Separated or Divorcing? Here Are the Basics of Spousal Support You Need to Know.
In Pennsylvania, there are three types of financial support which one spouse may be obligated to pay the other spouse as part of a divorce proceeding or following a separation – spousal support, alimony pendente lite (APL), a latin phrase meaning "alimony during the litigation", and post-divorce alimony, also referred to, simply, as alimony.
Spousal support and APL may be awarded following separation and during the divorce process. They are both based on the Pennsylvania Support Guidelines; however, only one type of support, not both, may be awarded. Pursuant to the Guidelines, the payor spouse will owe the "presumptive minimum" amount of support to the payee spouse calculated as follows: 40% of the difference between their net incomes if they have no minor children or 30% of the difference between their net incomes if they have minor children and the payee spouse is receiving child support from the payor spouse.
There are two main differences between spousal support and APL. First, spousal support may be awarded following separation whether or not there is a divorce action pending. APL, on the other hand, will only be awarded if a divorce action is pending. The second difference between these two types of financial support is that the payor spouse may raise "entitlement defenses" to a claim for spousal support, whereas, for APL, entitlement defenses are not available to the payor spouse. Examples of entitlement defenses include, but are not limited to desertion, adultery, indignities, cruel and barbarous treatment committed by the payee spouse.
The first step in calculating spousal support or APL is to determine each spouse’s net income, which may differ from the spouse’s take-home pay. The only deductions from gross income permitted for support purposes are those which are mandatory, including but not limited to income taxes, mandatory retirement contributions and union dues. Any voluntary deductions, such as contributions to a 401(k) plan, are not permitted deductions for support purposes.
Net income is typically based on the last six (6) months of income. However, there may be reasons that a spouse’s net income within the six-month timeframe should not be used for purposes of calculating support. If a spouse typically receives a bonus in a month that is not included in that six-month timeframe, the bonus may be included in net income. Or a spouse may be laid-off each year for a certain period of time, during which time he or she receives unemployment compensation. Using a combination of the earned income and unemployment compensation may be a more accurate picture of the spouse’s financial situation. If one spouse believes that the net income of the other spouse does not accurately reflect the other spouse’s earning capacity, an argument can be made that the spouse should be imputed an earning capacity for support purposes. Once the parties’ net incomes or earning capacities are determined, they are entered into a formula per the foregoing calculation.
The third type of financial support is post-divorce alimony, which is awarded in accordance with factors enumerated in the Divorce Code. Depending on the circumstances of a case, the amount of spousal support or APL may continue as an award of alimony following the divorce, the amount may change, or the support may terminate upon entry of divorce decree or the end of divorce litigation. The factors set forth in the Divorce Code must be analyzed to determine whether alimony should be awarded following the divorce, and the amount of the alimony to be awarded.
The information provided is intended to be a broad overview of financial support of a spouse in Pennsylvania. Each situation presents its own set of facts. If you are interested in discussing your situation with a knowledgeable attorney who has years of experience representing clients in support and other family law proceedings, please feel free to contact me at 610-323-7464.