Alimony represents a payment of support and maintenance paid by the supporting spouse to the dependent spouse. This support can be periodic or a lump sum payment. It can be paid for a specific or indefinite period of time. Alimony can be part of a separation and property settlement agreement, a consent order, or a court order after a trial. The court will consider marital misconduct when evaluating an alimony claim. The court will order alimony for the dependent spouse if the court determines that that the supporting spouse committed an act of illicit sexual behavior during the marriage and prior to separation. On the contrary, the court will bar an alimony claim if the dependent spouse committed such acts prior to the date of separation. If both spouses committed acts of illicit sexual behavior during the marriage and prior to the date of separation, an award of alimony will be in the judge’s discretion.

Also, keep in mind that if you have not secured alimony in a properly executed separation and property settlement agreement prior to the absolute divorce, you must properly file your alimony claim prior to the final divorce being granted or you waive your right to alimony.

Termination & Cohabitation

If a court determines that a dependent spouse receiving alimony pursuant to a court order is cohabiting, alimony terminates. The same is true if “cohabitation” is a terminating event for alimony in a separation and property settlement agreement. The North Carolina statutes define cohabitation as the act of two adults dwelling together continuously and habitually in a private, heterosexual or homosexual relationship, even if not married. Cohabitation is also evidenced by the voluntary mutual assumption of those marital rights, duties and obligations which are usually manifested by married persons, and which include, but are not necessarily dependent on, sexual relations.

The court considers many factors when determining whether one is cohabiting. These factors include the number of overnights spent together, whether it is a monogamous sexual relationship, whether the dependent spouse and third party have a key to other’s residence, whether there is a sharing of living expenses, whether they attend family functions together, and whether they drive each other’s vehicles. In essence, the court looks at whether the spouse and the third party hold themselves out to the public like married persons.

Also, cohabitation with a spouse in which you are separated from, but not divorced, can affect your eligibility for a divorce. Talk with an attorney at Warren & Warren, P.A. to learn more about how cohabitation can affect alimony.