When it’s time for a marital separation or divorce, some spouses may need “alimony pendente lite” (APL) spousal support to help cover household expenses and legal costs. APL is temporary spousal support paid until the divorce is final. In Pennsylvania, married persons (including spouses who are separated) are legally responsible to support each other up to their respective abilities.
The law provides a formula for setting spousal support or APL in Pennsylvania, which is equal to 40% of the differential between the net monthly incomes of the spouses, or 30% if they have minor children. The household expenses are a secondary consideration, which might come into play as grounds for an upward or downward adjustment. An expense-based adjustment is even more likely in a high-income case, where the formula might result in a hardship or windfall.
Prior to the filing of a divorce, a spouse may forfeit the right to receive spousal support by engaging in misconduct or grounds for a fault divorce, e.g., indignities, Kine v. Kine, 568 A.2d 627 (Pa.Super.1989); Morley v. Morley, 424 A.2d 524 (Pa.Super.1981), or adultery, Hoffman v. Hoffman, 762 A.2d 766 (Pa.Super.2000). The misconduct claimed to nullify the support obligation must be proven with clear and convincing evidence. Roach v. Roach, 487 A.2d 27 (Pa.Super.1985); Aiello v. Aiello, 620 A.2d 1230 (Pa. Super. 1992).
These defenses are eliminated, however, when a divorce complaint is filed. In a divorce action, APL may be awarded to allow “the dependent spouse to have equal financial resources to maintain or defend the divorce action where the other party has major assets which are the financial sinews of domestic warfare.” Spink v. Spink, 619 A.2d 277 (Pa.Super.1992); DeMasi v. DeMasi, 597 A.2d 101 (Pa.Super.1991); Krakovsky v. Krakovsky, 583 A.2d 485 (Pa.Super.1990); Prozzoly v. Prozzoly, 475 A.2d 820 (Pa.Super.1984); Bees v. Bees, 386 A.2d 114 (Pa.Super.1978). The same formula applies when calculating APL as when calculating spousal support.
APL and spousal support are intended as temporary remedies to help divorcing spouses meet their budgetary needs during the divorce process. APL and temporary spousal support terminate when the divorce litigation is concluded, which in some cases may include appeals.
The formula for calculating APL and spousal support may be simple. Yet, the courts often hear evidentiary hearings to determine each spouse’s net income or earning capacity, which may be complex. Earning capacity is defined as the realistic (not hypothetical) ability to earn income through gainful employment. A spouse who is not actually working may be assigned an earning capacity consistent with his or her physical and mental abilities, availability, education, and work experience.
An APL or spousal support case may also be complex if a spouse receives income from a business or professional practice, commercial or rental real estate, trusts, investments, or incentive compensation such as bonuses, restricted stock, options, or commissions. These sources of income may be treated as income when it is time to calculate spousal support, or as property to be divided in equitable distribution.
When it’s time to calculate spousal support and APL, you need a legal team with experience to calculate net income and ensure that the formula is tailored to the specific needs of the family. Brian Vertz is recognized nationally as an authority on family law tax and complex income issues. For prompt, effective help with your child support case in Western Pennsylvania, call Brian Vertz at (412) 471-9000 or use our contact form.