WYOMISSING-READING-BERKS COUNTY SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE (“APL”) ATTORNEY
Attorney Jana R. Barnett represents persons in cases involving spousal support and alimony pendente lite (“APL”).
SPOUSAL SUPPORT AND ALIMONY PENDENT LITE (“APL”)
Overview
Financially dependent spouses may be able to receive either spousal support or alimony pendente lite (“APL”). Although the amounts paid will be the same, there are important differences between these two types of support.
The correct calculation of both spousal support and APL depends on an accurate understanding of net monthly income, as well as reasons why the presumptive minimum amount of support might not be appropriate in a given case.
Spousal support and APL may be modified from time to time.
Divorce Action
The Divorce Code makes married people liable for supporting each other. However, it is not necessary for a divorce action to be filed in order for a dependent spouse to receive support. The dependent spouse can file a Complaint for Support with the Domestic Relations Section regardless of whether either spouse has filed for divorce, because the purpose of spousal support is to provide a reasonable living allowance to the spouse requiring support.
In contrast, APL is intended to level the financial playing field between the financially dependent and independent spouses during the litigation. Therefore, a divorce action must be filed before the financially dependent spouse can seek APL. It does not matter which party filed the divorce action. Furthermore, the financially dependent spouse is expected to pursue the divorce in a timely manner.
In short, spousal support is a duty. APL is an equitable remedy.
Living Together
For purposes of a divorce, parties can be separated even if they live in the same house.
For purposes of support, if the husband and wife live in the same house, and the financially independent spouse pays the necessary expenses of the financially dependent spouse, no support should be ordered.
APL may be awarded even if parties are living in the same house.
Marital Misconduct
Persons committing marital misconduct during the marriage or after separation may jeopardize the entitlement to receive spousal support. One factor which the court will consider is whether both parties engaged in marital misconduct. Another is whether the innocent spouse condoned the misconduct.
Examples of behavior which might be construed as marital misconduct are adultery during the marriage, post separation cohabitation with a paramour, and moving out of the marital residence without adequate legal cause.
“Fault” is not a bar to receiving APL.
Support Guidelines
The support and APL calculated pursuant to the Support Guidelines are presumed to be the correct amount of support. Correctly determining net monthly income is key.
The parties can ask that there be an upwards or downwards deviation and adjustments from the Guildelines amount. Examples of cases where upwards deviations may be appropriate are where there are unusual expenses that must be paid. Examples of cases where downward deviations may be appropriate are where the dependent spouse’s earning capacity is greater than his or her income, and where the dependent spouse has other financial resources.
Monthly Net Income
Income is defined by both statute and rules. In addition to wages reported on income tax returns, attention should be paid to income such as corporate and partnership distributions, annuity income, automobile expenses, bonuses, capital gains, charitable or political contributions, commissions, depreciation, disability income, dividend income, earning capacity, entertainment/meals, gift income, inheritance, life insurance premiums, malpractice insurance premiums, insurance proceeds, interest income, loan payments, proceeds of loans, sale of marital property, military housing allotment, pension benefits, pension contributions by employers and employees, personal injury lawsuit proceeds, rental income, severance pay, retained earnings, Social Security benefits, Social Security Disability benefits, Supplemental Security Income, stock options, tax refunds, trust income, unemployment compensation benefits, unreimbursed employee expenses and workers compensation benefits.
Taxability
Spousal support and APL are deductible to the paying spouse.
Where orders of spousal and child support are unallocated, the payment is deductible from the payor’s taxable income and includable in the payee’s taxable income.
Modification
Both spousal support and APL may be modified. The petition for modification should explain the changes upon which the petition is based. The change should be material and substantial. Grounds for modification may include a revision of the support guidelines, involuntary reduction in income, the obligor’s retirement, increase in expenses of the obligor or obligee, job loss, incarceration, medical conditions rendering either the obligor or obligee unable to work.
APL should terminate when the divorce is final. For purposes of APL, a divorce is not final until a final order is entered. Thus, for example, APL will be payable during an appeal.
