Post Separation Support and alimony are button issues. When a marriage is breaking up the last thing a supporting spouse wants to do is give the other party one red cent and the first thing the dependent spouse wants to do is hit that penny pinching tightwad where it hurts. Regardless of whether you are the supporting spouse or the dependent spouse, both of these attitudes are counterproductive.

Equally difficult, but only to yourselves, are people who feel fear or guilt: Dependent spouses who don't want anything but out; supporting spouses who don't want to hurt the other any more or change the lifestyle in any way. Guilt dissipates, contracts go on forever.

1. GENERAL CONSIDERATIONS

Often times when a person has a problem they talk to friends about it. And they talk and they talk until every person they meet is assumed to know all the details of the particular situation. The talker, also, repeats a story so often that it gains a life of its own and becomes that person’s truth. While an attorney does not want to become a confidant or a counselor, it is important to have information regarding the history of the marriage. In this manner the practitioner will be able to more effectively negotiate with the opposing counsel, and will understand the non-legal issues for which domestic cases are so rightfully famous.

1. Marital History

As soon as a client comes in to our office, we ask him or her to provide a complete history of the marriage in the client’s own words paying particular attention to the alimony factors listed in NCGS 50-16.3A(b) and the definition of marital misconduct in NCGS 50-16.1A(3), which we set out for you. We set up a specific date and time for the return of the narrative and stress its importance. When the history is returned our paralegal will review it and ask for clarification or corroboration, Who else knows about this incident? Did you take pictures? Did you write anything down? Was a police report made? Did you get the name of the person in the banana suit? Did you keep a copy of the email? It may be that you will never need to follow up, but here you are beginning the search for evidence and witnesses. You are, also, learning whether what you think happened can really be substantiated. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including those set forth in 50-16.3A:

• The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date of separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
• The relative earnings and earning capacities of the spouses;
• The ages and the physical, mental, and emotional conditions of the spouses;
• The 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 others;
• The duration of the marriage;
• The 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;
• The standard of living of the spouses established during the marriage;
• The 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;
• The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
• The property brought to the marriage by either spouse;
• The contribution of a spouse as homemaker;
• The relative needs of the spouses;
• The federal, State, and 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 previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.

2. Financial Affidavit

Most counties require some financial affidavit to determine monthly income and expenses. The sooner this information is acquired the sooner we will be able to determine your needs and the ability to pay support. Districts which are family court districts and certain other districts, including Wake County, have local rules regarding initial disclosure of financial documents. You must provide this information regardless of whether you are the dependent or supported spouse. CHECK THE LOCAL RULES FOR THE JUDICIAL DISTRICT IN WHICH YOUR CASE IS OR MAY BE PENDING, do not be embarrassed at trial by being unable to produce documents because you did not comply with local rules.

The most effective way to determine historic monthly expenses is to take the check register and credit card statements for the past twelve months and divide the expenditures into appropriate categories. While you may balk at what seems a daunting task, we can provide an afternoon with our paralegal for those unwilling or unable to tackle the task independently. Sometimes the historic data will no longer be applicable, but it does set forth the accustomed standard of living and shows a pattern of how the family income was used. This exercise is, also, a very effective way of discovering unusual payments or trends. In addition, the court requires this data in alimony cases,

In order to be "actually substantially dependent" on the other spouse, "the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation." *548Williams, 299 N.C. at 180, 261 S.E.2d at 854. "[T]he trial court must evaluate the parties' incomes and expenses measured by the standard of living of the family as a unit" in order to determine if a spouse is "actually substantially dependent." Talent v. Talent, 76 N.C.App. 545, 548, 334 S.E.2d 256, 258 (1985). Lamb v Lamb 103 N.C.App. 541, 406 S.E.2d 622.

It is often helpful for you prepare a financial affidavit showing the current financial situation (after separation) and the estimated cost of a future situation, such as when you move from the parents’ home into your own residence, or when the house is sold or refinanced, etc.

Our office provides each client with a notebook which includes a copy of Rule 10 of the Wake County Local Domestic Rules so that you can gather all requested information and return it to our office for review.

Not only should you provide this information, but we should receive the same information from opposing counsel or from the unrepresented opposing party. While it is their duty to provide the information, it is important that we make sure that it is provided.

Armed with the history of the relationship and the financial status of the client as well as the accustomed standard of living for the past year or two, the attorney can make a reasonable assessment of the needs of both the dependent and supporting spouse and determine issues of marital fault.