As you've probably gleaned from reading my blog over the last couple months, North Carolina is a little bit unusual in how divorces are done. Sure, the actual divorce is basically two elements (year and a day separation period and six month residency requirement), but the other Family Law actions (Equitable Distribution, Post-Separation Support, Alimony, Child Support, Child Custody) are all actions that must be specifically plead. Since I've covered the aforementioned ED, Child Support, and Child Custody already, (that can all be found here by the way), I am going to discuss Post-Separation Support, Alimony, and the effect of adultery on divorce actions.
POST-SEPARATION SUPPORT ("PSS")
In North Carolina, Post-Separation Support (PSS) is very similar to Alimony, but they are two separate actions. They are similar in that there has to be a determination that there is a dependent spouse and a supporting spouse. Dependent spouse is defined under NCGS section 50-16.1A as a spouse that is substantially dependent on the other spouse for support and maintenance. Supporting spouse is also defined under section 50-16.1A and refers to a spouse that provides support and maintenance to the other spouse.
A post-separation support action is filed when the parties separate and is for the duration of the one year separation period that is required in order to obtain an absolute divorce. Post-separation support is found under NCGS section 50-16.2A.
Keep in mind that if a party meets the definition of a supporting spouse and they are not paying the dependent spouse monthly support payments, then a court can rule for retroactive support going back to the date of separation.
The statute which allows for alimony in North Carolina can be found in NCGS section 50-16.3A. Alimony and Post-Separation Support must be filed before a final divorce decree is entered, otherwise, each cause of action will be lost, i.e., neither party cannot bring it up in a court action. As previously stated, the definition for dependent and supporting spouse is the same for alimony as it is for post-separation support.
WHAT ABOUT ADULTERY?
Only post-separation support and alimony are affected by adultery in North Carolina. Adultery, which is a type of marital misconduct, does not effect child support, equitable distribution, or child custody (some can make an argument that adultery can effect custody in extreme situations).
In alimony, a non-condoned act of illicit sexual behavior by a party prior to, or on, the date of separation will either prevent that party from being awarded alimony, or allow the court to award alimony to the non-cheating spouse. Basically, if party A (supporting spouse) cheats two days prior to the separation date and party B (dependent spouse) proves it in court, then the court will award party A alimony. If party B had cheated, then party A pays party B nothing. Got it? Good. Let's move on to the one difference between post-separation support and alimony as it pertains to adultery.
While a non-cheating spouse may bring up proof of illicit sexual behavior at any time in an alimony action, a dependent non-cheating spouse can only bring up proof of illicit sexual behavior in a post-separation support action if the cheating spouse first brings up evidence of fault by the dependent spouse. To clarify, party A (supporting spouse) mentions nothing about party B's (dependent spouse) behavior that may have led to his/her infidelity. Party B cannot then bring up any proof of party A's adultery. However, say Party A testifies (testimony is evidence) that party B doesn't do housework and that is the reason why the marriage doesn't work anymore. Party B can now bring up party A's illicit sexual behavior with someone else and provide evidence to support it.
That is going to conclude my blog for today. Check out my next blog post which will feature a discussion on Alienation of Affection and Criminal Conversation which are the two civil causes of action against a spouse's lover.
REMEMBER: THIS IS NOT TO BE CONSTRUED AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP, NOR IS TO BE CONSTRUED AS LEGAL ADVICE.