, or simply because a spouse believes the separation may be temporary, so they do not want to invest in expensive, comparable living arrangements.
Although spending after separation is less than during the marriage because parties are now living in two households, a Court may look at the parties’ accustomed standard of living during the marital relationship to determine a spouse’s financial needs. To do so, a spouse may use bank statements, credit card statements, or even a financial planner to create a budget of expenses during the marriage.
Earnings and Other Income Sources
Each spouse’s income will be determined by the Court to determine whether there is a supporting or dependent spouse. In circumstances in which one spouse earns about the same amount as the other spouse, there likely is not a dependent spouse or a supporting spouse.
To determine if there is a dependent spouse and a supporting spouse, a Court will review each spouse’s income, tax returns, significant investments, the marital estate, and other evidence to determine the income of each spouse. Judges will also calculate income to determine how much support a dependent spouse needs and how much support a supporting spouse may pay, keeping in mind each spouse’s respective expenses.
If the Court finds that a spouse is not working and has no income, has voluntarily engaged in a reduction of his or her earning capacity, or has refused a higher-paying job, the Court may impute that spouse’s earning capacity in determining whether spousal support is owed or how much is awarded. In this scenario, a Judge might determine that a spouse is earning a certain amount of income despite not actually earning said amount to either increase or decrease the amount of PSS owed.
Childcare Responsibilities
If the parties have minor children, Judges can also consider the childcare responsibilities of the dependent spouse. Depending on the ages of any minor children and the work history of the dependent spouse during the marriage, a Court may not be able to require a spouse to work after separation or find that the costs of childcare exceed the expected income the dependent spouse can earn in the workforce.
Ability to Pay Post-Separation Support
Even if a Judge finds that there is a dependent spouse, the Court must also find that the supporting spouse has the ability to pay spousal support. After considering each spouse’s expenses and other financial factors, the supporting spouse may not earn enough money to be able to provide support to the dependent spouse. In such a scenario, PSS will not be appropriate.
In determining whether the supporting spouse has the ability to pay spousal support, the court will also consider debt service obligations, such as payments towards marital property, such as a mortgage, vehicle loans, student loans, and other debts with periodic payments due.
Given that post-separation support is not determined by a calculator, circumstances vary from case to case as to whether spousal support is owed and how much the supporting spouse is ordered to pay to the dependent spouse.
The Role of Marital Misconduct in Post-Separation Support Decisions
Marital misconduct includes many different forms of misconduct during the marriage, such as abandonment, reckless spending, alcohol or drug abuse, illicit sexual behavior (sexual intercourse with someone other than a spouse prior to separation), and cruel and barbarous treatment of the other spouse.
According to North Carolina law, a Judge may consider marital misconduct by the dependent spouse occurring during the marriage prior to separation in deciding whether to award post-separation support or the amount of post-separation support. When a dependent spouse’s marital misconduct is raised, the judge must also consider any marital misconduct by the supporting spouse.
Under North Carolina law, adultery during the marriage is an absolute bar to the supporting spouse being awarded alimony. However, post-separation support differs from alimony in that a finding of illicit sexual behavior during the marriage by the dependent spouse does not bar an award of post-separation support.
Given that post-separation support is a form of temporary alimony, Judges have wide discretion on whether to consider marital misconduct, and to what extent, in awarding post-separation support. Since post-separation support focuses on the immediate financial needs of a dependent spouse, in many circumstances marital misconduct does not play as significant a factor in the award or amount of post-separation support.
Duration and Termination of Post-Separation Support
Post-separation support is temporary and will terminate upon the earliest of several factors including a date specified in the Order, the entry of an award of alimony, the death of either spouse, the cohabitation or remarriage of the dependent spouse, the dismissal of the alimony claim, or the entry of divorce if an alimony claim is not pending before the Court at that time.
Typically, an award of post-separation support involves periodic payments, usually once per month, from the supporting spouse to the dependent spouse. In certain circumstances, the Court can order as part of spousal support, that the supporting spouse pay for marital property for the use of the dependent spouse. For example, if the Court finds that the supporting spouse should continue to pay the mortgage on the former marital residence in which the dependent spouse lives, that expense can be credited as part of the spousal support award.
Attorney’s Fees Awards in Post-Separation Support
Under North Carolina law, when a dependent spouse is entitled to post-separation support, the dependent spouse may recover attorney’s fees from the supporting spouse for the attorney’s fees and expenses necessary to obtain an award of spousal support.
A number of factors determine whether an award of attorney’s fees is granted, such as the income of each spouse and the ability of each spouse to obtain counsel to meet on an even playing level. An award of attorney’s fees and the amount of attorney’s fees recovered is always in the discretion of the Court. If granted, the Court has wide discretion as to whether attorney’s fees should be paid by lump sum or through periodic payments.
Obtaining Post-Separation Support: The Process
After the date of separation, the spouse seeking PSS typically raises a claim for post-separation support and alimony with the Court by filing a verified pleading setting forth the factual basis for the request for spousal support. Since post-separation support is a temporary form of alimony in North Carolina, a hearing on post-separation support can occur far sooner than any determination on how much alimony should be awarded.
In most counties in North Carolina, prior to any hearing on post-separation support, financial affidavits showing the financial situation of the supporting spouse and the dependent spouse are filed with the Court. Financial documents, such as tax returns, bank statements, credit card statements, records of significant investments, and statements of debt servicing of the marital estate, are required to be exchanged.
If an agreement between the spouses is not reached, the Court will determine whether there is a dependent or supporting spouse (whether a spouse is substantially dependent upon the other spouse), the income and expenses of each spouse, the dependent spouse’s need for support, and the supporting spouse’s ability to pay spousal support moving forward. The Court may also consider if either spouse committed acts of marital misconduct as part of this process.
After considering all of the above, the Court may order the supporting spouse to provide support to the dependent spouse for the near future.
Miller Cushing Holladay’s Expertise in Post-Separation Support
At Miller Cushing Holladay, we focus our practice exclusively on North Carolina family law, which means we have experience with post-separation support cases of all different circumstances. When you choose Miller Cushing Holladay for your North Carolina post-separation and alimony case, you will be able to draw on the knowledge and experience of a team of Charlotte family law attorneys with more than 80 years of collective experience, including Board Certified Specialists in Family Law.
As a client of Miller Cushing Holladay, you will work with a Charlotte post-separation support and alimony lawyer to determine what legal strategies work best for your unique situation. We have a group of lawyers who are ready to assist, whether you need help navigating a settlement outside of court or strong advocacy at trial. We are committed to clear, frank communication with our clients so that you are able to make timely and informed decisions in your post-separation support and alimony case.
While we pride ourselves on working as a team, you can also rest assured knowing that the attorney you hire at the outset of your case is the attorney who will guide you throughout your case. You will have a personal relationship with your attorney, which ensures that your specific needs are addressed as they lead you through the legal process and seek to obtain the best possible results for you.
Why Choose Miller Cushing Holladay for Your Post-Separation Support Case?
Selecting the right post-separation support and alimony attorney is imperative to the best possible outcome for your financial situation. At our law firm, we will schedule an initial consultation for you with one of our attorneys, so we can educate you on your legal rights and options, but also so we can explain how we’ve seen similar situations play out in court and through settlement from our years of experience.
An important part of the initial consultation is speaking with your experienced family law attorney about the approach you believe—and they advise—your case will need. Some circumstances may be best served by a collaborative approach that focuses on seeking a post-separation support and alimony settlement outside of court, while other cases may require filing a lawsuit and aggressively pursuing post-separation support and alimony in court. Either way, it is crucial that you and your family law attorney agree on your objectives and the best way to try and achieve them.
Given that post-separation support and alimony are financial matters, it is crucial that you and your attorney discuss at every stage of the case the financial costs of legal action weighed against the risks and benefits of doing so. In some circumstances, the costs of a particular legal avenue may outweigh the benefits of what you seek to gain. In other circumstances, the costs of a legal avenue may be far less than the potential gain you may receive in court. At Miller Cushing Holladay, we pride ourselves on considering the cost-benefit analysis for our clients, as we believe it is a key component of an open and well-informed relationship with our clients.
Frequently Asked Questions
What is post-separation support (PSS) in North Carolina?
Post-separation support is a form of temporary spousal support or alimony that is intended to provide financial support to the spouse during the pendency of a divorce case. Post-separation support, which is often referred to as temporary alimony, is typically paid by a supporting spouse to a dependent spouse on a monthly basis.
Who is eligible to receive post-separation support?
In order to receive post-separation support, a spouse must first show that they were dependent on the other spouse for financial support and remain so following separation.
What factors do North Carolina courts consider when awarding PSS?
North Carolina courts consider a large list of factors when calculating PSS, ranging from parties’ educations and employment histories to their ages and health. The most important consideration, though, is each party’s budget, considering their incomes and expenses, to determine how much PSS is warranted.
How is post-separation support (PSS) different from alimony in NC?
Post-separation support in North Carolina is temporary spousal support after the date of separation, intended to address the immediate financial needs of a dependent spouse prior to an alimony award. Unlike alimony, post-separation support can be awarded prior to a final property division of the marital estate. Post-separation support is often awarded for a shorter period of time than alimony, depending on the length of the marriage.
Does marital misconduct affect post-separation support in North Carolina?
Unlike alimony in North Carolina, adultery prior to the date of separation is not an absolute bar to being able to receive post-separation support. However, if a spouse engaged in adultery or other forms of marital misconduct, under North Carolina law, the Court may also consider any such marital misconduct when determining PSS.
How long does post-separation support typically last?
Post-separation support is typically ordered for a specific number of months or until the entry of an award of alimony.
Is there a formula to calculate PSS in North Carolina?
Under North Carolina law, there is no calculator or formula for determining post-separation support. Instead, courts look at each spouse’s income, reasonable and necessary expenses, debt servicing, and any marital misconduct to determine an appropriate amount of support paid by one spouse to the other spouse.
What documentation do I need to ask for post-separation support?
A post-separation support case will typically involve reviewing important financial documents such as proof of income, including paystubs, tax returns, and other tax documents, as well as other financial documents, including bank account and credit card statements.
