Defenses to Alimony in North Carolina

One of the most important claims in a divorce case is spousal support because a judge can order one spouse to pay the other a large sum of money over the course of several years. While this can be a positive thing for the dependent spouse, the supporting spouse could see the award as a financial liability. Whether you are the dependent spouse or the supporting spouse, it’s important to know the defenses to a claim for alimony in North Carolina so you can be as prepared as possible in court.

Waiver:

In North Carolina, spouses can legally waive their right to spousal support in a valid separation agreement, premarital agreement, or marital contract. A provision to waive spousal support will remain valid even after a period of reconciliation if the agreement is in writing, the waiver is clearly stated in the contract, and the contract was signed by both parties in front of a notary. See N.C.G.S. 52-10(a1) for more information.

After June 19, 2013, spouses who are separated but contemplating reconciliation can also enter into a contract that provides for or waives any spousal support rights if the parties do reconcile and later separate. The spouses must be truly separated when they enter into the contract though since it’s against public policy for spouses who are living together to contract with one another regarding their marital rights. The only exception is if they are contemplating separation and will separately shortly after the agreement is signed.

Marital Misconduct:

In North Carolina, if marital misconduct occurs during the marriage, it could affect the award, amount, and/or duration of spousal support. Several types of behavior can amount to marital misconduct. For a particular kind of marital misconduct, called illicit sexual behavior, the rules regarding an award of alimony are clear. For the rest, the judge may take these behaviors into account when deciding whether to award spousal support.

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Illicit sexual behavior: Generally, you can think of illicit sexual behavior as consensual sex acts between a spouse and someone who is not their spouse. For a more detailed definition, see C.G.S. 50-16.1A.

If the dependent spouse engages in illicit sexual behavior during the marriage, a judge cannot award alimony. However, if the supporting spouse engages in illicit sexual behavior during the marriage, a judge must award alimony. But if both parties engaged in illicit sexual behavior, the judge may use his or her discretion when deciding whether to award alimony.

It’s important to note that if the wronged spouse forgives the other spouse for an act of illicit sexual behavior, the court won’t consider that act when making the decision regarding alimony. This issue becomes a bit nuanced so make sure to speak openly with your attorney so they have all the facts and can prepare the most informed legal strategy for your case.

Other forms of marital misconduct: N.C.G.S. 50-16.1A lays out eight other behaviors that constitute marital misconduct. These include abandonment, cruel or barbarous treatment, indignities rendering the condition of the other spouse intolerable and life burdensome, excessive use of drugs or alcohol, and reckless spending of the income of either party, among others. In spousal support cases, a judge may take these factors into account when deciding the amount and duration of alimony.

When spouses separate physically, they must also separate financially. The income that once supported one household must now support two. The amount and duration of spousal support can make a huge difference in life after divorce, both for the supporting spouse and the dependent spouse—which makes receiving quality legal advice and representation critical.

Our family law attorneys have more than 30 years combined experience representing clients through the divorce process. Contact our office to schedule a consultation. After you share your story, we’ll discuss your legal rights and help you decide the best plan for moving forward.

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