Post Separation Support Lawyer in Raleigh, NC
Post separation support, commonly referred to as “temporary alimony,” is money paid by one spouse to the other spouse to help pay the living expenses of the other spouse. Post separation support provides an income stream for the reasonable needs of a spouse in need. While quicker to get in place than alimony, it is also more limited in duration. In some cases, a person can obtain things other than monetary support, such as health insurance coverage or assistance with a mortgage. Post separation support, often referred to as “PSS,” is a temporary form of support that terminates after the expiration of a certain stated period of time or when the alimony claim is resolved. In most cases, the issues of whether PSS is to be paid to a spouse, and if so, how much is to be paid, are resolved through negotiation and settlement between the attorneys and their clients. In those cases where no agreement can be reached, then the claim for PSS is submitted to court for a resolution. Not all spouses going through a separation and divorce are entitled to receive PSS.
North Carolina law requires that the following be established in order for a spouse to receive PSS:
- The spouse seeking PSS must be a “dependent spouse”.
- The spouse from whom support is sought must be a “supporting spouse”.
- The resources of the dependent spouse are not adequate to meet his or her needs.
- The supporting spouse has the means and ability to provide support to the dependent spouse.
The financial needs and condition of both spouses are relevant factors to consider in deciding whether and in what amount PSS should be paid in your case. It is very important that you provide your attorney with pertinent financial documents and information as soon as possible to evaluate your potential for such a claim being pursued on your behalf or defended against, depending on your particular case. While your attorney will direct you to provide specific documents, you can expect them to more than likely include pay stubs, tax returns, bank records and credit card statements going back to at least the year before the date of separation through the date that the most current information is available. A financial affidavit will be required to be completed by you that basically sets forth your “budget” of income and expenses. Your attorney can discuss this with you in more detail. The document is important to determine one’s status of being a dependent or supporting spouse and seeing what funds may be available to be paid in support by a “supporting” spouse or what amount is appropriate to meet the dependent spouse’s reasonable expenses.
Defense to Post Separation Support Requests
As a defense to a PSS claim, the supporting spouse may claim that the dependent spouse has committed acts of “marital misconduct.” If the supporting spouse makes such a claim, the dependent spouse is allowed to claim the supporting spouse has committed acts of marital misconduct. The grounds for finding marital misconduct are set out by statute. Only acts and conduct committed or that occurred during the marriage and prior to the date of separation will support a finding of marital misconduct; however, post separation acts and conduct can, in certain circumstances, corroborate or support a finding that marital misconduct was committed before the date of separation.
It is important to understand that marital misconduct does not mean that the spouse is automatically disqualified from receiving PSS. This is one factor that is considered during the judge’s decision with regard to entitlement, amount and duration of PSS. Most judges give little weight to marital misconduct at the PSS stage and treat it as more of a financially based determination. Most of your energy should be spent of the financial aspect of your PSS case, but do raise any marital misconduct concerns you have with your attorney as soon as possible.
PSS, like alimony, is considered “income” by the IRS and, therefore, will be included as income on the dependent spouse’s tax return. Likewise, it is tax deductible by the supporting spouse.
The amount of PSS is determined on a case by case basis, unlike child support. As a result, your cooperation with your attorney in completing an accurate financial affidavit and gathering financial records in a timely manner is particularly important so that your case can be prepared appropriately to maximize your chance of getting the best possible result in your case, whether you are the supporting or dependent spouse.
What You Need to Know About Alimony in North Carolina
Alimony is support that is paid by a supporting spouse to a dependent spouse for a stated period of time or until the occurrence of certain specified events, such as remarriage, death or other events that usually are related to some economic factor. Alimony is often referred to as “permanent,” but that term is a misnomer. The use of the term permanent relates to the time period of alimony often longer than that for PSS. In the past, alimony was often awarded to the dependent spouse until her death or remarriage. The more modern trend is a set period of years of alimony being awarded, typically half the duration of the marriage. In addition, alimony will also terminate upon the dependent or supporting spouse’s death or the dependent spouse’s remarriage or cohabitation as defined by statute and case law – whichever is the first to occur.
Frequently Asked Questions
Separation Issues
I am contemplating leaving my spouse, what can I do to protect myself financially prior to separating?
This is a very common question, and we appreciate the importance and gravity of financial issues. Every situation is different and therefore, we prefer to discuss the details of each client’s situation personally in order to offer a tailored plan of action.
In talking to my friends and family about a possible separation, I am getting so much advice that I do not know what to believe or who to talk to. What should I do?
The facts surrounding your marriage, divorce, children and property are unique. Although your friends and colleagues may have the best of intentions giving you advice about your case or anecdotes about others who have gone through the process, more often than not you are getting advice that is not accurate and you should be cautious when following advice that is not from your attorney regarding your case. Also, be careful when discussing sensitive details about your case with friends and family as this can often be passed on to other people, which can lead to your spouse finding out about it. This type of action can defeat all of your attorney’s efforts to help you.
Are there any issues regarding communication that I should be concerned about?
You should create a new email account to use to communicate to discuss issues related to separation and you should not use your home computer, or any computer that may be accessible by your spouse. New passwords should be random; do not use passwords, such as children’s birthdays, that can be easily guessed by your spouse. The concern regarding using computers accessible by your spouses arises as a result of the possibility of computer software being installed on a computer without your knowledge to monitor computer use. As a result, you spouse can read your emails or obtain new passwords to email and financial accounts. In addition to concerns regarding “spyware,” your spouse may copy the hard drive of the family computer or a computer to which he or she has access, and recover information you may think has been deleted, but can be recovered by a forensic computer expert. These issues can be more fully discussed at your consultation with your attorney. Using a cell phone on your family plan can give your spouse the opportunity to review itemized billing statements and see to whom you have been calling or texting. You need to get your own cell phone to use that cannot be accessed by your spouse. Prepaid cell phones can be a good option for this purpose.
My plan to separate is imminent, what do I do about my bank accounts and automatic draft of my paycheck?
When separation is imminent, you need a secure place to put funds to live on that cannot be accessed by the other spouse. Open a separate bank account, stop your direct deposits from going into your joint account and close joint accounts. If your paycheck is directly deposited, you will want to change it so you get a hard check to deposit prior to your separation. If your spouse is the bookkeeper of the family, they may notice this change, so it needs to occur as close to the separation as possible to prevent a problem being tipped off to your spouse. You will want to fund your separate account as soon as possible simultaneous with or very soon after the separation. The risk with joint accounts is that your spouse can wipe out all joint accounts with one keystroke now with internet banking. You should also consider canceling or freezing joint debt related accounts, such as credit cards, lines or credit or equity lines, to prevent your spouse from withdrawing funds or taking cash advances that could result in high interest costs, which you may ultimately become responsible for paying. It is important that, as soon as possible, you sit down and make a list of your debts, your expenses, your income and your assets. It is important to determine your net worth so you know what an equitable division of the marital estate will be, and what income you will need to support yourself in the future. In addition, you need to prepare a post-separation budget and set realistic financial goals. Now operating two households on that same amount of income that once funded one household can cause a great deal of financial strain. It may be a good idea to meet with a financial planner to get professional advice as to the best way to manage your money to ensure financial security in the future. You also need to review your credit report to determine the status of your credit and identify any debts you owe that either you were not aware of or were fraudulently incurred.
What should I think about if I or my spouse own an interest in a business?
If you or your spouse own any interest in a business, you need to understand the following:
- What type of business is it?
- What interests do you or your spouse holds in the company?
- How profitable is the business? What is the future potential of the business?
- Are you are personally liable for any of the business’ debts?
- Are dividends paid on a regular basis?
If you have access to copies of the business’ tax returns, financial statements or other financial records, etc. The easiest way to hide income from another spouse is through a business. These records are extremely important to obtain as soon as possible.
What should I tell my child or children about the separation?
This issue is very personal and case specific as things like age, maturity, and family dynamics are important considerations. We would recommend that this issue is best addressed after your case and situation have been evaluated by one of our attorneys.
I am so overwhelmed with what is going on in my case, what can I do to stay organized?
Keeping a journal or calendar can help you take notes on incidents that have occurred with your spouse, such as arguments that may have become heated, specific dates money was withdrawn from joint bank accounts, retirement accounts, etc. If you have children, you can keep a record of when you have custody and when your spouse has custody, when your spouse was late picking up the children, etc.
When can I start dating again?
Having gone through this process myself personally, I would suggest to you to take advantage of the one-year period of separation before entering into a serious romantic relationship. Take the year to connect with old friends and make new ones. Get acquainted with who you are and what you want for your future. Explore hobbies or other social groups and activities. Of course, if you are ready to get back into the dating scene before you are divorced, please proceed with caution. Adultery prior to the date of separation is marital misconduct and could give rise to a claim for alimony. Post-separation adultery is generally irrelevant, expect to the extent it helps to prove pre-separation adultery. However, post-separation adultery may be upsetting to your spouse and may affect his or her willingness to reach an agreement with you. If you are involved with someone else, please be discreet, be truthful and tell your attorney about the relationship.
I am having issues that relate to my divorce that are not “legal” in nature, what should I do?
Divorce is essentially the death of a marriage. It is traumatic whether you wanted the divorce or not. It is normal to go through a grieving process. Many times, people experience depression, anxiety, or other psychological conditions upon the breakup of a marriage. If you feel this way, please seek help from a mental health professional immediately. This help can come from counselors, trusted clergy, psychologists or psychiatrists. There are often support groups, which are free of charge and sometimes even provide free childcare, such as DivorceCare. You can go to www.divorcecare.org to find a group near you and to learn details about what options they have for you in terms of cost, childcare, etc.
What if I am thinking about reconciliation but the case is now in the middle of litigation, is it too late?
Sometimes after a case is moving forward and time passes, emotional wounds can heal; folks can reconsider some of the issues that initially resulted in the separation and change their ways. You should always feel free to discuss these thoughts with your attorney. It is our policy to encourage efforts toward reconciliation and we will make any effort to help our clients get the resources and assistance they need if that is their desire, such as marital counseling or financial advising. There may be legal consequences to a reconciliation, but those are best addressed on a case-by-case basis directly with one of our attorneys.
Determining The Need For Temporary Alimony of PSS
The end of a marriage rarely means the end of financial obligations. When one spouse depends upon the other financially, alimony may be available. Essentially, alimony comes down to two basic questions:
- One, is there a need for alimony?
- Two, if a need exists, how much alimony is appropriate and how long should it last?
Common Considerations in determining the amount and duration of alimony:
- Adultery – adultery is an absolute bar to alimony and will, with the exception of certain limited circumstances, prevent an award of alimony in North Carolina;
- The income and earning capacity of each spouse;
- The standard of living of the spouses;
- The length of the marriage;
- The contribution of a spouse as a homemaker; and
- The financial effect of having custody of a minor child or children.
These factors are not exclusive and alimony can be quite complex. For a thorough review of your alimony claim or defense, please contact our office to set up a consultation.
Alimony is “income” that is to be reported on the dependent spouse’s tax return and is deductible by the supporting spouse on his or her income tax return.
Alimony is determined after consideration of economic factors that are outlined in the statutes. Those economic factors include length of the marriage, the ages and health of the parties, the income and income earning abilities of the spouses, the standard of living established during the marriage and other economic factors that bear on the parties’ needs and ability to pay. Your attorney will need to discuss with you the facts of your case in order to determine which economic factors apply in your case.
While evidence of marital misconduct does not often play a large role in PSS claims, it may be very relevant to alimony. The statutes provide that a supporting spouse must pay alimony if he or she committed adultery during the marriage and prior to the date of separation. Likewise, if a spouse is considered “dependent” and is otherwise entitled to alimony, his or her claim is barred if he or she committed adultery during the marriage and prior to the date of separation. The issues of marital misconduct may be decided by a jury or a judge, but a judge determines the amount and duration of the alimony award.
About the Author
Younce, Vtipil, Baznik & Banks, P.A.
At Younce, Vtipil, Baznik & Banks, P.A., our clients work closely with a legal team that is dedicated to providing outstanding client service and unflinching legal representation. The majority of our attorneys and support staff have worked with our firm for many years.
