Alimony FAQ Page

Fiind Answers to Your Questions

Alimony is payment made by one party to the other after divorce, either by court order or by mutual agreement. That being stated, there are many factors that can dictate alimony and it is one of the more confusing post-divorce related issues. If you are looking for some clarity concerning alimony, our Pittsburgh divorce attorney has answered a number of commonly asked questions.

Check out our answers below to learn more.

When is alimony awarded? - Pursuant to 23 Pa.C.S. Section 3701, the Court may award alimony, "as it deems reasonable," if it finds that alimony is necessary. The law states that post-divorce alimony "is a secondary remedy…available only where economic justice and the reasonable needs of a party cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill."

The court looks at 17 factors to determine whether alimony is necessary:

• (1) The earnings & earning potential of the individuals involved.
• (2) The age and condition of each party (mental, emotional, and physical).
• (3) The Income source for each person, which includes, but would not be limited to: insurance, retirement, medical, and other relevant benefits.
• (4) Inheritance and expectancy of each party.
• (5) The Length of their marriage.
• (6) Contributions made by one to the training, education, or potential earning increase of the other.
• (7) The earning power, expenses or financial obligations of one will be affected by serving as guardian to a minor.
• (8) Standard of living established over the course of the marriage.
• (9) The education of both parties, as well as the necessary time needed to gain training or education allowing the one requesting alimony the opportunity to acquire sufficient employment.
• (10) Liabilities and assets of each party.
• (11) The property owned prior to marriage.
• (12) Contributions made by a spouse as homemaker.
• (13) Comparable needs of each party.
• (14) Marital misconduct (if any) by either party within the time-span of the marriage. Furthermore, marital misconduct by either party from the date of final separation is not considered by the court in determining alimony, unless the court decides to 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) Local, State, and Federal taxation of awarded alimony.
• (16) A party that is pursuing alimony who does not have reasonable property which does include, but is not limited to, any distributed property in correlation with Chapter 35 (rights to property).
• (17) Determining if the one pursuing alimony is capable of supporting them-self through employment

Before filing for divorce, you should carefully evaluate your financial circumstances, what yours and your spouse's future financial needs will be and who will more likely be able to support the other. If enough property is given to a divorcing spouse, then that property could fulfill the spouse's economic needs without the financial need of alimony.

What types of alimony are there? - In Pennsylvania, three types of support orders can be given: spousal support, alimony pendente lite and alimony. Spousal support is support paid before parties separate, whereas alimony is support paid after the parties separate. Alimony pendente lite is a temporary order for support after the divorce is filed, but before it is finalized. A spousal support and alimony pendente lite order cannot be in place at the same time.

A common type of alimony in Pennsylvania is rehabilitative alimony. This is when one spouse gets financial assistance for only a few years after the divorce and only until he/she is able to get back on their feet financially. This type of alimony is often awarded so that the other spouse can go back to school or obtain the necessary skills to be competitive in the job market.

The other type of alimony our firm has often seen in Philadelphia is permanent alimony. This spousal support is usually awarded when one party cannot return to work due to age or physical or mental illness. Alimony is generally not permanently awarded in Pennsylvania.

How long can I expect to receive alimony? - In Pennsylvania, there is no set time for paying alimony, it is purely discretionary. After the Court has decided that alimony is reasonable and necessary, it is up to a judge's discretion to determine the length of time you or your spouse is awarded alimony.

Depending on how long you were married for, how long it might take you or your spouse to find employment and other such events (retirement, your child graduating from high school, etc.) could determine how long you receive or have to pay alimony.

An alimony order will come to an end under the following conditions:

• The spouse receiving support (payee) remarries
• The payee is living with a member of the opposite sex who is not a relative
• The spouse paying alimony dies and the order does not state that payments will continue
• The payee passes away

How much alimony will I get? - If you go the route of litigation, there are too many variables at play to answer this question. Depending on yours and your spouse's standard of living during your marriage, your earning capacities, your assets and your expenses, will dictate how much alimony you receive or will have to pay.

If you choose to pursue mediation, however, you and your spouse will be able to decide together whether alimony applies and what is a fair amount to pay and for how long. This can be a good option if you are working within a budget and need to determine what you can reasonably afford. This is accomplished fairly when each individual prepares a post-divorce budget of expenses and determines what he/she needs to live on and what the payor can afford.

These agreements, however, are not part of the divorce until the Court approves them and makes them part of the divorce decree. After this happens, an alimony agreement has the same weight of law as an alimony amount determined by the Court (according to Pennsylvania Consolidated Statutes section 23-3701(f)). The Court will not allow an award of alimony that would divert twice as much income to the recipient as the payor.

If I am a man, will I not be awarded any alimony, even if my wife makes more than me? - Traditionally, alimony was paid by a husband to his former wife, but since the 1970s, the Supreme Court ruled against gender bias in alimony awards. In 2006, the percentage of alimony recipients who are male rose 3.6%. Now that the stigma for asking for alimony has faded, family law attorneys across the country report that males have become more aggressive in pursuit of alimony awards.

In general, females may be more likely to be granted alimony then men, because a large male-female income disparity still exists in the United States. In 2010, the median income of full-time, year-round workers was $42,800 for men and $34,700 for women. Nonetheless, gender is not one of the factors considered by Pennsylvania courts before alimony is awarded. If you are not given any property that could make alimony unnecessary, you most likely will be awarded alimony, considering that one of the primary factors the court considers before awarding alimony is, "the relative earnings and earning capacities of the parties."

My ex-spouse is not paying me the full amount he owes me, what should I do? - If the other party has repeatedly violated court orders, you should address this issue. Contempt of court is a very serious matter, and the payor could have filed for a modification of custody if he/she could not make the payments. If the problem cannot be resolved by negotiation or by changing the current order, you may need to file a Contempt Petition and take the matter before the court. Keep in mind that such an order can carry very harsh penalties for the other party. If a former spouse fails to pay alimony commitments, he/she can face wage garnishment, can have their property seized, or could be forced into a security agreement (according to Pennsylvania Consolidated Statutes section 23-3703).

To file a complaint and petition, you must do the following:

• Take your papers to the Court Administrator's Office (you should have two copies, one for you and one for the defendant)
• Present the papers to the Court Administrator's Office
• The Court Administrator's Office will submit the necessary forms to the Judge and ask for a hearing to be scheduled
• Keep all copies, receipts, notices, sets of instructions, etc. with you so that you can take this with you when you attend the hearing
• You can then serve one copy of the Order and Notice and the Petition for Contempt upon the defendant

We do not advise filing for a contempt petition unless the other party's behavior has been particularly egregious, as this legal action can create even more difficult conditions. Often other attempts can be made by you and a divorce lawyer to convince/help the other party to live up to his/her agreement.

Civil contempt occurs when an individual disobeys a court order. Evidence must be presented to a judge to prove the contempt. A civil contemnor can be fined, jailed or both. This is not meant as a punishment, however, but as a means of convincing the contemnor to comply with the court order. As soon as the contemnor complies with the court order, he/she will be released from jail.

If my financial status has changed and I need to secure a modification of spousal support, what should I do? - If there is a significant and ongoing change in your circumstances, you may file a motion to modify the alimony order. The court may modify spousal support because of changed circumstances, for example, if you lost your job or became disabled. Either former spouse can go back to court a request a modification of alimony, reinstatement suspension or termination of alimony.

According to the Pennsylvania Consolidated Statutes section 23-3701(e), the Court can later review and modify any order for alimony it grants. When a significant or ongoing change in circumstances has occurred, the court can increase, decrease, suspend or terminate alimony as it deems fit.

I own my own company and my wife has been a stay at home mom for years. Will I have to pay rehabilitative alimony until she finds a job? - Most likely, yes. If your soon-to-be ex does not have enough money to support herself or the appropriate skills to be competitive in the job market, you may have to support her short-term, until she is established financially.

Keep in mind that Pennsylvania does not like to award alimony unless the situation is deemed "reasonable and necessary." Alimony is awarded where "…economic justice and the reasonable needs of a party cannot be achieved by any way of an equitable distribution award and development of an appropriate employable skill." In this instance, it would seem "reasonable" that you support your ex temporarily, until she has the ability to support herself.

She may want to go back to school or pursue another way of obtaining the necessary skills to secure a decent-paying job. If she expresses this interest, it is more than likely that the Court will order you to pay rehabilitative alimony until she obtains these skills/secures a job.

How does the alimony I receive affect my tax filings? - Under 6 Pennsylvania Code Section 20.23 and 55 § 4305.35, alimony is included in the definition of income. If you either pay or receive spousal support, alimony pendente lite or alimony, you should be concerned about the potential tax ramifications.

The spouse who pays alimony can deduct the payments from income (in accordance with Title 55). If you are the one receiving the support, however, this counts as income and is taxable (in contrast to child support, which is non-taxable income).

You must report alimony you received on Form 1040 Line 11. Alimony paid is reported on Form 1040, Line 31. Failing to report alimony on your tax return can likely result in an IRS audit. If you are the alimony payor, you must report your ex-spouse's Social Security Number on Line 31b, and the amount of alimony on line 31a. Failure to give the Social Security Number of your former spouse can result in a $50 penalty.

Unfortunately, even if the alimony is paid in pursuant to an agreement, the agreement cannot state that the payment is not taxable. This would make the payment not alimony at all. To learn more about taxes and alimony, you can check out this resource by the IRS.

Have more questions? Contact Rosen Family Law Group!

If you have any more questions about alimony, or another divorce-related issue, the Rosen Family Law Group would love to provide you with the answers you need! Our divorce lawyer in Pittsburgh has been devoted to family law exclusively for nearly 20 years, so we have both the book knowledge and first-hand experience you can trust.