Divorce and Family Law

Divorcing couples may agree on what is in the best interests of their children and be able to work out custody and visitation issues.  They may even be able to agree upon equitable distribution of their retirement accounts and personal effects. But for many, the issue of spousal support becomes a sticking point.

“Pendente lite” support is temporary support that is awarded according to a statutory formula until the parties can agree on an amount or more information is gathered to justify an award of a different amount at the conclusion of the case. The statutory formula is a guideline, does not take taxes into account, and only applies to cases where the parties’ combined monthly gross income is less than $10,000.00.

The current pendente lite formula used in cases where minor children are involved is: 26% x Payor’s Income – 58% x Payee’s Income. Where no minor children are involved, the formula is 27% Payor’s Income – 50% x Payee’s Income. The court may find that a party is voluntarily unemployed or underemployed and may impute income to that party. Where both child support and spousal support are payable, the spousal support is calculated first, the parties’ incomes are adjusted accordingly, and the resulting incomes are used to calculate pendent lite child support.

Where the parties’ gross monthly income exceeds $10,000, a court considers several statutory factors in awarding support such as the parties’ obligations, needs and financial resources; the standard of living established during the marriage; the duration of the marriage; the age, and physical and mental condition of the parties and the effect these factors have on employment; the monetary and nonmonetary contributions of each party to the well-being of the family; the division of the marital property; the earning capacity of the parties; the decisions regarding employment, education and parenting arrangements during the marriage and their effect on earning potential; and any other relevant factors such as tax consequences and the causes of the dissolution of the marriage.

When a court is asked to determine spousal support, it will first decide if the party seeking the support is eligible to receive it. For example, a court might determine that an adulterous spouse, or a spouse who abandoned the marriage or was abusive, is not entitled to support. The court will examine the factors noted above in determining a final support obligation as well as the duration of the obligation.

Spousal support is no longer deductible by the payor or taxable to the payee and is typically modifiable upon a material change in circumstances, but it’s best to make that clear in any agreement or order. A material change in circumstances must be involuntary—a payor spouse cannot simply quit his or her job and ask for the obligation to be modified.  A court may also find a material change in circumstances if the payee spouse gets a higher paying job. A support obligation terminates if the payee spouse remarries, and also if he or she has been engaged in a relationship analogous to marriage for one year unless the parties have agreed otherwise or termination of the support would be unconscionable.

The issue of spousal support can be tricky and emotional, and coming to an agreement on spousal support involves consideration of other factors affecting the parties’ separation and divorce such as child support and equitable distribution. As a starting point, divorcing couples can consider the factors noted above that a court would use in determining spousal support as well as any other factors they think are important in coming to their own agreement regarding spousal support.

Amy Kowalski employment law PLDR


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