Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
With the commencement of the divorce action, one of the martial partners may find themselves in economic distress because of lack of available income. The law makes allowance for the relief of this situation in the statutes dealing with alimony.
What is alimony pendente lite?
Alimony pendente lite is a monthly monetary payment to be made by one spouse to the other spouse while a divorce action is in progress. The purpose is to allow a financially dependent spouse to sustain himself or herself on a basis of equality with the other spouse while maintaining or defending the divorce action.
My spouse has not provided me with any financial assistance for months. Can I get retroactive alimony pendente lite?
Alimony pendente lite awards are retroactive only to the date that you filed your formal legal papers with the Court requesting alimony pendente lite.
How long can I or my spouse receive alimony pendente lite?
Once a person has established their right to receive alimony pendente lite, the right continues until the need no longer exists or until the divorce has been granted and all of the economic issues have been resolved. If an appeal from a divorce decree is taken, the right to receive alimony pendente lite continues until the appeal is finally resolved.
My spouse committed marital misconduct during our marriage. Does this invalidate my spouse’s right to receive alimony pendente lite?
Do I have to be the person who has filed for the divorce in order to be eligible to receive alimony pendente lite?
No. It doesn’t matter if the recipient is the plaintiff or the defendant in the divorce action.
Do we have to be living in separate households for me to be able to receive alimony pendente lite?
No. But continued co-residence is relevant to the situation of the parties and is a factor to be considered by the Trial Court in determining whether a spouse is at such disadvantage in bringing or defending a divorce action as to require an order of alimony pendente lite.
How is the amount of alimony pendente lite to be paid calculated?
In general, an order of alimony pendente lite must be fair. It cannot be confiscatory. Consideration must be given to the payor’s ability to pay as determined by his/her separate property, income or earning capacity and the need of the recipient as determined by his/her separate property, income or earning capacity. The reasonable living expenses of each party must also be taken into account.
As a practical matter, reference is made to the statewide support guidelines. Under these guidelines, the net income of each of the parties is computed. Net income is calculated by subtracting federal, state and local income taxes from gross income. When there are no children involved the alimony pendente lite Order will normally be 40% of the difference between the net income figures. When there are children involved, the child support will first be calculated (see calculation of child support information) and after subtracting the amount of child support from the payor’s net income, the alimony pendente lite will be 30% of the difference between the parties net incomes.
If I don’t work, my income figure used in calculating alimony pendente lite will be zero, right?
Not necessarily. Even though you do not currently have income from employment, it may be determined that you have an earning capacity, or in other words, an income figure that may be assigned to you in calculating alimony pendente lite. This determination is based upon a number of factors such as your educational background, your employment history, how long it has been since you last worked, whether there is any valid reason why you cannot work such as a physical malady or the need to care for small children, your age, health and the job outlook in your area. Sometimes, the Court will not assign you a current earning capacity, but may require you to begin an earnest search for employment which can be later documented for the Court.
Is the standard of living we enjoyed while we lived together a factor considered in an alimony pendente lite award?
Do I have to pay income tax on alimony pendente lite that I receive?
Yes. If you are receiving alimony pendente lite pursuant to a written agreement or Order of Court and if you and your spouse file separate income tax returns, you must report the amount of alimony pendente lite received by you as income and your spouse gets to take a corresponding tax deduction for the amount paid.
If my spouse begins to live with his/her paramour, is my spouse barred from receiving alimony pendente lite?
No. This is because the purpose of alimony pendente lite is to keep the parties on a level financial field during the pendency of the divorce.
How is my alimony pendente lite claim processed by the Court?
Typically, once your claim for alimony pendente lite has been received by the Court, you will be notified of a combined conference/hearing date. On that date, the parties and their counsel appear before a court domestic relations worker at which time they exchange documentation such as pay stubs with year to date information, tax returns, and budgets. If a Consent Order cannot be reached at this level, the parties are then directed to a hearing officer who takes the testimony, receives the evidence and makes a formal recommendation. If neither of the parties file objections to the recommendation within ten (10) days, the recommendation becomes an Order of Court.
Can my alimony pendente lite order be modified?
Yes. If there is a substantial and continuing change in the circumstances of either of the parties.
Can I appeal the alimony pendente lite order to an appellate court?
Not immediately. Alimony pendente lite orders are referred to as Interlocutory Orders (not a final order) and cannot be appealed until your divorce has been concluded.
What is the difference between alimony and alimony pendente lite?
Alimony pendente lite is paid while the divorce is pending and is based on the need of one party to have sufficient financial resources to participate in a divorce proceeding on an equal financial footing.
Alimony is only available after the divorce decree has been entered and is only awarded if necessary. It is based upon need and may be reduced or terminated upon a change in economic circumstances or the remarriage or cohabitation of the recipient. The primary purpose of alimony is to provide one spouse with sufficient income to obtain the necessities of life.
What factors are considered in determining the amount of alimony to be paid?
All relevant factors should be considered. The Divorce Code specifically lists 17 factors to consider. Among the most important of these are:
• The after tax income or earning capacity of the parties;
• The parties’ ages and their physical, mental and emotional conditions;
• The duration of the marriage;
• Contributions by one party to the education or training of the other;
• The financial impact of the fact that the party will be the principal custodian of a minor child;
• The parties’ standard of living during the marriage;
• The educational background of the parties and the time that may be necessary to acquire sufficient education or training to allow a party to find appropriate employment;
• The assets and liabilities of the parties (including those awarded in equitable distribution);
• The contribution of a spouse as a homemaker;
• The needs of the parties;
• The tax ramifications of the alimony order; and
• Whether the party seeking alimony is incapable of self support through appropriate employment.
Is the marital misconduct of my spouse a factor to be considered in an award of alimony?
Yes. Unlike the issue of equitable distribution, marital misconduct is relevant to the issue of alimony. However, experience indicates that this factor is not ordinarily given great weight by the Courts.
Is there a formula to determine how long alimony is to be received after a divorce?
No. One of the most difficult issues on which an attorney counsels his client is how long the client may expect to either receive or pay alimony. This is because the statute that addresses this subject is purposely vague so as to give the Court a wide degree of discretion. The statute provides that the duration of the order may be for a definite or indefinite period of time which is reasonable under the circumstances. The key, therefore, is determining what is reasonable in your particular case. You will need to consult closely with your attorney on this issue.
All of the factors must be reviewed, but with regard to the issue of duration, the following generally seem to be particularly significant:
• the duration of the marriage;
• the ages and health of the parties; and
• the income and educational and vocational histories of the parties.
Can my alimony order be modified or terminated?
Yes. Unless by specific agreement the parties have made their alimony order non-modifiable, alimony can be modified, suspended or terminated if there is a substantial and continuing change in the circumstances of either of the parties.
What happens if my former spouse remarries or cohabits after the alimony order is entered?
Unless the parties have agreed to make the alimony order non-modifiable, the recipient’s right to receive alimony is terminated by the recipient’s remarriage or cohabitation with a person of the opposite sex who is not a member of the family of the recipient. This is unlike the situation with regard to alimony pendente lite. Remarriage or cohabitation does not bar the right to receive alimony pendente lite.
What happens to the alimony order if either party dies?
If the recipient dies, the right to receive alimony ends. If the payor dies, the obligation to pay alimony terminates unless the parties have provided otherwise in an agreement between them.
Do I pay income tax on alimony?
Yes. The recipient reports the amount of alimony received as income and the payor is entitled to an alimony deduction for the amount paid.
From representation in divorce matters with related economic claims to difficult child custody or support disputes, I offer legal advice directed to your specific situation and needs. Contact my office online or call 866-942-0074 to schedule a complimentary 30 minute consultation to discuss your concerns today. My office, located near the Allegheny Valley exit of the Pennsylvania Turnpike and the Harmarville exit of the Route 28 Expressway, provides a convenient environment in which to discuss your family law needs.