The parties must still be married when a claim for postseparation support or alimony is filed. They cannot have been divorced when such a claim is first filed, as one of the statutory provisions in Chapter 50 provides that an absolute divorce does not affect the rights of either spouse with respect to any action for postseparation support or alimony pending at the time the judgment for divorce is granted. Our case law makes clear that a party may not, after the time of divorce, seek alimony in an action not in fact already pending at the time of the divorce. A somewhat different rule exists, however, for foreign divorces obtained without personal jurisdiction over the dependent spouse. In such cases, absolute divorce does not impair the dependent spouse’s right to seek alimony under North Carolina law.
I do believe the rental income should be counted as income for your ex. Not 100% positive, but I belive it should be. It’s got to count as something. It can’t just be free money.
No she can not go back now that the divorce is final and reques alimony. I could be mistaken but her moving in with her partner could be considered as cohabitation regardless so she would not be eligible even if she were getting alimony already.
I suggest that you give the new schedule several months prior to filing for reduction of child support due to changed circumstances for a couple of reasons. One, it will allow you and your son time to get used to the situation and make sure that you both want this to be a permanent change, and second, it will also set a patterned schedule that she has agreed to and will make it more difficult for her to “change her mind” when it comes time for modifying child support.
If you know that she is receiving rental income for the home, then yes that would be included as income for her and used in the child support calculations. If she is not reporting this as income then she could have some explaining to do when it comes time for modifying the calculations…
No, she cannot ask for alimony because the divorce has been finalized. If she is receiving income from renting the property then that will be included in the child support calculation, but only the part that she receives in excess of any cost to maintain the property.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
My wife told me she was leaving me for another person (female) in June of 2006 and moved out of our home (she did not move in with her partner)in September of 2006. We went to a mediator and were able to draft an agreement that was mutually agreed to and had it signed in the presence of a notary. We did not seek any lawyers advise or council before or after we signed the mediation papers. In the agreement we agreed to share the custody and monetary expenses of the children 50/50 (2 from our marriage) and that I would pay child support based on the fact that I was making over twice her salary. She also agreed not to ask for alimony. Our divorce was fianlized in June of 2008, once again without using a lawyer. Since the beginning of August 2008 she has moved in with her partner, with my consent, but because her partner has 2 children also, the townhome they live in is very crowded but manageable. Since then my oldest son, who is 13, has told both of us that he doesn’t like going to her home on Monday’s and Tuesday’s (per our agreement) and that he wanted to stay at my home on those evenings. Both of us agreed to this and my son has been with me on those nights for the past two weeks. This is where it is now a sticking point for the child support. I’ve been using the Rosen child support calculator since we signed the mediation papers. Now that I have my one son a lot more, the new calcualtion has reduced the amount by $300 which has caused the boys mom to now change her mind about my son staying with me the extra nights. There is no way my son will go back to her house so that’s not an option. She has threatened me by saying she will ask for alimony if the child support is reduced because of this situation. My question is, does she have the right to now ask for alimony after we are offically divorsed? I have to add that she admitted to me that she had been having an affair with this women for an extended period of time before she told me she was leaving me for this women. I also have one more question. The boys mother is now renting her home she bought after we signed our mediation agreement. Will I be allowed to claim that as income for her in the child support calculator? I believe she is now giving money to her partner to help pay her mortgage.