Spousal Support and APL

Alimony, spousal support and alimony pendente lite are three similar but different creatures under Pennsylvania. Under Pennsylvania law, the term “alimony” always refers to post-divorce periodic payments, which many other jurisdictions call “spousal support.” In Pennsylvania, “spousal support” and “alimony pendente lite” are functionally interchangeable terms. They refer to periodic payments made during the separation period, usually until the conclusion of divorce litigation. Many other jursidictions apply the label “maintenance” to such payments.

Spousal Support. There are two significant differences between spousal support and alimony pendente lite (APL). First, alimony pendente lite may be  awarded only after a divorce action has been commenced. Spousal support, on the other hand, may be awarded to an estranged spouse prior to the commencement of a divorce action if the parties are separated. Second, there are virtually no defenses to a claim for alimony pendente lite, while a spousal support claim may be defeated by an “entitlement” defense (as in, “he/she is not entitled to receive spousal support”). An entitlement defense may exist if the plaintiff has committed an act which would be valid grounds for divorce, such as infidelity, abandonment or cruelty. Thus, a spouse who has committed adultery may not be entitled to receive spousal support upon separation (but can receive alimony pendente lite once a divorce action is filed).

Amount of Spousal Support. Spousal support and APL are calculated in the same identical way: 40% of the difference between the payor’s net monthly income and the recipient’s net monthly income if there are no minor children. If there are minor children, then the income differential is reduced by the amount of child support, and the result is multiplied by 30%. Typically, the spousal support or APL award is combined with the child support award into an unallocated support order, which is fully taxable to the recipient and deductible to the payor.

Guidelines. Pennsylvania is the only state, and one of the few jurisdictions nationwide, which employs mandatory guidelines to determine spousal support. The significance of spousal support guidelines cannot be overestimated. Pennsylvania’s spousal support guidelines foster predictability and consistency of results, which encourages settlement. The precedential value of reported decisions is improved because decisions are based upon interpretation of the legal guidelines rather than broad discretion.

Pennsylvania’s spousal support guidelines are simple in principle and application. The first statewide guidelines were promulgated in 1989. Previously, each county had its own set of child support guidelines, as required by federal and state law since 1985. From their inception, the statewide guidelines have included a table (based upon the Income Shares model) for calculating child support and a formula for calculating spousal support, with or without children. See, 19 Pa.Bull. 4151, 4179 (9/30/89).

The Pennsylvania guidelines are unlike the guidelines of every other state in that they include a spousal support formula, which the others do not. The theoretical basis for Pennsylvania’s spousal support formula – which is 40% of the spouses’ income differential if there are no children, or 30% of the spouse’s income differential after subtracting child support if there are children – is not stated. Unlike the child support guideline, the spousal support formula was not based upon the Income Shares Model. Perhaps the spousal support formula was based upon the common law principle known as the “one-third rule.” This antiquated rule, derived from the English common law, was an inartful method of allocating income to meet the needs of three groups – husbands, wives, and their children. See Wilder, Pa. Fam. Law Pract. & Proc. § 5-9 at 50-52 (5th Ed.2002).

Pursuant to federal law and Pa.R.C.P. 1910-16-1, the Pennsylvania Supreme Court, through its Domestic Relations Rules Committee, is required to review and revise the support guidelines every four (4) years. For better or worse, the spousal support guidelines have been a unique feature of Pennsylvania’s domestic relations laws for nearly 30 years. The only other jurisdictions known to use spousal support guidelines are Maricopa County, Arizona; Humboldt County, California; Santa Clara County, California; and Johnson County, Kansas. In 1999 and again in 2008, the Pennsylvania Joint State Government Commission proposed the idea of post-divorce alimony guidelines, but those proposals were resoundingly defeated. In 1997, the American Law Institute published Principles of the Law of Family Dissolution: Analysis and Recommendations Proposed Final Draft which contained a proposal for alimony guidelines at § 5.05(ALI 1997).

Alimony. Unlike spousal support and APL, there are no guidelines to determine the amount of alimony under Pennsylvania law. Instead, the Pennsylvania Legislature has published a list of 17 subjective criteria that the courts must consider at 23 Pa.C.S. 3701(b). Traditionally, post-divorce alimony was viewed as a secondary remedy to be awarded only when economic justice could not be accomplished by dividing marital property. Alimony was often awarded for rehabilitation of a dependent spouse’s earning capacity, such as a college degree or re-entry into the workforce. These days, the most compelling criteria seems to be “unmet need,” the amount by which the plaintiff’s budgetary expenses exceed his or her net monthly income. Still, every case is different and highly fact-specific.

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