Spousal Support FAQs
Spousal Support and Alimony obligations can be complicated to understand, especially when changes need to be made. Below are a few of the questions most frequently asked when handling spousal support matters.
Can I stop making alimony payments now that my ex-spouse has remarried?
It depends on how the payments have been structured. If you are making the payments pursuant to a Court Order, you will have to apply for an order of the Court permitting the termination of payments. If the payments are made pursuant to a private Separation Agreement then you can likely cease making the payments automatically upon your exspouse’s remarriage. However, it is important to make sure that your Separation Agreement was not incorporated into a divorce decree making it a Court Order.
Will my ex-spouse have to pay my attorney’s fees if I’m awarded alimony? The Court can order a supporting spouse to pay the attorney’s fees of the dependent spouse if the Court finds that the spouse seeking post-separation support or alimony is 1) entitled to PSS or alimony payments; 2) is the dependent spouse; and 3) does not have the means to pay their necessary costs and expenses. The party requesting that his or her fees be paid by the other spouse must provide evidence to support their claim that he or she is entitled to repayment of attorney fees. This usually includes an affidavit from the attorney detailing the fees incurred by the requesting party and that the party is unable to afford their attorney’s fees and necessary expenses. The amount of the attorney fee award, if any at all, and the payment schedule is in the sole discretion of the judge.
I can no longer afford to make the monthly alimony payments. Can I change the monthly amount?
The ability to modify an alimony award depends on whether the award was set forth in a Separation Agreement or a Court Order. If the terms of the alimony award are set out in a Court Order, the monthly amount may be modified if there has been a substantial change in circumstances regarding the parties’ incomes or needs. The paying party must apply to the Court for a modification of the alimony amount before reducing his or her payments. However, alimony awards set forth in a Separation Agreement are usually not able to be modified or may be modified based on the occurrence of a specific set of circumstances previously agreed to and included in the Agreement. In most cases, the parties must agree in writing to a modified alimony amount when set forth in a Separation Agreement.
If I file for Bankruptcy, do I still have to make alimony payments to my ex-spouse?
Bankruptcy actions do not discharge child support or alimony obligations. Unlike actions for equitable distribution, filing for bankruptcy will not automatically stay, or pause, claims for alimony. Despite a pending bankruptcy filing, one may still file, pursue or modify alimony.
Do I have to claim the alimony payments as income on my taxes?
Previously, a party paying alimony was able to deduct the payments on his or her tax returns. Thanks to tax reform implemented in 2019, obligors are no longer entitled to this deduction. If your Alimony Agreement or Order was entered prior to December 31, 2018, it’s likely that the alimony payments have some tax implications. Unless there is some specific language in your Separation Agreement or Alimony Order that provides such payments are not taxable, you would likely have to claim alimony payments as income on your tax returns. In turn, the party paying alimony is able to deduct the payments from his or her gross income on their taxes.
Attorney Ashley B. Callahan is a NC State Bar Board Certified Specialist in Family Law and a Certified Divorce Financial Analyst®. For more information on spousal support or to schedule an appointment with Ashley B. Callahan, please contact The Callahan Firm.