NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

 

 

CHAPTER 1152

SENATE BILL 106

 

 

AN ACT TO CONSOLIDATE AND REVISE THE PROVISIONS OF CHAPTER 50 OF THE GENERAL STATUTES RELATING TO ALIMONY AND ALIMONY PENDENTE LITE, AND TO AMEND OTHER STATUTES RELATING TO DIVORCE AND ALIMONY.

 

The General Assembly of North Carolina do enact:

 

Section 1.  G.S. 50-14, G.S. 50-15, and G.S. 50-16 as the same appear in Volume 2A of the General Statutes and the 1965 Cumulative Supplement thereto are hereby repealed.

Sec. 2.  Chapter 50 of the General Statutes of North Carolina is hereby amended by inserting the following Sections:

"§ 50-16.1.  Definitions. As used in the statutes relating to alimony and alimony pendente lite unless the context otherwise requires, the term:

(1)        '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.

(2)        'Supporting spouse' means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A husband is deemed to be the supporting spouse unless he is incapable of supporting his wife.

(3)        'Alimony' means payment for the support and maintenance of a spouse, either in lump  sum or on a continuing basis, ordered in an action for divorce, whether absolute or from bed and board, or an action for alimony without divorce.

(4)        'Alimony pendente lite' means alimony ordered to be paid pending the final judgment of divorce in an action for divorce, whether absolute or from bed and board, or in an action for annulment, or on the merits in an action for alimony without divorce."

"§ 50-16.2.  Grounds for Alimony. A dependent spouse is entitled to an order for alimony when:

(1)        The supporting spouse has committed adultery.

(2)        There has been an involuntary separation of the spouses in consequence of a criminal act committed by the supporting spouse prior to the proceeding in which alimony is sought, and the spouses have lived separate and apart for one year, and the plaintiff or defendant in the proceeding has resided in this State for six months.

(3)        The supporting spouse has engaged in an unnatural or abnormal sex act with a person of the same sex or of a different sex or with a beast.

(4)        The supporting spouse abandons the dependent spouse.

(5)        The supporting spouse maliciously turns the dependent spouse out of doors.

(6)        The supporting spouse by cruel or barbarous treatment endangers the life of the dependent spouse.

(7)        The supporting spouse offers such indignities to the person of the dependent spouse as to render his or her condition intolerable and life burdensome.

(8)        The supporting spouse is a spendthrift.

(9)        The supporting spouse is an excessive user of alcohol or drugs so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome.

(10)      The supporting spouse wilfully fails to provide the dependent spouse with necessary subsistence according to his or her means and condition so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome."

"§ 50-16.3.  Grounds for Alimony Pendente Lite. (a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when:

(1)        It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and

(2)        It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.

"(b)      The determination of the amount and the payment of alimony pendente lite shall be in the same manner as alimony, except that the same shall be limited to the pendency of the suit in which the application is made."

"§ 50-16.4.  Counsel Fees in Actions for Alimony. At any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3, 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."

"§ 50-16.5.  Determination of Amount of Alimony. (a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.

"(b)      Except as provided in G.S. 50-16.6 in case of adultery, the fact that the dependent spouse has committed an act or acts which would be grounds for alimony if such spouse were the supporting spouse shall be grounds for disallowance of alimony or reduction in the amount of alimony when pleaded in defense by the supporting spouse."

"§ 50-16.6.  When Alimony Not Payable. (a) Alimony or alimony pendente lite shall not be payable when adultery is pleaded in bar of demand for alimony or alimony pendente lite, made in an action or cross action, and the issue of adultery is found against the spouse seeking alimony, but this shall not be a bar to reasonable counsel fees.

"(b)      Alimony, alimony pendente lite, and counsel fees may be barred by an express provision of a valid separation agreement so long as the agreement is performed."

"§ 50-16.7.  How Alimony and Alimony Pendente Lite Paid; Enforcement of Decree. (a) Alimony or alimony pendente lite 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 ailmony pendente lite 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 alimony pendente lite 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 sunporting spouse to execute an assignment or 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 alimony pendente lite 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. 1-227 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 alimony pendente lite as in other cases.

"(e)       The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in actions for alimony or alimony pendente lite 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, shall be available in actions for alimony or alimony pendente lite 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 alimony pendente lite as in other cases.

"(h)       A dependent spouse for whose benefit an order for the payment of alimony or alimony pendente lite 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 alimony pendente lite 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)       The wilful disobedience of an order for the payment of alimony or alimony pendente lite shall be punishable as for contempt as provided by G.S. 5-8 and G.S. 5-9.

"(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 alimony pendente lite 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 32 of Chapter 1 of the General Statutes.

"(l)        The specific enumeration of remedies in this Section shall not constitute a bar to remedies otherwise available."

"§ 50-16.8.  Procedure in Actions for Alimony and Alimony Pendente Lite. (a) The procedure in actions for alimony and actions for alimony pendente lite shall be as in other civil actions except as provided in this Section.

"(b)      Payment of alimony may be ordered:

(1)        Upon application of the dependent spouse in an action by such spouse for divorce, either absolute or from bed and board; or

(2)        Upon application of the dependent spouse in a separate action instituted for the purpose of securing an order for alimony without divorce; or

(3)        Upon application of the dependent spouse as a cross action in a suit for divorce, whether absolute or from bed and board, or a proceeding for alimony without divorce, instituted by the other spouse.

"(c)       A cross action for divorce, either absolute or from bed and board, shall be allowable in an action for alimony without divorce.

"(d)      Payment of alimony pendente lite may be ordered:

(1)        Upon application of the dependent spouse in an action by such spouse for absolute divorce, divorce from bed and board, annulment, or for alimony without divorce; or

(2)        Upon application of the dependent spouse as a cross action in a suit for divorce, whether absolute or from bed and board, annulment, or for alimony without divorce, instituted by the other spouse.

"(e)       No order for alimony pendente lite shall be made unless the supporting spouse shall have had five days' notice thereof; but if the supporting spouse shall have abandoned the dependent spouse and left the State, or shall be in parts unknown, or is about to remove or dispose of his or her property for the purpose of defeating the claim of the dependent spouse, no notice is necessary.

"(f)       When an application is made for alimony pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented.

"(g)       When a district court having jurisdiction of the matter shall have been established, application for alimony pendente lite shall be made to such district court, and may be heard without a jury by a judge of said court at any time. Until a district court having jurisdiction shall have been established, application for alimony pendente lite may be made to a resident judge of superior court, a judge regularly holding the superior courts of the district in which the action is brought, any judge holding a session of superior court, either civil or criminal, in the district including the county in which the action is brought or a special judge of superior court residing in the district. Such application in the superior court may be heard in or out of session. If a court other than the superior court has jurisdiction over such application at the time of the application, such jurisdiction shall not be affected by this subsection 50-16.8(g).

"(h)       In any case where a claim is made for alimony without divorce, when there is a minor child, the pleading shall set forth the name and age of each such child; and if there be no minor child, the pleading shall so state.

"§ 50-16.9.  Modification of Order. (a) An order of a court of this State for alimony or alimony pendente lite, 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.

"(b)      If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate.

"(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.

"§ 50-16.10.  Alimony Without Action. Alimony without action may be allowed by confession of judgment under Article 24, Chapter 1, of the General Statutes."

Sec. 3.  G.S. 50-11, as the same appears in the 1965 Cumulative Supplement to the General Statutes, is hereby rewritten to read as follows:

"§ 50-11.  Effects of Absolute Divorce. (a) After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.

"(b)      No judgment of divorce shall render illegitimate any child in esse, or begotten of the body of the wife during coverture.

"(c)       Except in case of divorce obtained with personal service on the defendant spouse, either within or without the State, upon the grounds of the adultery of the dependent spouse and except in case of divorce obtained by the dependent spouse in an action initiated by such spouse on the ground of separation for the statutory period a decree of absolute divorce shall not impair or destroy the right of a spouse to receive alimony and other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the rendering of the judgment for absolute divorce.

"(d)      A divorce obtained outside the State in an action in which jurisdiction over the person of the dependent spouse was not obtained shall not impair or destroy the right of the dependent spouse to alimony as provided by the laws of this State."

Sec. 4.  G.S. 1-440.2 is hereby amended to read as follows: "Attachment may be had in any action the purpose of which, in whole or in part, or in the alternative, is to secure a judgment for money, or in any action for alimony or for maintenance and support, but not in any other action."

Sec. 5.  G.S. 6-21 as the same appears in the 1965 Cumulative Supplement to Volume 1B of the General Statutes is hereby amended by striking out the period at the end of the last sentence thereof, inserting a semicolon in lieu thereof, and adding the words, "provided that attorneys' fees in actions for alimony shall not be included in the costs as provided herein, but shall be determined and provided for in accordance with G.S. 50-16.4".

Sec. 6.  G.S. 1-410(5) is hereby amended to read as follows: "When the defendant has removed, or disposed of his property, or is about to do so, with intent to defraud his creditors. The term 'creditors' shall include, but not by way of limitation, a dependent spouse who claims alimony."

Sec. 7.  G.S. 50-7, subdivision 5, is hereby amended to read as follows: "5. Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome."

Sec. 8.  G.S. 50-5, subdivision 5, is hereby amended to read as follows: "5. If either party has engaged in an unnatural or abnormal sex act with a person of the same sex or of a different sex or with a beast."

Sec. 9.  This Act shall not apply to pending litigation.

Sec. 10.  All laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 11.  This Act shall be in full force and effect from and after October 1, 1967.

In the General Assembly read three times and ratified, this the 6th day of July, 1967.