9 Things To Know About Spousal Support

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Many couples are aware that they can receive or be required to pay child support if the parties separate.  However, some are not aware of spousal support or understand how it is different from alimony.  Spousal support is definite by Pennsylvania statute as “care, maintenance, and financial assistance” which can be received once the parties separate, but not after the divorce is finalized.  23 Pa.C.S. Section 3103.Alimony is post-divorce support is determined by the analysis of the 17 factors in 23 Pa.C.S. Section 3701(b).  Here a few things you should know about spousal support.  

1. Either spouse can receive spousal support. Gender roles have conditioned many to believe that men are not or should not receive spousal support.  The PA statutes and guidelines do not discriminate on the basis of gender.  If the spouse seeking support is eligible to receive support, they may do so regardless of gender. 

2. You can receive support without filing a divorce complaint. While generally, it is more difficult to prove a claim for spousal support while you are still residing with your spouse, it is not impossible.  You must prove that the payor spouse is not contributing at all to the expenses of the household.  Generally, successful claims are where one spouse has left the marital home.

3. The burden is on the receiving spouse to show they are entitled to support.  The spouse hoping to receive support has the burden of showing that payor spouse either 1) agreed to the separation, 2) that payor’s spouse conduct justified the receiving spouse’s leaving the marital home, or 3) there was some other legal cause to justify a temporary departure.  

4. The amount of support is calculated using the Pennsylvania Guidelines.  The guidelines take into consideration the reasonable needs of the child or spouse seeking support and the ability of payor spouse to provide support.  The guidelines primarily look to the incomes and earning capacity of the parties, and may deviate from the guidelines for unusual needs, extraordinary factors, etc.  A court may take into consideration the length of the marriage when awarding spousal support.  A relatively short marriage (e.g. 2 months) may should not require a spouse to pay support.  There would be injustice to the spouse to pay this.  

5. Spousal support can take a form other than cash and may include the payment of other expenses.  For example, spousal support may include the continued payment of the mortgage on the marital residence, real estate taxes, or even a percentage of a spouse’s reasonable and necessary healthcare expenses.  

6. There are defenses to paying spousal support. If the spouse who would have to pay the support does not believe that dependent spouse is entitled to spousal support, they can assert defenses. The paying spouse would have to show by clear and convincing evidence that the dependent spouse’s conduct provides grounds for divorce. Marital misconduct, lack of consent or good cause for the separation are also defenses to paying spousal support.  The paying spouse can also argue one of the fault grounds. The fault grounds are: 

   1. Adultery

   2. Abandonment without cause for at least one year

   3. Cruelty, including domestic violence, which endangered the life or health of the injured and innocent spouse 

   4. Bigamy

   5. Conviction of a crime and imprisonment for two or more years, and

   6. Humiliating the innocent spouse in such a way that makes the marriage intolerable.

7. Cohabitation can cause spousal support to be terminated. It is important to note that cohabitation can cause the termination of spousal support, but a spouse may be entitled to alimony pendente lite, a different form of pre-divorce support that is based on need and not entitlement and can help the dependent spouse to pay his or her legal costs and maintained themselves until the finalization of the divorce. 

8. Spousal support ends with the grounds are approved, not when the divorce is final.  This is an important distinction.  If the parties are seeking to the divide the marital assets and have not reached an agreement, there will need to be a hearing before a divorce master.  The grounds for divorce (consent of the parties, separation, or one of the fault grounds) must be approved before the assets are divided.  Once the grounds for divorce are approved, the receiving spouse is no longer entitled to spousal support.  This can leave that spouse without enough means to continue to fight for the equitable distribution of the assets, a very important and sometimes expensive part of the process.  Alimony pendente lite, which must have been raised prior to the approval of the grounds, can provide that support. 

9. How spousal support is calculated.  The PA Guidelines provide support a formula for determining the amount of spousal support. 

   1. Where there is no child support claim: The domestic relations section will take 33% of the higher earning spouse’s net income (as determined by the statutes, not their take-home pay), and subtract 40% from receiving spouse’s income.   In an example where Wife’s net monthly income is $6000 and Husband’s income is $3000:  ($6000 x 33%) - ($3000 x 40%) = ($1980 - $1200) = $780.

   2. Where there is a child support claim: Where there is a child support claim in addition to the spousal support claim, the percentages use to run the calculation are lower.  Instead we use 25% of the higher earning spouse’s net income and 30% of the receiving spouse’s income:  ($6000 x 25%) - ($3000 x 30%) = ($1500 - 900) = $600.  The child support obligation and spousal support obligation will be added together to create one Order.

There are many facts, defenses, and deviations to be considered in the entitlement, determination, and calculation of support.  You should always speak with an attorney about the facts specific to your case to determine your rights and obligations. 

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

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The Case of Rosiecki v. RosieckI

In this Superior Court opinion, Rosiecki v. Rosiecki, PA Super 92, Husband tried to terminate his $900 monthly alimony payments to Wife. The previous court found that it did not have the authority to modify the terms of the Husband’s alimony obligation because it was an agreement made by the parties and not court-ordered.  Husband also argued that the court should have held an evidentiary hearing before denying his petition to terminate his alimony payments.

The parties entered into a marital settlement agreement while they were before the Master on December 7, 2009.  The marital agreement provided that Husband is to pay Wife $900 in alimony until such time that all of the four properties in the estate are sold.  The agreement specifically provided the alimony payment would be reduced by specific percentages based upon the sale of the properties with each property having its own specific percentage. Additionally, upon the sale of the each property, Wife would receive 35% of Husband’s net interest in that property. The agreement was incorporated into but not merged into the final divorce decree that entered on January 21, 2010.  

On January 7, 2019, Husband filed an emergency petition for Special Relief to Terminate Alimony and a Request for Hearing. The properties had not yet been sold.  He argued that he could not afford to make alimony payments to Wife because he was out of work and experiencing health problems.  He also argued that he did not understand the settlement as it relates to the payment and/or termination of alimony.  He also believed that the terms in the agreement were incorrect and in error.  He also argued that the agreement did not take into account all of the resources and income of Wife or Husband’s necessary expenses and loss of income. 

WIFE MAKES MOTION TO DISMISS HUSBAND’S PETITION

At the hearing on April 10, 2019, Wife made an oral motion to dismiss the petition.  The trial court directed Wife to file a written motion and ordered Husband to file a response.  In her motion, Wife argued that the trial court did not have statutory authority to modify the terms of the alimony obligation because it arose from the parties’ agreement and not from a court order.  In his response, Husband incorporated the same arguments that he raised in the original petition.  He also requested a hearing and for the taking of testimony and the creation of a record.

The trial court found that the “the terms of the agreement… are clear and unambiguous and provide no language for modification or extension or termination.”  It also provided that the “alimony awarded is a contractual agreement entered into by both parties, who swore under oath understanding of the agreement. Additionally, there is no evidence of fraud, mistake, or duress.  Therefore, this court cannot modify the terms of the agreement.” 

Husband filed a notice of appeal on May 31, 2019 and raised 13 issues. The court reordered as follows:

1. Did the trial court err in failing to find that 23 Pa.C.S. Section 3701 contains a provision for the modification, suspension, or even termination of alimony, and in failing to find that it had both the jurisdiction and power to consider the Emergency Petition for Special Relief to Terminate Alimony and Request for a Hearing Filed by [Husband]?

2. Did the trial court err in granting the [Wife’s] Motion to Dismiss [Husband’s] Petition to Terminate Alimony?

3. Did the trial court abuse its discretion or commit an error of law in failing to permit the calling of witnesses, the presentation of evidence and the cross-examination of witnesses before issuing its May 1, 2019 order?

4. Did the trial court abuse its discretion or commit an error of law where it appears from a review of the record that there is no evidence to support the [trial] court’s findings?

Husband’s argument relies heavily on 23 Pa.C.S. Section 3105 on the effect of agreements between the parties which provides:

(a)  Enforcement.--A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

(b)  Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.

(c)  Certain provisions not subject to modification.--In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

The court found that because the alimony obligation arose from the marital settlement agreement that was incorporated but not merged into the divorce decree it survives the decree and is enforceable at law or equity.  The agreement is governed by the law of contracts unless the agreement provides otherwise. The court goes on to state that the terms of the agreement cannot be modified by a court unless there is a provision in the agreement that specifically provides for judicial modification.  

A settlement agreement is “not governed by statute, but [by] express mutual agreement of the parties.” See Woodings v. Woodings, 601. A.2d 854, 859 (Pa. Super. 1992).  Alimony payments, therefore, are “not to be subject to modification by the court” unless the agreement contains a “specific provision to the contrary.” 23 Pa.C.S. Section 3105(c).  The purpose of marital settlement agreements is to encourage agreements by the parties in that the court will encourage them as written.  See Egan v. Egan, 125 A. 3d 792, 798 (Pa. Super. 2015).  

HUSBAND REQUESTED A HEARING TO PRESENT EVIDENCE AND TESTIMONY.

Husband also argued that the trial court should have held a hearing where he could present evidence and witness testimony.  Aside from attempting to prove his “changed circumstances,” Husband also wanted to show the “intent of the parties to the martial agreement.”  In his emergency petition, Husband outlined the evidence he planned to submit which went to the change in circumstances. Therefore, even if the court accepted his allegations as true, Husband had no legal basis for relief because a marital settlement agreement that does not specifically allow for modification cannot be changed. The trial court also found that the terms were clear and unambiguous and there was no need for a hearing to determine the parties’ subjective intent.  Finally, since Husband did not allege fraud, misrepresentation, or duress he failed to raise any claims that could entitle him to relief.  

The court upheld the trial court’s conclusion that Husband was not entitled to an evidentiary hearing or a modification to the alimony payments.   

The 17 Alimony Factors

When deciding alimony, the court will consider whether it is necessary, how it is to be paid, along with the amount and duration and manner of alimony payments, the courts will consider the following 17 factors:

1. The relative earnings and earning capacities of the parties;

2. The ages and the physical, mental and emotional conditions of the parties;

3. The sources of income of both parties including, but not limited to, medical, retirement, insurance or other benefits;

4. The expectancies and inheritances of the parties;

5. The duration of the marriage;

6. The contribution by one party to the education, training or increased earning power of the other party.;

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child;

8. The standard of living of the parties established during the marriage;

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

10. The relative assets and liabilities of the parties;

11. The property brought to the marriage by either party;

12. The contribution of a spouse as a homemaker;

13. The relative needs of the parties;

14. The marital misconduct of either of the parties during the marriage.  The marital misconduct after the date of final separation shall not be considered except in cases of abuse;

15. The Federal, State, and local tax ramifications of the alimony award;

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs; and

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.  

Alimony may be for either a definite or indefinite period of time. The court shall set forth the reasons for any award or denial of alimony in the Order.  The awards may be modified, suspended, terminated, or reinstituted. Remarriage of the party receiving alimony shall terminate the award of alimony. Cohabitation may also cause the alimony award to be terminated. If you have questions about alimony and how these factors may work in your case, you may contact us at 215-564-1580.

A New Bill Seeks to Change the Way Spousal Support and Alimony Pendente lite is Determined.

House Bill No. 1250 stands to change the way that spousal support and alimony pendente lite (APL) is determined in Pennsylvania.  Instead of using the Pennsylvania Support Guidelines to determine the amount of support subject to certain deviations, House Bill 1250 will focus on the "basic needs" of the petitioning spouse.  Alimony pendente lite is an order for temporary support granted to a spouse during the pendency of the divorce.  Spousal support is defined as care, maintenance and financial assistance. 

The Bill reads, in part, that the court may allow a spouse "reasonable alimony pendente lite or spousal support upon determining the that the income and resources of the petitioning spouse are insufficient to provide for that spouse's basic needs, including the costs of prosecuting or defending the action."  It also provides for an award of reasonable counsel fees and expenses and the authority to award exclusive use of the family home or any other dwelling which is available for use as a residence of either party.  It also may direct adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.  The Bill also provides that a determination of either types of support may not be based solely upon any rule of court setting forth presumptive guidelines for the calculation of support or upon the party's standard of living during the marriage.

The purpose of the change in APL and spousal support, according to the memorandum by Representative Sheryl M. Dozier,  is that the current "guidelines don't even take into account what should be threshold questions: Can the parties independently meet their own needs? Will one party otherwise be disadvantaged in the divorce process if not granted temporary financial support? Over-reliance on a formal that does not take into account the purpose of APL into account, the fact that the payments end only wen the divorce is finalized and the fact that APL awards are unappealable all work together to encourage inefficiency and unfair dealing."  The memo also goes on to state that the use of the guidelines have turned into "a tool for financial coercion." 

The current support guidelines which may be found at Pa. R.C.P. 1910 16-4 were promulgated by the Supreme Court of Pennsylvania.  They allow for a rebuttable presumption of support subject to certain deviations found at Pa. R.C.P. 1910.16-5(b)(9) such as: unusual needs and unusual fixed obligations, other support obligations, relative assets and liabilities of the parties, standard of living of the parties and their children, and the duration of the marriage among other factors. Read all of the factors here. 

The guidelines provide some uniformity and predicability as to how spousal support and alimony pendente lite will be determined.  A focus on the "basic needs" of the spouse will likely require a more detailed hearing process to determine the actual "basic needs" of the petitioning spouse as well as the income of the parties, which may further delay and harm both the dependent and paying spouse. 

House Bill No. 1250 was referred to the judiciary on April 19, 2017.