NORTH CAROLINA TRIAL JUDGES’ BENCH BOOK

2016 DISTRICT COURT VOLUME 1

Chapter 2 Postseparation Support and

In cooperation with the School of Government, The University of North Carolina at Chapel Hill by Cheryl D. Howell and Jan S. Simmons

This chapter is one of ten chapters in North Carolina Trial Judges’ Bench Book, ISBN 978-1-56011-881-7. Preparation of this bench book was made possible by funding from the North Carolina Administrative Office of the Courts, as administered by the School of Government.

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Chapter 2: Postseparation Support and Alimony

I. Jurisdiction ...... 3 IV. Effect of Bankruptcy ...... 120 A . Subject Matter Jurisdiction ...... 3 A . Bankruptcy Reform Legislation ...... 120 B . Personal Jurisdiction ...... 4 B . Definitions ...... 120 C . Venue ...... 9 C . Automatic Stay ...... 123 D . Application of Foreign Law That Results in a D . Status, Priority, and Payment of Support Claims . . . . . 127 Violation of Constitutional Rights Prohibited ...... 10 E . Dischargeability of Support and Other -Related Claims ...... 129 II. Postseparation Support ...... 10 A . Definition ...... 10 V. Attorney Fees ...... 131 B . Procedure for Postseparation Support (PSS) ...... 11 A . Attorney Fees ...... 131 C . Entitlement to Postseparation Support (PSS) ...... 12 VI. Appeal ...... 142 D . Defenses ...... 13 A . Right to Take an Immediate Appeal ...... 142 E . Judgment or Order (PSS) ...... 14 B . Treatment of Findings of Fact and Conclusions F . Duration of an Order for Postseparation of Law by an Appellate Court ...... 144 Support (PSS) ...... 17 C . Standard of Review ...... 144 G . Modification of an Order for Postseparation Support . . .. 19 D . Effect of an Appeal on Jurisdiction ...... 146 H . Enforcement of an Order for Postseparation Support (PSS) ...... 19 Required Findings Checklists ...... 149 I . Appeal ...... 20 Postseparation Support (PSS) ...... 149 III. Alimony ...... 21 Alimony ...... 151 A . Definitions ...... 21 B . Procedure for Alimony ...... 35 C . Entitlement to Alimony ...... 44 D . Amount of Alimony ...... 45 E . Duration of the Award ...... 59 F . Defenses ...... 60 G . Judgment or Order ...... 65 H . Forms of Payment ...... 78 I . Termination of an Order for Alimony ...... 81 J . Modification of an Order for Alimony ...... 90 K . Enforcement of an Order for Alimony ...... 100 L . Enforcement of Foreign Support Orders ...... 117

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Chapter 2: Postseparation Support and Alimony

I. Jurisdiction

A. Subject Matter Jurisdiction 1. District and superior courts have original concurrent jurisdiction. [G.S. 7A-240; 7A-242.] The district court is the proper court for alimony proceedings. [G.S. 7A-244;Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).] 2. The court of appeals has held that a trial court lacks subject matter jurisdiction over a spouse’s claim for postseparation support if the parties have not physically separated, noting that G.S. 50-16.2A “clearly presupposes that the parties have already separated.” [Baumann-Chacon v. Baumann, 212 N.C. App. 137, 147, 710 S.E.2d 431, 437 (2011) (not addressing alimony because plaintiff appealed only the dismissal of claim for postsepara- tion support).] 3. Subject matter jurisdiction cannot be conferred upon a court by consent, waiver, or estop- pel, and failure to demur or object to jurisdiction is immaterial. [Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471 (court of appeals dismissed case based on lack of subject matter jurisdiction where alimony claim was filed after judgment of divorce; court of appeals addressed issue e