(a) Entitlement. – In an action brought pursuant to Chapter 50 of the General Statutes, either party may make a claim for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section. If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.
(b) Amount and Duration. – The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
- Marital misconduct which includes: Acts of sexual or deviate sexual intercourse or deviate sexual acts voluntarily entered into by a spouse with someone other than the other spouse;
- Imprisonment resulting from a criminal act committed prior to the proceeding in which alimony is ought;
- Malicious turning out-of-doors of the other spouse;
- Cruel or barbarous treatment endangering the life of the other spouse;
- Indignities rendering the condition of the spouse intolerable and life burdensome;
- Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
Economic and other factors other than marital misconduct are also considered:
- Relative earnings and earning capacities of the spouses;
- Ages and the physical, mental, and emotional condition of the spouses;
- Amount and sources of earned and unearned income of both spouses, including, but not limited to earnings, dividends, and benefits such as medical, retirement, insurance, social security, or other;
- Duration of the marriage;
- Contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- Accustomed standard of living of the family established during the marriage;
- Relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- Relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- Property brought to the marriage by either spouse;
- Contribution of a spouse as homemaker;
- Relative needs of the spouses;
- Federal, state, or local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;
- The fact that income received by either party was considered by the court in determining the value of an asset in a hearing on equitable distribution.
Acts of marital misconduct must occur prior to the parties’ separation if evidence of those acts is to be admissible in an alimony or post-separation hearing. However, post-separation marital misconduct evidence may be used to corroborate evidence that marital misconduct occurred prior to the separation.
Either party has the right to have a jury decide the marital fault issues at an alimony trial but the judge must determine the appropriate alimony amount, if any. The judge may order alimony payable until either party dies or until the dependent spouse remarries or cohabits. The judge may limit the duration of the alimony award to a specific time period. In some cases, a judge may order rehabilitative alimony for a period of time sufficient to allow the dependent spouse to obtain additional education to return to the workplace. Generally, the longer the marriage, the longer the duration of an alimony award.
Termination of Alimony
The court has a great deal of discretion in determining the amount and duration of alimony. The court may make an alimony award for a specified or an indefinite time period. If alimony is awarded for an indefinite time, it must terminate on the death of either party and on the remarriage or cohabitation of the dependent spouse.