GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION

CHAPTER 319
HOUSE BILL 270

AN ACT TO MAKE CHANGES IN THE LAWS PERTAINING TO ALIMONY.

The General Assembly of North Carolina enacts:

Section 1.  G.S. 50-16.1, 50-16.2, 50-16.3, 50-16.5, and 50-16.11 are repealed.
Sec. 2.  Chapter 50 of the General Statutes is amended by adding the following new sections to read:
"§ 50-16.1A.  Definitions.
As used in this Chapter, unless the context clearly requires otherwise, the following definitions apply:
(1)	'Alimony' means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
(2)	'Dependent spouse' means 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.
(3)	'Marital misconduct' means any of the following acts that occur during the marriage and prior to or on the date of separation:
a.	Illicit sexual behavior.  For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse;
b.	Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
c.	Abandonment of the other spouse;
d.	Malicious turning out-of-doors of the other spouse;
e.	Cruel or barbarous treatment endangering the life of the other spouse;
f.	Indignities rendering the condition of the other spouse intolerable and life burdensome;
g.	Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
h.	Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
i.	Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
(4)	'Postseparation support' means spousal support to be paid until the earlier of either the date specified in the order of postseparation support, or an order awarding or denying alimony. Postseparation support may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce.
(5)	'Supporting spouse' means 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.
"§ 50-16.2A.  Postseparation support. 
(a)	In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support.  The verified pleading, verified motion, or affidavit of the moving party shall  set forth the factual basis for the relief requested.
(b)	In ordering postseparation 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.
(c)	Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.
(d)	At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support.  When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.
(e)	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.
"§ 50-16.3A.  Alimony. 
(a)	Entitlement. – In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for alimony.  The court shall award alimony to the dependent spouse 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, including those set out in subsection (b) of this section.  If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony.  If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid.  If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.  Any act of illicit sexual behavior by either party that has been condone by the other party shall not be considered by the court.
The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.
(b)	Amount and Duration. – The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony.  The duration of the award may be for a specified or for an indefinite term.  In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(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.
(c)	Findings of Fact. – The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment.  Except where there is a motion before the court for summary judgment, judgment on the pleadings, or other motion for which the Rules of Civil Procedure do not require special findings of fact, the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.
(d)	In the claim for alimony, either spouse may request a jury trial on the issue of marital misconduct as defined in G.S. 50-16.1A.  If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct."
Sec. 3.  G.S. 50-16.4 reads as rewritten:
"§ 50-16.4.  Counsel fees in actions for alimony, postseparation support.
At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.”
Sec. 4.  G.S. 50-16.6 reads as rewritten:
"§ 50-16.6.  When alimony, postseparation support, counsel fees not payable.
		Alimony, postseparation support, and counsel fees may be barred by an express provision of a valid separation agreement or premarital agreement so long as the agreement is performed, by Chapter 31A of the General Statutes, or by a judgment pursuant to G.S. 50-11 or G.S. 50-19."
Sec. 5.  G.S. 50-16.7 reads as rewritten:
"§ 50-16.7.  How alimony and postseparation support paid; enforcement of decree.
(a)	Alimony or postseparation support shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. In every case in which either alimony or postseparation support is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.
(b)	The court may require the supporting spouse to secure the payment of alimony or postseparation support so ordered by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due.
(c)	If the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or postseparation support as provided in subsection (a) or for the securing thereof, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
(d)	The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases.
(e)	The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 and Article 9 of Chapter 110 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases, and for such purposes the dependent spouse shall be deemed a creditor of the supporting spouse.
(f)	The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for alimony or postseparation support as in other cases.
(g)	Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in actions for alimony or postseparation support as in other cases.
(h)	A dependent spouse for whose benefit an order for the payment of alimony or postseparation support has been entered shall be a creditor within the meaning of Article 3 of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
(i)	A judgment for alimony or postseparation support obtained in an action therefor shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past-due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.
(j)	Any order for the payment of alimony or postseparation support is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.
(k)	The remedies provided by Chapter 1 of the General Statutes Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for alimony and postseparation support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.
(l)	The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available."
Sec. 6.  G.S. 50-16.8 reads as rewritten:
"§ 50-16.8.  Procedure in actions for postseparation support.
													When an application is made for postseparation support, the court may base its award on a verified pleading, affidavit, or other competent evidence.  The court shall set forth the reasons for its award or denial of postseparation support, and if making an award, the reasons for its amount, duration, and manner of payment."
Sec. 7.  G.S. 50-16.9 reads as rewritten:
"§ 50-16.9.  Modification of order.
(a)	An order of a court of this State for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. This section shall not apply to orders entered by consent before October 1, 1967.
Any motion to modify or terminate alimony or postseparation support based on a resumption of marital relations between parties who remain married to each other shall be determined pursuant to G.S. 52-10.2.
(b)	If a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate.  Postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse.
As used in this subsection, cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship.  Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.  Nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes.
(c)	When an order for alimony has been entered by a court of another jurisdiction, a court of this State may, upon gaining jurisdiction over the person of both parties in a civil action instituted for that purpose, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes such order for alimony to the extent that it could have been so modified in the jurisdiction where granted."
Sec. 8.  G.S. 50-11(c) reads as rewritten:
"(c)	A divorce obtained pursuant to G.S. 50-5.1 or G.S. 50-6 shall not affect the rights of either spouse with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted.  Furthermore, a judgment of absolute divorce shall not impair or destroy the right of a spouse to receive alimony or postseparation support or affect any other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the judgment of absolute divorce."
Sec. 9.  G.S. 50-13.4(e) reads as rewritten:
"(e)	Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order.  In every case in which payment for the support of a minor child is ordered and alimony or postseparation support is also ordered, the order shall separately state and identify each allowance."
Sec. 10.  G.S. 50-19 reads as rewritten:
"§ 50-19.  Maintenance of certain actions as independent actions permissible.
(a)	Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action for divorce under the provisions of G.S. 50-5.1 or G.S. 50-6 that is filed as an independent, separate action may be prosecuted during the pendency of an action for:
(1)	Alimony;
(2)	Postseparation support;
(3)	Custody and support of minor children;
(4)	Custody and support of a person incapable of self-support upon reaching majority; or
(5)	Divorce pursuant to G.S. 50-5.1 or G.S. 50-6.
(b)	Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action described in subdivision (a)(1) through (a)(5) of this section that is filed as an independent, separate action may be prosecuted during the pendency of an action for divorce under G.S. 50-5.1 or G.S. 50-6."
Sec. 11.  G.S. 52B-7(b) reads as rewritten:
"(b)	If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.  Before the court orders support under this subsection, the court must find that the party for whom support is ordered is a dependent spouse, as defined by G.S. 50-16.1A, and that the requirements of G.S. 50-16.2A regarding postseparation support or G.S. 50-16.3A regarding alimony have been met."
Sec. 12.  This act becomes effective October 1, 1995, and applies to civil actions filed on or after that date.  This act shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.
In the General Assembly read three times and ratified this the 21st day of June, 1995.

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Dennis A. Wicker
President of the Senate

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Harold J. Brubaker
Speaker of the House of Representatives