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HOW TO DETERMINE SPOUSAL SUPPORT
By Vicki I. Miller and Victoria Bender
Spousal support, unlike Child support, is not precise nor is it predictable. The approach to calculating amounts for alimony and child support differs substantially. Statutory factors and the discretion of the trial court determine the amount of alimony, unlike the formula based Child Support Guidelines. For alimony, the trial court reviews economic circumstances of the parties and the ability of the supporting spouse to pay, considering all the statutory provisions and the circumstances of the parties. The 1995 statute codifies appellate interpretations of the pre-1995 law and the focus of the 1995 statute is economic. The 1967 statute directed the court to set alimony "as the circumstances render necessary . . ." N.C. Gen. Stat. 50-16.5, whereas the 1995 statute refers in factor (15) to "[a]ny other factor relating to the economic circumstances of the parties that the court finds to be just and proper." N.C. Gen Stat 50-16.3A(b)(15). The standard for review of a trial court's decision is abuse of discretion. The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and may be reviewed by the court after the conclusion of the equitable distribution claim.
Post Separation Support
The Post Separation Support statute has a narrower focus than the Alimony statute with a much shorter list of statutory factors for the court's consideration than the alimony statute. PSS is intended as an expeditious enquiry focusing on immediate needs and there is no catchall phrase. The verified pleading, verified motion, or affidavit of the moving party shall set for the factual basis for the relief requested.
A post-separation support award "is a temporary measure, it is interlocutory, it does not affect a substantial right, and it is not immediately appealable." Rowe v. Rowe, 131 N.C.App 409,507, 507 S.E.2d 317 (1998).
§ 50-16.2A Post Separation Support.
(b) In ordering post separation support, the court shall base its award 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.
Alimony
The Alimony Statute has a better-defined, yet lengthier set of factors for consideration than the Post Separation Support Statute. The court awards alimony 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. The court exercises discretion in its review and although the amount awarded is neither absolute nor unreviewable, the clear abuse of discretion standard is a difficult hurdle for appeal.
Alimony -- § 50-16.3A. The alimony statute has a set of sixteen (16) factors for the court to review in determining alimony 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. The fifteenth factor includes a catchall phrase of "[a]ny other factor relating to the economic circumstances of the parties that the court finds to be just and proper." Section 50-16-3A(b) directs the trial court to "consider all relevant factors" when making the determination of alimony. Although pre-1995 statute, case law finding "the trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors . . . for a determination of alimony" is still good law. Lamb v. Lamb, 103 N.C.App. 541, 545, 406 S.E.2d 622,624 (1991) (quoting Skamarak v. Skamarak, 81 N.C.App. 125, 128, 343 S.E.2d 559, 561 (1986).
The Statutory Factors for Alimony Determination:
(1) 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;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) 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;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) 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.
(8) The standard of living of the spouses established during the marriage;
(9) 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;
(10) The relative assets
and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support.
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating
to the economic circumstances of the parties that the court finds to be just and proper;
(16) 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.
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