Family Law Attorneys Serving Asheville, Hendersonville & Surrounding Areas
After most separations, the most immediate issue a spouse must deal with is one of finances. How will the parties pay to maintain separate households? Who will make payments on the necessities, such as the car payment, the rent or mortgage payment and who will pay the credit cards? Will money be exchanged between the parties and, if so, how much money and how often? The parties need to address these issues quickly to avoid defaulting on payments and to provide as much immediate financial security as possible, especially if they have minor children.
Post Separation Support: What Is It?
Post Separation Support is a form of financial support paid from one spouse to the other. This support is paid after the separation of the parties and prior to the absolute divorce of the parties. Support paid after the absolute divorce of the parties is known as alimony. It is important to delineate between post separation support and alimony, as each is covered by a different statute and each has different procedures and criteria. Post separation support is covered by § 50-16.2A of the North Carolina Statutes. Post separation support is awarded 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, and
- each party's respective legal obligations to support any other persons.
Using the above criteria, post separation support is awarded if “the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.”
Procedure for Post Separation Support Orders
Typically, the parties work to find a mutually agreeable solution that alleviates the need to go to a hearing on the issue. While not required, these agreements should be written and signed by the parties, so as to make the obligations clear and expedited enforcement possible. If the parties cannot agree on the amount of post-separation support to be paid (or if it is to be paid at all), the spouse seeking support may file an action for alimony with the court and can seek a temporary order awarding post separation support.
Post separation support can be ordered by the court, even without a hearing. The court can determine whether to award post separation support and in what amount based solely on verified pleadings, motions or affidavits. “Verified” means the particular pleading is sworn to by the party filing it. Often, a court will choose to take testimony from the parties or other relevant witnesses, such as accountants or other financial experts, but this testimony is not otherwise required. The court must enter an order and must set forth the reasons for awarding or denying post separation support.
No Formula for Determining Post Separation Support
Unlike child support, there is no “guideline” or presumptive amount of spousal support to be awarded. The court has a huge amount of discretion in determining whether spousal support should be paid and, if so, in what amount. The court must make detailed findings in the order awarding or denying post separation support or the order is subject to reversal; but if the court’s findings are supported by competent evidence, the order is very unlikely to be reversed on appeal. There is generally no right to a jury trial in the determination of post separation support.
Because of the court’s discretion in this matter, it is vital that a party be well prepared for a hearing. Necessary financial information must be gathered, financial resources must be identified and evaluated, and witnesses must be well prepared. A qualified and experienced attorney can help you negotiate a spousal support obligation or assist you in preparing for a hearing on spousal support if one is necessary.
The Importance of Post Separation Support
Whether the parties reach an agreement or a court enters a temporary order of support, the parties must find a way to deal with the outcome of the order or agreement for at least a year, as a judgment of absolute divorce cannot be entered until the parties have been separated for a year. This is one of the reasons the initial determination of post separation support can be crucial to a case. A spouse who isn’t receiving sufficient support is going to be in a weakened negotiating position and may be anxious to resolve the case in order to get to equitable distribution to access additional monies. Also, a spouse who is paying an amount of support beyond what he or she can actually afford will likewise be anxious to settle the case and will thus be in a poor negotiating position.
Marital Misconduct and Spousal Support
While there are no guidelines or presumptive amounts to be awarded for spousal support, the court must at least consider marital misconduct when determining post separation support. However, unlike alimony, the court is not required to make a particular ruling if it finds marital misconduct.
For example, if the court finds that the dependent spouse is guilty of marital misconduct by having an extra-marital affair, the court may refuse to award post separation support, but is not required to refuse to award post separation support. On the other hand, in the case of alimony, the court would be required to deny the request for alimony based on the dependent spouse’s extra-marital affair.
For both alimony and post separation support, marital misconduct is defined by § 50-16.1.A(3).
How Our Experienced Lawyers Can Help
When it comes to post separation support, our attorneys can help, regardless of which side of the issue you find yourself. Our experienced family law attorneys can guide you through the process, help you negotiate the best possible agreement or, if necessary, aggressively prepare your case for a hearing. As Western North Carolina and Asheville’s largest law firm, we have the resources and local experience to prepare your case in an efficient and effective manner.
If you have any questions about post separation support, contact one of our experienced family lawyers today to schedule a consultation. We look forward to hearing from you.