PSS Violation and Alimony

North Carolina Divorce Law Divorce and Separation Answers
1

If your Wife does have her boyfriend move in, even before a final order is complete, you have grounds to end post-separation support now, and cut off her ability to ever receive alimony. You will have to do some work first however. North Carolina law states that co-habitation automatically terminates the support obligation, however a supporting spouse must file a motion with the court, notify the dependant spouse and obtain a court order authorizing termination of the payments on a date certain. This means that you cannot simply stop paying support, you must wait until the court issues an order terminating alimony or post separation support.

With respect to the consent order your wife’s refusal to sign the consent order as is doesn’t make sense, she is attempting to bargain for something that a judge would never award. In other words, you are correct that the removal of a terminating factor it is contrary to the statutes.
As for the proof, this is the tough part. The foreclosure notice is not enough to prove your wife is cohabitating. You must be able to prove your Wife is living with someone by a preponderance of evidence. This means that one would conclude it is more likely than not that your Wife is living with someone after reviewing all the evidence. One document simply is not enough. I would suggest hiring a private investigator to document the activities at the house. Pictures of a man arriving at the home each night and leaving each morning for days on end would be an example of strong circumstantial evidence of cohabitation. The next difficulty is convincing the Court that your Wife is cohabitating, and not simply helping out a friend in need. In South Carolina, there is a set number of days (90) which lead to a presumption of cohabitation, North Carolina has no such magic number, the court will look at all of the evidence presented and make a determination of cohabitation based on all of the evidence presented by both sides.

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

Erin Clarey
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
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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.

2

Yes, the law in NC states co-habitation is grounds for termination of alimony. However, in a consent order, the parties can agree to whatever they wish and the Court will usually approve it.

Your ex now wants to cohabit and collect alimony from you. If you agree, then that’s fine and dandy. Your ex wants you to agree to “double dipping”. Sometimes, I don’t think the co-habitation law is “fair” either because women tend to suffer more financially due to a divorce than men do. But, that’s just the way it is. The law doesn’t want some other man to reap the benefits of a previous marriage. But, it’s ok for the supporting spouse, usually the male, to cohabit while the single ex wife has to make it on her own usually living at a standard at least 25% below her previous standard of living. Go figure.

3

Okay, here is the situation. Mr. and Mrs. Smith’s Absolute Divorce will be final tomorrow. A PSS order was issued on 9/11/08 which said the following:

“That the Plaintiff is hereby ordered to pay, $1200.00 per month, for the temporary post separation support of the Defendant, beginning Jun 1, 2007, and continuing on the first day of
each consecutive month thereafter until further orders of this Court.”

Mr. and Mrs. Smith came to an agreement for equitable distribution due the amount of money they were spending on attorney’s fees. Mrs. Smith drafted their agreement and sent it via email to both her and her husband’s attorneys, which read:

“5. That Robert Smith will pay Susan Smith allimony int the amount of $1200.00/mo. until she dies, she remarries or begins living with an unrelated person of the same sex or opposite sex on a regular basis as if they were husband and wife or for a period of ten years, which ever should come first.”

The Consent Order was drafted by Mr. Smith’s Atty and sent to Mrs. Smith, which read as follows:

“That the Plaintiff has the means and ability to contribute to the support and maintenance of the Defendant, and the Plaintiff has the means and ability to pay at least $1200.00 per month awarded to the Defendant herein, as permanent alimony for the use and benefit of the Defendant, until death, remarriage, co-habitation with a member of the opposite sex or for period of ten (10)years; whichever comes first.”

MRS. SMITH now does not want to sign the consent order. She states that circumstances has changed and that she wants the co-habitation removed from the wording. She says that she wants to rent a room out to the man she has been dating since August 2007. This obviously raised some flags.

While doing some research I found a court home foreclosure document where the boyfriend updated his address from his home being foreclosed on to that of Mrs. Smith’s address in August of 2008.

I am currently overseas and cannot physically check her residence to see if he is just using her address for a mailing address. Is this court document enough to establish a grounds to motion the courts to stop alimony?

Also, wouldn’t leaving out the co-habitation portion be in conflict with the state’s rules for alimony and PSS?

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