Alimony, spousal support and alimony pendente lite are three separate though similar and sometimes confused concepts which can result in one spouse in Pennsylvania having to pay support to the other spouse.
The word “alimony” means periodic payments from one former spouse to another former spouse after a divorce. Many people refer to this as spousal support but spousal support is actually support given from one spouse to the other during the marriage. Alimony is the payment of support after divorce.
Spousal Abandonment in PA
“Spousal support” is the payment which one spouse may be ordered to make to an estranged spouse (before or after the divorce commences). Spousal support may be defeated by an entitled defense; that is a defense where the Defendant proves that the Plaintiff committed fault grounds for divorce such as abandonment or adultery.
“Alimony pendente lite” (or APL) is support while a divorce is pending and an estranged spouse who has not yet filed for divorce cannot obtain APL. APL is support to allow a spouse to defend him or herself in a divorce proceeding with a more economically advantaged spouse and, thus, entitlement defenses such as adultery or abandonment may not be successfully proved to defeat a claim for APL.
The calculation of support, whether spousal support or APL is a complicated process. Pennsylvania has a mandatory guideline to determine spousal support (and which is sometimes used for other kinds of support) but the guideline is just a starting point. The guideline compares, in a uniform way, the earning capacity of one party in a marriage to the other. Typically, 40% of the difference between the net pay of the obligor spouse’s and the recipient or obligee spouse’s is used if there are no minor children. When minor children are involved, the income of the obligor spouse is reduced by any amount of child support and spousal support is based on 30% of the resulting difference.
Unlike spousal support and APL, there is no specific guideline to calculate the after divorce alimony which may be paid in Pennsylvania. The state has adopted a statute that sets forth various criteria to be used in the determination of alimony. Usually, alimony is only awarded where economic justice requires the award of alimony and the dividing of marital property does not satisfy justice. Alimony is often awarded for the rehabilitation of a dependent spouse until earning capacity can be established, education can be completed or reentry into the workforce can be accomplished. An older, dependent spouse or medically dependent spouse, or one caring for young children may also need alimony. Because there is no specific guideline, alimony is more fact dependent. Typically the time for alimony will not exceed the guideline amount for support.
It should be noted that part of the art of calculation of support is determining what is gross income and what is net income and determining whether or not the obligor and obligee spouse are reasonably earning what they should be earning (that is earning capacity). Additionally, support can be modified based on special circumstances such as medical conditions resulting in large expenses, other special needs and very high mortgage payments.
In most cases the support obligation, including alimony, should not last longer than the marriage which helps protect the higher income spouse in a short-term marriage.
In an unallocated spousal support and child support order, that is an order which does not differentiate which part of the support is for the child and which part is for the spouse, the recipient spouse does not pay any income tax on the support received. When an order is allocated or when there is a spousal order but not child support order, the recipient spouse must report the spousal support, alimony or APL as income for income tax purposes and the paying spouse can deduct the same from his or her income for tax purposes.
Support orders are usually calculated back to the date when the order is applied for. Thus, even though it may take several weeks or even months to get to a support conference, determine the calculated amount of support to be paid, if support is due and have an order promulgated by the Court, the obligor spouse will be required to pay back support from the date of the original filing. The obligor spouse is given credit for support payments made between the filing of the support petition and the calculation of the amount due but it is important that positive proof of the same be provided.