Pennsylvania spousal support and alimony pendente lite

Pennsylvania has three different kinds of spousal money and calls them three different things, which is the first thing to get straight because they are not interchangeable. Two of them run on a formula that fits in one line. The third does not, and that is the one people usually mean when they say alimony.

This chapter is about the first two.

What is the difference between spousal support, APL, and alimony in Pennsylvania?

Section 3103 defines all three, and the dividing lines are dates:

• Spousal support comes before a divorce complaint is filed. Married people owe each other care, maintenance and financial assistance, and that duty exists whether or not anyone has filed for divorce.

• Alimony pendente lite is temporary support during the divorce. It exists so the spouse with fewer resources can actually litigate the case, and it ends when the decree is entered.

• Alimony is support granted in conjunction with the decree. Different standard, different factors, no formula. The alimony chapter covers it.

Spousal support and alimony pendente lite cannot both be in effect at the same time, under Rule 1910.16-1(c)(1). They roll over automatically instead: under Rule 1920.31(d), on entry of the divorce decree an existing spousal support order is deemed an order for alimony pendente lite if any economic claims are still pending.

How is spousal support calculated in Pennsylvania?

By formula, in Rule 1910.16-4(a)(1)(Part B), and it fits on a napkin.

Without dependent children:

33% of the payer's monthly net income − 40% of the payee's monthly net income

With dependent children:

25% of the payer's monthly net income − 30% of the payee's monthly net income

If the result comes out below zero, the obligation is zero.

The payer's figure is not raw net income. It is net income after subtracting any child support, spousal support, alimony pendente lite or alimony the payer owes to children or former spouses who are not part of this action.

The percentages differ because of the children. Where there are dependent children, a child support obligation is being calculated on the same incomes, and the lower spousal percentages leave room for it. Where there are none, the spousal figure carries the whole load.

Which formula applies to a Pennsylvania order?

The 33 and 40, or 25 and 30, percentages apply to orders entered on or after January 1, 2019, the date the federal tax treatment of spousal support changed. Orders entered before then that are still taxable to the recipient are modified under a different formula in Part IV of the same rule, which works on a difference between the parties' incomes rather than on separate percentages.

If you are modifying an order from 2016, ask which formula the domestic relations section is running. It matters.

What is monthly net income in Pennsylvania?

Narrower than you would guess. Rule 1910.16-2(c)(1) lets you deduct exactly five things from gross income:

• Federal, state and local income taxes

• Unemployment compensation taxes and Local Services Taxes

• F.I.C.A. payments, meaning Social Security, Medicare and self-employment taxes, plus non-voluntary retirement payments

• Mandatory union dues

• Alimony paid to the other party

Your mortgage is not on that list. Neither is your car payment, your health insurance premium, your 401(k) contribution if it is voluntary, or your credit card minimum. Those can matter as deviation factors, but they do not come off the top.

Gross income, meanwhile, is broad: Rule 1910.16-2(a) counts wages, salaries, bonuses, fees and commissions, net income from business or dealings in property, interest, rents, royalties and dividends, pensions and all forms of retirement, income from an estate or trust, Social Security disability and retirement benefits, workers' compensation, unemployment compensation, and other entitlements including lottery winnings, tax refunds, insurance settlements and verdicts. It is ordinarily based on at least a six-month average, which is why the disclosure rules keep asking for six months of pay stubs.

Where do you file for spousal support in Pennsylvania?

Not in the divorce. Under Rule 1920.31(a)(2), a divorce complaint may not include claims for child support, spousal support or alimony pendente lite. Those are raised in the domestic relations section by filing a separate complaint under Rule 1910.4.

The domestic relations section charges nothing for it. Subdivision (c) of that rule says it may not require a filing fee to commence or modify a support action, and subdivision (d) bars the judicial district from adding fees of its own without statutory authority.

What happens next is a conference rather than a hearing. A conference officer takes the documents, calculates a guideline amount, and recommends it. If you agree, the officer writes up an order for both of you to sign and sends it to the court. If you do not, the case moves to a hearing.

Does claiming spousal support have a deadline in Pennsylvania?

Yes, and it is absolute. Rule 1920.31(c) says failure to claim spousal support, alimony, alimony pendente lite, counsel fees, or costs and expenses before the entry of a final decree is a waiver of those claims, unless the court expressly provides otherwise in the decree.

Child support is the exception the same rule carves out: not claiming it before the decree does not bar a separate action afterward.

That asymmetry is why the filing chapter argues for raising every spousal claim in the pleadings even if you are not sure you want it. Raising a claim you later withdraw costs a filing fee. Failing to raise one costs the claim.

What is the self-support reserve in Pennsylvania?

$1,255 per month, and it is a floor rather than a factor. Rule 1910.16-2(e)(1) defines the self-support reserve as the minimum monthly net income reserved to the payer to meet basic needs.

After the formula produces a number, the support obligation may not push the payer's monthly net income below it. If it would, the officer adjusts the obligation downward by enough to leave the reserve intact. Where a child support obligation is running alongside, the combined obligations get the same treatment.

If the payer's monthly net income is already at or below $1,255, the officer may award support only after considering the parties' actual financial resources and living expenses.

Can a Pennsylvania spousal support order be changed?

Yes, on a petition that says why. Rule 1910.19(a) requires the petition to specifically aver the material and substantial change in circumstances it rests on. Two unusual things also count as one: a new guideline amount produced by revised support guidelines, and additional income or assets discovered through automated methods or otherwise.

The court may also deviate from the guideline figure entirely. Rule 1910.16-5(b) lists nine deviation factors: unusual needs and unusual fixed obligations, a party's other support obligations, other household income, the child's age, the parties' relative assets and liabilities, medical expenses not covered by insurance, the standard of living, the duration of the marriage in a spousal support or alimony pendente lite case, and other relevant and appropriate factors including the child's best interest.

Deviating takes findings. The officer has to state the calculated obligation, the reason for the deviation, the findings of fact justifying it, the amount, and, in a spousal support or alimony pendente lite case, the obligation's duration.

That last item is where the length of the marriage does its work. Under Rule 1910.16-1(c)(2), the trier of fact considers the duration of the marriage, measured from the date of marriage to the date of final separation, in setting how long a spousal support or alimony pendente lite order runs. A two year marriage does not produce a five year order.

Who cannot get spousal support in Pennsylvania?

A spouse convicted of a personal injury crime against the other. Under section 3702(b), that party is not entitled to spousal support or alimony pendente lite unless the court finds an order necessary to prevent manifest injustice, and any amount the injured party paid after the offense but before the conviction is recoverable on petition. The grounds chapter lists which crimes qualify.

Payments themselves run through the county. Under section 3704, ordered support goes to the domestic relations section of the court that issued the order or of the court where the recipient lives, which keeps the payment record and notifies the court whenever the payer falls 30 days behind.