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. 

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.