Maginnis Howard no longer practices family law. This blog is for informational purposes only.
Post-separation support has been described as temporary alimony. It is financial support paid to a person from a spouse for a specific date or until alimony is determined. Post-separation support or alimony is not awarded in every case. Prior to determining if post-separation support or alimony can be awarded to a person, it must be shown that the person seeking financial support is a “dependent spouse” and the other spouse is a “supporting spouse.”
The North Carolina General Statutes define a “dependent spouse” as 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.” The primary issue regarding financial dependency is not whether the other spouse has more money, but whether there is an actual reliance upon their financial support to meet basic needs.
“Supporting spouse” mirrors the definition of a dependent spouse; “a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.”
The spouse seeking post-separation financial support or alimony has the burden of proving the financial dependency on the other spouse. To prove actual dependency, the individual seeking post-separation support or alimony must prove that their necessary and reasonable expenses exceed any available sources of income.
If both parties were financially dependent on a third-party during the marriage (parents, grandparents, a rich uncle), it may be possible that neither party is a supporting spouse. Additionally, the supporting spouse must actually have the ability to pay. Separating households can be expensive due to the income of the parties being necessary to support two households.
A dependent spouse can still be entitled to post-separation support and alimony even if they have a job providing income sufficient to allow a person to pay bills, rent, and otherwise survive. This is based upon the notion that the income will not support the lifestyle the parties had become accustomed to during the years of marriage. As the disparity between the parties’ incomes increase, the likelihood of financial dependency increases.
Advocacy for post-separation support or alimony requires a detailed analysis of the various factors the court will consider.
