When the court considers awarding post-separation support, it must first determine if there is a “dependent” spouse and a “supporting” spouse. According to North Carolina’s spousal support laws, a dependent spouse is a spouse, “whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” If the court determines that a dependent spouse exists, the court must then determine whether there is a “supporting” spouse. Meaning that the supporting spouse has provided financial support for some or all the length of the marriage.
The dependent spouse must prove that his or her own financial resources are not adequate to support his or her reasonable monthly expenses. The next step is to show that the supporting spouse has the financial resources to pay post-separation support. The court will review the dependent spouse’s “reasonable needs,” and look at the parties’ needs in light of their accustomed standard of living, their incomes, their income-earning ability, their necessary expenses, and the amount of debt of the parties. The goal of both post-separation support and alimony is to provide financial assistance that allows the dependent spouse to maintain the standard of living that he or she has become accustomed during the marriage. However, it is important to note that the reality is that many times, two households cannot maintain the same standard of living that the parties enjoyed during the marriage.
In determining whether to award post-separation support and the amount of post-separation support, the court may take into account any acts of marital misconduct committed by the dependent spouse on or before the date of separation. This evidence may only be presented if the supporting spouse first presents evidence of marital fault by the dependent spouse. If the supporting spouse does not present such evidence, the award, if any, is based only upon the financial circumstances of each party.
Finally, the court must find that the supporting spouse has the ability to pay post-separation support. In some cases, the court may find that the dependent spouse is in need of support, but the supporting spouse does not have the ability to pay any support.
The duration of the award is in the discretion of the judge and will terminate at a date certain or at the time an award for alimony is entered.
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