More on Support and APL

Eligibility criteria. In Pennsylvania, virtually all dependent spouses are eligible for an award of spousal support or alimony pendente lite. To establish entitlement to spousal support, a spouse must demonstrate adequate legal cause to vacate the marital residence. Myers v. Myers (1992). This is a minor obstacle, as “adequate legal cause” has been broadly construed by the Pennsylvania courts. See, e.g., Brotzman-Smith v. Smith (1994); McKolanis v. McKolanis (1994). Additionally, the dependent spouse must not have engaged in marital misconduct rising to the level of valid grounds for a fault divorce. Kine v. Kine (1989). Still, where marital misconduct bars an award of spousal support, the offending spouse may seek alimony pendente lite, to which there are no entitlement defenses. Brown v. Brown (1978). The dependent spouse must simply commence a divorce action and demonstrate a disparity in incomes to qualify for alimony pendente lite under the Pennsylvania spousal support guidelines. The eligibility criteria for an award of spousal support or alimony pendente lite under Pennsylvania law are minimal.

Judicial discretion. In Pennsylvania, the guidelines create a presumption of the proper amount of spousal support, which may be rebutted only by evidence relevant to a statutory list of allowable deviations. Judicial discretion has been increasingly limited since the promulgation of the statewide guidelines in 1989. Once upon a time, the guidelines had to be reconciled with the common law criteria (specifically, Melzer) in determining the proper amount of support in each case. Marshall v. Marshall (1991); Shutter v. Reily (1988); Ryan v. DeLong (1987). Today, the guidelines constitute a presumption from which the courts may not depart except in extraordinary cases. Ball v. Minnick (1994); Mascaro v. Mascaro (2002).

Arbitrary percentage. An income differential formula calculates spousal support by multiplying the difference in the parties’ net incomes by a multiplier. Pennsylvania’s spousal support guideline is a simple formula which multiplies the parties’ income differential by an arbitrary percentage. Where there are no children, the dependent spouse is entitled to 40% of the difference between the parties’ incomes. Where there are children, the spousal support formula is 30% of the income differential after subtracting child support. This version of the income differential method is effective to ameliorate disparities in the parties’ incomes, but fails to consider other factors that may be relevant to the determination of spousal support.

In Pennsylvania, the presumptively correct amount of spousal support or alimony pendente lite may not reduce the obligor spouse’s net income below $550 per month. This rule recognizes that low-income obligors would have little incentive to maintain employment if they were left with less income after paying support than they would receive on public assistance.

Where the lesser-earning spouse is relatively affluent and fully capable of self-support, it may be argued that spousal support is not necessary to ameliorate need or rehabilitate the lesser-earning spouse’s earning capacity. There are an increasing number of marriages in which both spouses ambitiously pursue careers and share equally in the allocation of domestic responsibilities. The award of spousal support in such cases might be contrary to the stated legislative goals of the Pennsylvania Domestic Relations Code and the bulk of the Pennsylvania case law developed over the past twenty years.See, 23 Pa.C.S. § 3102(6) (grant alimony according to actual need and ability to pay); Com. v. Turner (1978)(purpose of spousal support is to afford a reasonable living allowance to the dependent spouse); Spink v. Spink (1992)(APL is based upon need of dependent spouse to have equal financial resources to maintain or defend the divorce action where the other party has major assets which are the sinews of domestic warfare).

Deviations from formula. Where the guidelines are not mandatory but merely a starting point or suggestion for the proper amount of spousal support, perhaps it is not necessary to set forth a specific list of criteria for deviation from the formula. In Pennsylvania, however, the spousal support formula is mandatory, and the court rules provide a list of criteria for deviation from the amount of spousal support which the formula would yield. This feature is important to restore a measure of judicial discretion to the trial court.

Duration of Spousal Support. In Pennsylvania, spousal support continues until the entry of a final decree in divorce.Smith v. Smith (1978). Alimony pendente lite continues until the conclusion of the divorce litigation (which may include the exhaustion of appeals, or at least until the dependent spouse receives sufficient property through equitable distribution to become self-supporting). Hoffman v. Hoffman (1986); Nemoto v. Nemoto, 620 A.2d 1216 (Pa.Super.1993). Spousal support and alimony pendente lite are clearly interim remedies not intended or authorized to continue after the conclusion of divorce litigation.

Child Support. An analysis of the spousal support guidelines would not be complete without examining the interaction of the spousal support guidelines with the child support guidelines. Since 1984, when Congress first enacted federal legislation requiring the states to implement child support guidelines, three basic models for calculating child support have emerged: (1) the Income Shares model; (2) the Percentage of Income model; and (3) the Melson Formula model. The Income Shares model employs a grid or chart which yields the presumptive amount of child support for families at various income levels, based upon a survey of income allocation in an intact family. The Income Shares model is regressive; as family income increases, the proportion spent for the benefit of children generally decreases. Pennsylvania and Arizona are two examples of jurisdictions that employ the Income Shares model.

Spousal support as income in child support calculations. In Pennsylvania, where there are simultaneous spousal support and child support obligations, the court rules specifically contemplate that child support is calculated first, and spousal support is then calculated on the remaining available income after carving out the child support portion.

Tax consequences of spousal and child support orders. If it meets the qualifications of §§ 71 and 215 of the Internal Revenue Code, an award of spousal support (like alimony) is taxable to the recipient and deductible from the obligor’s taxable income. On the other hand, child support is a non-taxable and non-deductible. Pennsylvania, unlike most other jurisdictions, provides for unallocated child and spousal support orders, which are fully taxable to the recipient and deductible from the obligor’s taxable income. Separate spousal support orders and child support orders are taxable and non-taxable, respectively, to the recipients.

If spousal support is calculated before child support, as in most jurisdictions, the proportion of taxable spousal support will be greater than if child support were calculated first. The taxability of spousal support orders may be distasteful to support recipients, but it is an effective way of increasing the total financial resources available to the entire family. Obligors whose incomes are greater usually pay higher tax rates than recipients whose incomes are lower. If obligors can deduct their support payments from their incomes, which are taxed at higher rates, and recipients must claim the support as income, which is taxed at a lower rate, the entire family benefits. The IRS has received less taxes because the income has been moved from a higher tax bracket to a lower tax bracket. The incremental tax savings is available to the family for support purposes.

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