Termination and Modification of Alimony in North Carolina
Understanding Alimony in North Carolina: The Basics
Alimony, commonly referred to as spousal support, is periodic financial assistance and support paid from a supporting spouse to the dependent spouse to meet his or her needs. These periodic support payments are typically ordered for a specific amount of time. North Carolina courts can also require a spouse to pay alimony as a lump sum.
Post-separation support, often called PSS or temporary alimony, is a temporary determination of financial support to be paid. Typically, post-separation support is “modified” by a determination of final alimony.
An award of alimony is a final determination on the issue of spousal support. Under certain circumstances, alimony can be modified. North Carolina law provides automatic terminations and options to modify if the alimony award is set forth in a court Order. If the alimony award is set forth in a negotiated contract, that contract must also contain provisions that allow modification in order for modification to be possible in the future.
Alimony is different than child support in that there is no calculator or precise formula to determine how much alimony is paid or how long alimony is paid. As a result, North Carolina judges have broad discretion in alimony claims to decide how much, if any, spousal support should be paid by one spouse to the other spouse and for how long.
When Alimony in a Court Order Can Be Terminated in North Carolina
North Carolina alimony law provides for an automatic termination of alimony in the event of any first of the following several events:
- Remarriage of the dependent spouse;
- Cohabitation of the dependent spouse;
- Death of either the supporting or dependent spouse; or
- The full payment of all alimony awarded.
Remarriage of the Dependent Spouse
If alimony is awarded in periodic payments, such as a monthly amount owed, and the dependent spouse remarries, alimony automatically terminates. Upon a dependent spouse’s remarriage, alimony payments from the supporting spouse to the dependent spouse are terminated and no longer owed by the paying spouse after the dependent spouse remarries.
If the supporting spouse remarries, their remarriage does not have any impact on their alimony obligation. In other words, the supporting spouse will not have grounds to seek an alimony modification solely based on their remarriage.
Cohabitation of the Dependent Spouse
While North Carolina law states that an obligation to pay alimony terminates upon the dependent spouse’s cohabitation, this issue is often hotly contested. Spending the night once or even several nights alone is often not enough for North Carolina courts to constitute cohabitation to terminate alimony.
Prior to making a finding of cohabitation, courts must generally find the following: (a) that the dependent spouse has been habitually living with a romantic partner and (b) has assumed marital rights, duties, and obligations with their partner.
The supporting spouse has the duty to provide evidence that the dependent spouse lives with his or her partner regularly and does not just periodically spend the night together. This can be established by a lease with the dependent spouse and their partner, the purchase of property together, or private investigator reports showing the dependent spouse and their partner consistently spending the night together.
The supporting spouse must also provide evidence that the dependent spouse and their partner have assumed marital duties or have a marriage-like relationship. This can be done through the sharing of living expenses, groceries, utilities, and the co-mingling of bank accounts. Other evidence includes carrying out household maintenance such as yard work, repairs, and the like on the partner’s home. Indications of such a relationship can be established by taking trips together, spending holidays with family, and attending events together.
When Alimony in a Court Order Can be Modified in North Carolina
North Carolina alimony law allows either the supporting spouse or the dependent spouse to petition the Court for a modification of alimony in the event of a change in circumstances that warrant a change in the alimony arrangement. These modification requests do not automatically change or terminate alimony, but require the Court’s approval.
These changes in circumstances must be substantial and material to meet the grounds necessary for modifying alimony. Temporary or small financial changes typically do not meet the legal standard necessary to modify alimony. These substantial changes generally must also be unforeseen at the time the original alimony order was entered.
If the Court finds permanent alimony should be modified, the Judge has wide discretion based on each party’s financial circumstances in an alimony modification to change how much one spouse pays to the former spouse each month or to change the duration of alimony. Based on life changes and changes in the finances of the parties, the Court can modify alimony orders to reduce the amount paid, increase the amount paid, or terminate the alimony award.
Common Scenarios That Warrant Modification of Alimony in North Carolina
A spouse seeking an alimony modification due to changes in circumstances often does so due to financial hardship or a changed financial situation, such as a job loss, demotion, or serious illness, which impairs either party’s ability to work or pay their reasonable needs and expenses.
If the paying spouse has a job loss, a brief period of unemployment may not constitute a substantial change in circumstances to permanently change alimony if the paying spouse finds new work at a similar pay. However, long-term unemployment or underemployment, which is due to no fault of the spouse, may constitute a substantial change warranting modification of alimony.
Generally, the amount of decrease in income must be significant to warrant an alimony modification. The party seeking modification must generally show that the decrease in income was not due to bad faith and that the spouse has sought but been unable to obtain comparable employment to their prior income when alimony was awarded. A purposeful reduction of income, to either seek a reduction of alimony or an increase of alimony, is not typically awarded through a modification of alimony.
If either party suffers significant medical issues, alimony can also be changed. The Court will look at the ability of the party suffering from medical illness to work and also at the resulting financial situation from the illness. Medical records often establish any work restrictions or significant changes that affect the ability to work. Significant medical debt, the need for in-home medical assistance, and other factors may reduce the supporting spouse’s ability to pay alimony or increase the reasonable needs of the dependent spouse.
Other life events may also warrant modification of alimony. If the lower-earning spouse has built a career and financial independence such that they are no longer in need of support, the paying spouse can seek modification. If the supporting spouse retires and is no longer earning income from employment, they may also seek modification. If either spouse inherits significant sums of money or income-producing assets, such assets may also serve as grounds for modification.
The Legal Process for Terminating or Modifying Alimony in a Court Order
To terminate or modify alimony payments in North Carolina, the first step is generally to file a Motion with the Court outlining the basis for the termination or modification. Alimony orders that are satisfied by the completion of all alimony owed do not require any legal process with the court to terminate. Likewise, in some circumstances, the termination may be clear, such as when a spouse passes or one spouse (the dependent spouse) remarries.
Where termination is sought based on cohabitation or where modification is sought based on changes in circumstances, there is often an extensive discovery process after a Motion to modify alimony is filed. Financial records of both parties’ income, assets, and expenses are necessary to calculate a fair modification, if any. The dependent spouse’s financial needs and ability to meet those needs based on their own income and assets will be a critical analysis of any modification.
Even assuming the changed circumstances can be established, because there is no calculator for alimony in North Carolina and the Court has wide discretion in issuing alimony orders, it is common for parties to mediate and negotiate a modification of alimony. During this process, the parties can reach an agreement on the financial needs and any alimony to be paid. Parties have numerous options for reaching a compromise and can creatively negotiate a lump sum payment or even transfer property to satisfy alimony.
If a compromised solution cannot be reached, a court hearing will be necessary for a Judge to make a determination on whether the alimony arrangement should be changed and, if so, in what form.
When Alimony in a Contract Can Be Modified or Terminated in North Carolina
When parties negotiate and reach an alimony agreement that is set forth in a contract rather than a court Order, the ability to modify or terminate must also be set forth in that contract.
The court can only modify or terminate alimony awarded in a court Order, absent an agreement between the parties otherwise. If alimony payments are set forth in a contract, the court does not have jurisdiction to terminate or modify those terms unless the parties agree otherwise.
Experienced family law attorneys will sometimes include a negotiated modification or termination provision in a contract for alimony. The supporting spouse is incentivized to include the ability to change alimony in a contract, while the dependent spouse is incentivized to make alimony non-modifiable so that their alimony cannot be reduced.
Miller Cushing Holladay’s Expertise and Approach to Alimony Cases
With over 80 years of combined experience, our seasoned family law attorneys at Miller Cushing Holladay have a complex understanding of alimony in North Carolina and the nuances of when and how alimony can be terminated or modified.
Our attorneys take a meticulous approach to gathering and analyzing financial information to build a strong case for termination or modification of alimony or for arguing why alimony should not be terminated or modified.
We have the knowledge and experience to analyze your case to determine the best legal strategy in an alimony modification or termination case to figure out which options best suit the needs of your case. Our attorneys are ready to assist, whether you need help seeking a settlement outside of court or experienced, proficient advocacy at trial.
Why Choose Miller Cushing Holladay for Your Alimony Case?
Having an experienced family law attorney is critical to the best possible outcome for your alimony modification or termination case. We will schedule an initial consultation where you will meet with one of our Charlotte family law attorneys who will educate you on your legal rights and options, as well as explain how other cases have played out in our extensive experience, both through settlement and in court.
During the initial consultation, your attorney will provide an approach they believe best matches your desired financial outcome and discuss what evidence, documentation, and arguments your case will require. Each case is different, and some are best served through a compromised solution outside court, while others necessitate an aggressive approach through the court system.
It is crucial for you and your attorney to understand the financial objectives and the best possible way to achieve them. Modification or termination of alimony is a financial matter, and at Miller Cushing Holladay, we pride ourselves on regular discussions with clients as to the costs of legal action versus the risks and benefits of possible outcomes from the court. This cost-benefit analysis is a key component to keeping clients well-informed to maximize your outcome and minimize your legal time, costs, and energy.
Frequently Asked Questions
How is alimony terminated automatically in North Carolina?
Statutory factors that automatically terminate alimony include the death of either spouse, the remarriage of the dependent spouse, the cohabitation of the dependent spouse (although it is often disputed as to whether there is cohabitation), and the completion of alimony payments in the alimony award.
What is the legal definition of “cohabitation” for alimony termination in North Carolina?
North Carolina law specifically defines cohabitation as follows: “Cohabitation means the act of two adults dwelling together continuously and habitually in a … relationship, even if this relationship is not solemnized by marriage…. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” Ultimately, whether cohabitation exists will be a case-by-case determination.
Does remarriage of the dependent spouse automatically terminate alimony?
Yes, under North Carolina law, a dependent spouse’s remarriage automatically terminates alimony.
What type of “substantial change in circumstances” allows for alimony modification in North Carolina?
There is no comprehensive list of what constitutes a substantial change in circumstances. Typically, significant changes in income, expenses, and the ability of each spouse to meet his or her needs are considered substantial changes that warrant a modification of alimony.
Can I get my alimony payments increased if my ex’s income significantly rises?
A supporting spouse’s increased income could be sufficient to modify alimony, assuming other economic factors are present that also warrant a modification.
What evidence do I need to prove cohabitation for alimony?
You will need clear evidence that the dependent spouse is habitually living with a romantic partner and has assumed marital roles and duties. This is often established through co-mingling of finances and sharing of expenses with the partner, as well as evidence that parties are living together. Oftentimes, these cases will involve the use of a private investigator to prove such circumstances.
Can alimony payments be modified if they were part of a separation agreement?
Generally, courts do not have the ability to modify alimony set forth in a separation agreement unless such an agreement includes clear language allowing such a modification.
How long does the process for modifying or terminating alimony typically take?
The time it takes to modify or terminate alimony will vary depending on whether such is handled through arbitration or the court system. Whereas cases that go through arbitration can be resolved in a quicker manner, cases that require court intervention can sometimes take many months to resolve.
