Summary of Pennsylvania Jurisprudence for Alimony Pendente Lite

Summary of Pennsylvania Jur

Database updated April 2010

Family Law

Part Two. Dissolution of Marriage

Chapter 5. Alimony, Disposition of Property, and Other Allowances

Stephanie Giggetts, J.D.

I. Alimony Pendente Lite: Spousal Support

§ 5:3. Factors considered in awarding alimony pendente lite

Wilder, 17 West's Pennsylvania Practice: Family Law §§ 5:3, 5:6 to 5:8, 5:10 to 5:13, 5:15 (7th ed.) (Specific factors considered)

West's Key Number Digest

West's Key Number Digest, Divorce 209

A.L.R. Library

Excessiveness or adequacy of money awarded as temporary alimony, 26 A.L.R.4th 1218

Wife's possession of independent means as affecting her right to alimony pendente lite, 60 A.L.R.3d 728

Treatises and Practice Aids

Std. Pa. Prac. 2d § 126:657 (Discretion of court; conditional grant of alimony pendent lite)

Std. Pa. Prac. 2d § 126:661 (Claimant's needs)

Std. Pa. Prac. 2d § 126:662 (Respondent's financial ability)

In determining whether a petitioner for alimony pendente lite is at a disadvantage financially by reason of having brought the action or being required to defend it, the trial court should consider the following factors:

• the respondent's ability to pay
• the separate estate and income of the petitioner
• the general character, situation, and surroundings of the parties[1]

Specifically, alimony pendente lite focuses on the ability of the individual who receives the APL during the course of the litigation to defend herself or himself, and the only issue is whether the amount is reasonable for the purpose, which turns on the economic resources available to the spouse.[2]

Illustrations:

An alimony pendente lite (APL) award to the wife in the amount of between $9,280 and $10,880 per month was not unreasonable in order to ensure that the parties were on equal footing to pursue the divorce; the husband's earning capacity at its lowest was determined to be $24,000 per month, and at one point was determined to be over $30,000 per month, whereas the wife's was determined to be $800 per month.[3]

In awarding alimony pendente lite, a trial court did not err by failing to consider the contributions to the household that the wife received from the husband's father. The record showed that the wife had received funds from her father-in-law to buy clothing for the children, repair her car, and pay her tuition bills. The husband claimed that this money had substantially decreased the wife's need for support, but the wife testified that she had accepted the funds as loans to be repaid after she completed her education and began working.[4] Moreover, a trial court did not err in considering a husband's service-connected disability Veterans' Administration benefits in determining the amount of the award of alimony pendente lite, notwithstanding the fact that those benefits are exempt from the claims of creditors, because the wife seeking to recover alimony pendent lite is not a creditor of the husband,and the claim is not being based upon a debt.[5]

A court may also take into account the considerations set forth in the statute pertaining to alimony.[6]

Earning capacity is relevant, and when actual earnings do not reflect earning capacity, the trial court is free to investigate a variety of sources to determine a party's true wealth.[7]

A spouse seeking alimony pendente lite who has sufficient assets to meet the needs of the pending litigation and who is equally situated with the other spouse to maintain or defend the action will not be awarded alimony pendente lite.[8] However, the fact that the party requesting alimony pendente lite has worked and earned a sizeable income throughout the marriage does not mean that that party will be equally situated with the other spouse to maintain or defend the pending action.[9]

Illustration:

Where a husband's wages greatly exceeded the wife's for the past two years, and where the husband, an attorney, had not incurred counsel fees during the two-year period of litigation, the trial court did not abuse its discretion in awarding the wife alimony pendente lite.[10]

Although there are cases in which a petitioner's separate estate, whether liquid or nonliquid, could preclude a petitioner from receiving alimony pendente lite, a trial court may not require a petitioner to borrow against her home where it is encumbered and serves as a residence for the wife, her three children, and her father.[11]

Comment:

A husband's claim that only liquid retained earnings of the parties' business could be considered in calculating his income for alimony pendente lite (APL) purposes was waived for appeal because the husband cited no authority for this position.[12]

The court improperly awards alimony pendente lite to the wife where: (1) there is no bifurcated divorce decree and the parties are divorced at the time the court adopts the master's recommendation; and (2) the wife receives a total distribution of more than $225,000.[13] Moreover, despite a husband's allegations of marital misconduct, his wife was entitled to alimony pendente lite because such allegations do not defeat a spouse's claim for such an award.[14]

[FN1] Busse v. Busse, 2007 PA Super 100, 921 A.2d 1248 (2007), appeal denied, 594 Pa. 693, 934 A.2d 1275 (2007); Powers v. Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992); Dyer v. Dyer, 370 Pa. Super. 377, 536 A.2d 453 (1988).

[FN2] Busse v. Busse, 2007 PA Super 100, 921 A.2d 1248 (2007), appeal denied, 594 Pa. 693, 934 A.2d 1275 (2007); Schenk v. Schenk, 2005 PA Super 266, 880 A.2d 633 (2005); Haentjens v. Haentjens, 2004 PA Super 398, 860 A.2d 1056 (2004).

[FN3] Busse v. Busse, 2007 PA Super 100, 921 A.2d 1248 (2007), appeal denied, 594 Pa. 693, 934 A.2d 1275 (2007).

[FN4] Fichthorn v. Fichthorn, 368 Pa. Super. 305, 533 A.2d 1388 (1987).

[FN5] Parker v. Parker, 335 Pa. Super. 348, 484 A.2d 168 (1984).

[FN6] Dyer v. Dyer, 370 Pa. Super. 377, 536 A.2d 453 (1988); McNulty v. McNulty, 347 Pa. Super. 363, 500 A.2d 876 (1985).

As to specific factors considered in setting alimony, see §§ 5:13 to 5:25.

[FN7] DeMasi v. DeMasi, 366 Pa. Super. 19, 530 A.2d 871 (1987).

[FN8] Powers v. Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992).

[FN9] Powers v. Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992); Cross v. Cross, 310 Pa. Super. 124, 456 A.2d 214 (1983).

[FN10] Powers v. Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992).

[FN11] Orr v. Orr, 315 Pa. Super. 168, 461 A.2d 850 (1983).

[FN12] Busse v. Busse, 2007 PA Super 100, 921 A.2d 1248 (2007), appeal denied, 594 Pa. 693, 934 A.2d 1275 (2007).

[FN13] Jayne v. Jayne, 443 Pa. Super. 664, 663 A.2d 169 (1995).

[FN14] Frerotte v. Frerotte, 74 Pa. D. & C.4th 298, 2005 WL 3784971 (C.P. 2005).

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