Spousal Support, Alimony Pendente Lite, Alimony, Counsel Fees, Costs and Expenses

Per 23 Pa. C.S. §3702, in proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses. Reasonable counsel fees and expenses may be allowed pendente lite, and the court shall also have authority to direct that adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.

Spousal Support is available to separated spouses where valid "fault" divorce grounds do not exist.  The amount available to the obligee spouse is 30% of the difference between the parties' monthly net incomes after deducting child support where there are minor children and 40% of the difference between the monthly net incomes where there are no children.  If "fault" grounds do exist, the obligor spouse can challenge the right of the obligee spouse to receive Spousal Support.  The obligor challenges the obligee's entitlement to Spousal Support.

If it appears as though there is a valid entitlement defense issue, you may want to initiate the case as an Alimony Pendente Lite (APL) claim rather than a Spousal Support claim.  The calculations are the same but there are no entitlement defenses to APL.  APL claims are only available pursuant to a pending divorce action.  Obligor spouses may want a claim for support to be framed as an APL claim because a separated spouse who is collecting Spousal Support may have no motivation to file for a divorce and move the case to an ultimate conclusion.  If, however, a spouse files for divorce and seeks APL, they can be compelled to move the case along or risk losing their APL award.

Alimony is governed by 23 Pa. C.S. §3701 and, like Equitable Distribution, is determined by applying a list of factors to the facts of a given case.  There is no formula for determining if alimony is appropriate in a given case or if it is, the amount or duration of an award of alimony.  The factors relevant to an Alimony award are:

1.         The relative earnings and earning capacities of the parties.

2.         The ages and the physical, mental and emotional conditions of the parties.

3.         The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

4.         The expectancies and inheritances of the parties.

5.         The duration of the marriage.

6.         The contribution by one party to the education, training or increased earning power of the other party.

7.         The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.

8.         The standard of living of the parties established during the marriage.

9.         The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

10.       The relative assets and liabilities of the parties.

11.       The property brought to the marriage by either party.

12.       The contribution of a spouse as homemaker.

13.       The relative needs of the parties.

14.       The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party. As used in this paragraph, "abuse" shall have the meaning given to it under section 6102 (relating to definitions).

15.       The Federal, State and local tax ramifications of the alimony award.

16.       Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs.

17.       Whether the party seeking alimony is incapable of self-support through appropriate employment. 

Consider Gates v. Gates, 933 A.2d 102, 2007 Pa. Super 281 (2007).  In Gates, the Superior Court ordered that the duration of an alimony award which was connected to the attainment of majority of the parties' minor son needed to be amended so as to not be viewed as disguised child support by the IRS.

The court also has the power to award counsel fees and costs in the divorce action per 23 Pa C.S. §3702: § 3702. Alimony pendente lite, counsel fees and expenses:

In proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses. Reasonable counsel fees and expenses may be allowed pendente lite, and the court shall also have authority to direct that adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.

23 Pa. C.S. §3323(e):

(e) Costs.--The court may award costs to the party in whose favor the order or decree shall be entered or may order that each party shall pay their own costs or may order that costs be divided equitably as it shall appear just and reasonable.