Clients are often shocked at what they have to pay to their soon-to-be ex-spouse while a divorce case slowly winds through the system. In Pennsylvania, after a divorce complaint is filed but before a divorce decree is entered, the spouse who makes more money has to pay the other alimony pendente lite or “APL.”
The presumptive amount of APL is calculated as 40% of the difference of the parties’ net incomes (or 30% if there are minor children). Judges can deviate from that amount of support based on different factors, though. Many would argue that in reality, that rarely happens.
It is surprising to many people new to the divorce world that a spouse who receives APL does not have to prove that they actually need that amount of money.
A recent Superior Court case, however, suggests that “need” may be more of a factor than previously thought.
In Carney v. Carney, 2017 PA Super 218 (July 11, 2017), the husband made about $57,000 per month after taxes. Although the judge noted that the support guideline formula suggested that the wife be awarded $22,000 per month in APL, the judge found this amount was excessive under the circumstances as the wife did not testify to any additional expenses or needs.
Instead, the judge modified Wife’s APL award to $12,000 each month, which the court deemed appropriate to allow Wife to live independently and to provide her with the resources to litigate the divorce action. The Superior Court found that amount to be reasonable and rejected the husband’s claim that the judge committed an error but not setting the amount even lower.
The Superior Court held that APL is an order for temporary support granted to a spouse during the pendency of a divorce and is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse. APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare. APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for the purpose, which turns on the economic resources available to the spouse.
In ruling on a claim for APL, the judge should consider: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties.
A few months ago, House Bill 1250 was introduced in the Pennsylvania Legislature, which essentially would require APL awards be based on basic needs and not a formula. There is conflicting reports as to the status of that Bill.
In any case, based on the Carney case, an argument can certainly be made that a judge should consider what a spouse actually needs when ordering APL. This could be a drastic departure from what the formula provides and have a wide impact on many going through a divorce.