Monday, October 03, 2011

In Pennsylvania, when is alimony awarded?

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Unfortunately for litigants seeking solid answers, no firm answer to this question about alimony exists. Like many other instances in the law, an award of alimony depends on the individual circumstances of each case. Pennsylvania law does not provide for a formula for the calculation of alimony (either duration or amount) or strict rules as to when it should and should not be awarded.


Our statute provides the factors to be considered when awarding alimony, but, like in many other areas of the law, the subjective factors can be given different weight by different courts. Additionally, overall circumstances of the entire divorce case and of the parties play a part in the decision.

The statute provides that when deciding whether to award alimony and in determining the type, amount, manner of payment and duration, the court shall consider the following factors:

1. The relative earnings and earning capacities of the parties.

2. The ages and the physical, mental and emotional conditions of the parties.

3. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

4. The expectancies and inheritances of the parties.

5. The duration of the marriage.

6. The contribution by one party to the education, training or increased earning power of the other party.

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodial of a minor child.

8. The standard of living of the parties established during the marriage.

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

10. The relative assets and liabilities of the parties.

11. The property brought to the marriage by either party.

12. The contribution of a spouse as homemaker.

13. The relative needs of the parties.

14. The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall 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. The Federal, State and local tax ramifications of the alimony award.

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.

23 Pa.C.S. §3701

Even knowing the law, no one can predict with any reasonable degree of certainty and accuracy as to an alimony award, due to the subjectiveness of the ultimate trier of fact. However, experienced lawyers, who have practiced in the county where the case is litigated, can often analyze the issue in the particular case and guide their clients on this issue and make an educated, informed estimate.

Last spring, the Superior Court of Pennsylvania, our appellate court, decided an appeal from the trial court of Allegheny County wherein a wife challenged the alimony the trial court awarded her. Wife felt that the duration of the alimony was simply too short because she wanted to stay out of the work force so she could continue to home school her children.

The facts of the case revealed that husband and wife had two children. Wife was home schooling both children, who were approximately 14 years and 7 years old at the time of the appeal. Wife had been a teacher and left the work force in order to home school the children. The parties lived frugally in order to manage on one income. However, upon the separation and divorce, in order to continue home schooling, wife requested at least $700 a month in alimony until both children graduated from high school, in addition to child support. Husband objected on a variety of grounds including that they were no longer an intact family and they could not afford to continue to have wife out of the work force.

The trial court awarded wife $800 per month in alimony, which was $100 more than she had initially requested but the term was much shorter which would require her to enroll the children in traditional school, return to the work force relatively quickly and become self-supporting. Accordingly, wife appealed the trial court’s order. The Superior Court agreed with the trial court’s reasoning that it was unreasonable for wife to remain unemployed while husband continued to support both households for essentially the next twelve (12) years, until the younger child finished high school. Accordingly, the Superior Court did not disturb the discretion of the trial court on the alimony issue.

Divorce requires that the income that once supported one household must now be spread over two. In order to effectuate this division of income, many families must live significantly more frugally than they did as an intact family. Of course, if one or both parents increase their income, the family may be able to maintain a comparable lifestyle but often without the luxury of a stay at home parent.

This financial reality exists in almost every divorce case, even those involving significant incomes. Simple math often dictates the outcome: either divide the existing income between two houses and live more simply or increase the income so that more is available.

The trial court even noted that home schooling probably benefitted the parties’ daughter. However, alimony is a financial question - not a test of the best interests of the child. The economic realities in this particular case made home schooling a decision that was better suited to an intact marriage where one working spouse can support the household. The name of this case is Kent v. Kent, 2011 Pa.Super. 55 (2011), if you are interested in reading the complete Opinion.

1 comment:

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