Post Separation Support

Post separation support is temporary and is ordered by a court to help one spouse meet his or her expenses after separation. This may be necessitated by the fact that one spouse sacrificed a career for the sake of the marriage and has few prospects for a job immediately after a separation. This support can be critical for someone who needs to pay rent or a mortgage and keep up with monthly bills and is suddenly without his/her spouse's income. This temporary support can be settled out of court via a separation agreement.

law photo

This support is provided for a defined period or until an order is entered either allowing or denying alimony. Two factors must come into play in order for post-separation support to be granted:

If provisions have not been made in a separation agreement, the dependant spouse must apply to the court for post separation support (temporary alimony) after separation if he/she feels immediate support is needed.

This support is paid in the manner ordered by the court. It can be paid in one of four ways:

If payments become delinquent, the dependent spouse may apply to the court for an order of income withholding. If the court orders income withholding, a notice of obligation to withhold shall be served on the supporting spouse. It shall be filed with the clerk of court and served upon the supporting spouse by first class mail.


According to a law that was enacted in North Carolina in October 1995, a spouse must only prove that he or she is a dependent spouse to be entitled to an award of alimony. A spouse is considered dependent if his or her income is insufficient to maintain the standard of living enjoyed during the marriage due to the loss of the other spouse's income.

As a general rule, alimony, also known as spousal support, is paid either on a periodic basis or in a lump sum to the dependent spouse from the supporting spouse. Conditions of the alimony are based on many pertinent factors. These include:

If either spouse dies, alimony ends. Also, if the dependent spouse becomes involved in a sexual relationship with either a person of the same or opposite sex on a regular basis in a marriage like relationship, alimony payments may cease. They may also cease by the terms of a court order specifying that the payments are to end on a certain date. Either party may make a motion to increase or decrease an alimony amount any time based upon a change of circumstances.

The court strives to be fair to both parties. It understands that the reality, in most cases, is that both spouses will have to accept a lower standard of living because they must now maintain two separate households. And, in spite of the fact that the word "permanent" is used regarding alimony, it does not necessarily go on forever. The court may order that it be paid only for a limited period of time.

In filing tax returns, alimony payments are considered taxable income to the dependent spouse and a deduction to the supporting spouse.

Child Support

North Carolina provides guidelines with instructions, which helps families determine child support amounts. These guidelines became effective on October 1, 2006.

Often the parents of the child are able to work out their own agreement. Once the amount has been calculated, we file the calculations for the client in court. Or the child support can be settled as part of the separation agreement.

Support is calculated based upon each parent's gross monthly income which may include IRAs and stock options . Those calculations for both custodial and non-custodial parents also includes child support paid for children from a previous marriage, cost of day care and cost of group health insurance.

North Carolina statutes designate who may bring an action for child support; who can be held responsible for its payment; and how soon a child support case should be heard.

Child support may take various forms including cash payments and property transfers. The most common method of child support payment, of course, is cash payment in monthly, or sometimes weekly, installments. Child support is paid to the custodial parent by the non custodial parent or to "any other proper person, agency, organization or institution, or to he court for the benefit of the child." Either the party having custody or, upon motion and under a court order, the clerk of court may receive the payments. If the court clerk receives the payments, they are then forwarded to the intended recipient.

North Carolina courts do not take child support laws lightly, declaring that falling behind in court ordered child support payments is considered contempt of court. A warrant may be issued for the arrest of a person who has not met his/her legal financial obligations. Property may be attached and punishment may include a fine or imprisonment.

As a person's financial circumstances change, child support arrangements can also change and it sometimes becomes necessary to petition the court for alterations. The awarding of sole, joint or split custody will affect the calculated amount due for child support. If one party has petitioned for alterations the local court will decide if one or both parties must complete a financial affidavit, setting forth the child's monthly needs and expenses.

The financial affidavit requires the allocation of the needs and expenses between the custodial parent and the child or children. A fixed percentage may be used to apportion the expenses unless there is evidence that such a division is unreasonable. Other rules apply if the custodial parent remarries or lives with other third parties.

Child support terminates in North Carolina when a child reaches the age of 18, unless there is some exception. The two most important exceptions to this rule are that: 1) when a child is otherwise emancipated prior to age 18, payments terminate at that time, and 2) if the child is still in primary or secondary school when he/she reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first. In some cases the court can order that payments cease at age 18 or prior to high school graduation. The other statutory exception to the rule against post minority support applies to a child who is incapable of self support. For such a child, the obligation of child support continues until the child is no longer physically or mentally incapable of supporting him or herself.

Changes in circumstances could cause the amount of child support to go up or down. These include but are not limited to: increased needs for the child, even if the parties' incomes have not changed; decline in payor's income, through no fault of his own; increase in both parents' incomes; or change in the place of residence.

If child support is embodied in a separation agreement, the standard for modification requires only that the amount of support necessary to meet the reasonable needs of the child be shown. However, if a court order for child support is to be modified, the party must show "changed circumstances." This change must be both "substantial and material." This standard for modification puts a heightened burden on the party seeking to change the amount of support. The court only considers changes since the entry of the most recent order.

Considered changes focus on the reasonable needs of the child, each parent's relative ability to pay, and all the other financial factors taken into account under the guidelines.

Equitable Distribution of Assets

Equitable Distribution is the process by which marital property is divided. In North Carolina, which is considered an equitable distribution state. This differs from community property states, in which the rule of law is that both spouses jointly own all income and assets earned or acquired during the marriage and it is divided 50/50. In equitable distribution, the law looks at many possible exceptions, as will be explained.

Martial property includes everything that has been acquired from the date of the marriage to the date of the separation and may include such assets as real and/or personal property, retirement plans, IRAs, pension plans, 401(k) plans and insurance. Even if only one party has his or her name on a title, it becomes marital property if it was acquired by funds earned during the marriage. However, it does not include property that was inherited by, or gifted to, just one spouse, although if that property has increased in value during the course of a marriage, that increase may become marital property.

Debts are also classified and distributed in an equitable distribution matter and may be classified as separate or marital.

In order to determine what each spouse should be entitled to, both parties must prepare an Equitable Distribution (ED) inventory affidavit listing all property. To avoid delays during the actual divorce, all property division issues must be addressed prior to divorce.

If both spouses agree on their assets and property distribution, there is no need for the courts to be involved at all.

If asset division is contested, the courts must determine what assets are marital property and what factors must be considered for distribution of such assets. Their goal is not necessarily for an equal distribution because sometimes there are factors that must be considered that would make the distribution seem not equal, although in the final analysis it is equitable. If such a determination is in progress, you may need your attorney to file a temporary injunction to prevent the disappearance or conversion of property prior to the court's property distribution.

Some factors the court may use in determining what is equitable include:

The Law Offices of Jeanne Ford can help you file your Equitable Distribution inventory, including all assets and debts and, if necessary, can ask the court for an interim distribution and emergency relief to assure that you have the financial resources you need during the separation preceding the divorce. This will help to protect your assets from waste or destruction.

Your pretrial order for property distribution is filed with the court and, if necessary, your Equitable Distribution case will go through the process of mediation before trial to resolve any conflicts. Few cases go to trial but, if yours does, Jeanne Ford will assure that your rights and interests are heard and protected. Often this involves taking depositions, using discovery and interrogatories and finding expert witnesses to testify.

What is Mediation?

Mediation is a dispute resolution option which allows both parties in a domestic dispute to reach a fair settlement with the help of a third, neutral party called a mediator who helps to identify and resolve issues. Mediators can be lawyers, mental health professionals, clergy or other professionals trained in alternative dispute resolution techniques.

Mediators cannot give legal advice and are not a substitute for having a lawyer. The mediator's role is to help both parties communicate and reach agreement while the lawyer's role is to make sure the client's legal rights are protected.

The goal is to reach a mutually acceptable agreement on as many issues as possible and to write a confidential memorandum outlining the terms of the agreement. This is much less expensive than filing a lawsuit. The parties involved can reach a positive agreement that is more customized than the one they might receive from a judge who may not have the time to gain a thorough understanding of the issues. Other benefits are that mediation is:

Mediation involves a mature attitude on the part of both spouses. They must be open to settlement and willing to compromise in finding middle ground. Couples can often reach a positive agreement that is more customized than the one they might receive from a judge. In mediation, each party is responsible for her/her own attorney's fees, as well as half of the mediator's fees.

A mediator, however, is not a substitute for a lawyer. The mediator's role is to help couples communicate and reach agreement while the lawyer's role is to make sure a client's legal rights are protected. In mediation, each party is responsible for his/her attorney's fees, as well as half of the mediator's fees. In North Carolina, couples must attend mediation before a child custody trial and equitable distribution trial.

What is Arbitration?

Because the arbitrator's decision is usually binding and final, the couple must sign an arbitration agreement, giving the arbitrator the authority to make decisions or, in the case of issues that were not resolved through mediation, to narrow the issues. The arbitrator will also define whether the arbitrated award will be binding and thus become a court order.

Both spouses hire attorneys in order to be appropriately advised and represented during the arbitration process which, in many ways, is much like a court hearing although less formal.

The hearing includes opening statements, presentation of the evidence, cross examination and closing arguments.

Arbitration can be as emotionally draining as an actual trial and can also be costly, given that each party must pay for his/her attorney and also the arbitrator. As in a court trial, there is little control over the outcome. But, on the plus side, arbitration may prevent multiple court hearings, is typically faster than the court process and is especially appropriate in complex cases.