By Donna Cheswick
Many of my clients are confused about the role of alimony in divorce and its impact on their financial circumstances. Some have expressed the view that alimony is not available in Pennsylvania, while others assume that it is an entitlement. This article identifies common situations where alimony or some form of support might be awarded to a spouse.
Alimony is generally available in Pennsylvania in two forms: alimony pendente lite (APL), which literally means pending litigation, so this form of alimony is available until property issues are decided and a divorce decree is issued; and, true or permanent alimony which might be awarded by a Court after a divorce decree is issued. In addition, spousal support can be awarded to a disadvantaged spouse prior to the filing of a divorce complaint when both spouses are legally separated, which usually means they are physically separated and living apart, but there is no pending divorce case. In deciding the issue of whether and to what extent spousal support or APL will be awarded, Pennsylvania courts will generally follow an established formula or guidelines that takes into consideration, among other things, the earnings or earning capacities and other support obligations of the parties. The Court can deviate from these guidelines for compelling reasons based on the particular circumstances of the parties, and both spousal support and APL Order are modifiable based on the changed circumstances of the parties.
Once a divorce decree has been issued and the matters of property distribution or division are resolved, any new or continuing support obligation to a spouse would be called “alimony”. According to Barbara Ann Mohajery, a family law attorney with Mohajery & Associates, PC, “alimony does exist in Pennsylvania; however it is not an automatic entitlement. Eligibility depends upon the criteria set forth and each case is decided based upon its own merits.”
Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.” In order for a court to determine if a spouse is eligible for alimony, it will generally base its decision on the due consideration of specific criteria:
1. The financial resources of the spouse seeking alimony, including both separate and community property and liabilities;
2. The spouse’s ability to meet his or her needs independently;
3. The education and employment skills of the spouses;
4. The time necessary for the supported spouse to acquire sufficient training or education to enable him or her to find employment;
5. The availability and feasibility of that training;
6. The duration of the marriage;
7. The age, employment history, earning ability, and physical and emotional condition of the spouse seeking alimony;
8. The ability of the supporting spouse to meet their own needs and make any child support payments;
9. Excessive or abnormal expenditures, concealment or destruction of any property by either spouse;
10. The comparative financial resources of the spouses, including medical, retirement, insurance or other benefits, and any separate property;
11. The contribution of one spouse to the education, training or increased earning power of the other spouse;
12. The contribution of either spouse as homemaker;
13. Any marital misconduct of the spouse seeking alimony;
14. Whether the party seeking alimony lacks sufficient property to provide for his or her needs;
15. The efforts of the spouse seeking alimony to obtain self-support skills while the divorce is pending or during any separation; and
16. Property brought to the marriage by either spouse.
17. Any tax ramifications;
In lieu of such a determination by the Court, Attorney Mohajery stated that “certainly any couple (with guidance from their attorneys) can negotiate and agree to alimony for a specific (i) dollar amount; (ii) length of time; and/or (iii) type of payment as part of their divorce settlement. In many instances there is one party who feels entitled to a payment and one party who does not agree, although couples can, and do, frequently come to an agreement.”
However, as a caveat, even negotiated agreements may be reviewed by the Court to ensure that they are fair and do not contain provisions that are inequitable or proscribed by law. As a final note, absent an agreement to the contrary, alimony may automatically terminate upon the occurrence of certain events, such as where the obligee spouse remarries or co-habitates, if either spouse dies, by lapse, or upon the occurrence of enforceable events in an agreement. When these concepts are fully understood, clients are better prepared to consult with me about their financial condition incident to divorce.
Donna Cheswick is an Assistant Vice President – Financial Consultant and Certified Divorce Financial Analyst, with BPU Investment Management Inc. She can be reached at 724-837-1130.
Contributions by Thomas G. Eddy, Esq., General Counsel, BPU Investment Management Inc.
The opinions expressed are those of the author and not necessarily those of BPU Investment Management, Inc. or its affiliates. The material is solely for informational purposes and is not intended to provide legal to tax advice, nor is it a solicitation of an offer to buy any security or instrument or to participate in any trading strategy. Individuals are directed to always consult with an attorney for legal representation and guidance based on their particular circumstances. The accuracy and completeness of this information is not guaranteed.