After receiving so many questions about alimony from current or prospective clients, I felt the need to clear the confusion regarding a spouse's entitlement to alimony in Pennsylvania.
Alimony in PA
What is alimony?
Alimony is a post-divorce payment that one ex-spouse makes to the other. When a couple files for divorce, it's not uncommon for a lower-earning spouse (or the spouse with the lower earning capacity) to need financial assistance to get back on their feet. Alimony payments help smooth the transition and/or secure their financial future into retirement.
What is the difference between alimony vs. spousal support in PA?
Pennsylvania defines alimony differently depending on the stage of the divorce. In addition to alimony, there's also:
This is temporary financial support paid to a spouse after a separation but before a divorce is filed. The courts will calculate spousal support based on PA Guidelines for Spousal Support. If spousal support is awarded by the court under the Guidelines, a spouse may request a deviation by establishing a greater financial need than what the Guidelines provide.
Alimony Pendente Lite
Like spousal support, Alimony Pendente Lite (APL) is a temporary arrangement. In this case, it's awarded while a divorce is pending. This can allow a spouse to maintain their livelihood during the divorce process and to afford the cost of the divorce. There are some limits to the length of time as to how long APL will last, and in some cases, a spouse may not even qualify.
As with spousal support, if APL is awarded by the court under the same Guidelines, a spouse may request a deviation from the Guidelines by establishing a greater financial need than what the Guidelines provide.
In January 1, 2019, there were two major changes to the Guidelines calculation formula, due to updates in alimony reform as part of the Tax Cuts and Jobs Act of 2017. The PA divorce law's new formula and approach helps the paying spouse who lost the ability to deduct the spousal support/APL payment as a result of the amendment, to offset the tax deduction with having to pay less spousal support.
The other aspect is the spousal support/APL award amount is now considered part of the recipient spouse's income. This is for purposes of assigning percentage splits for children's out-of-pocket, unreimbursed healthcare expenses and premiums. This means that the recipient spouse will now pay a higher percentage towards these costs than they did prior to January 1, 2019. This also offsets the loss of the payor's tax savings from the lost deduction.
Alimony in PA - How PA Divorce Law Works
Am I entitled to alimony in PA?
No, there is no entitlement to alimony in Pennsylvania. Instead, it's purely discretionary with the court, and based on 17 factors listed in Section 3701 of the PA Divorce Code. A spouse who seeks alimony must specifically ask for it in court or negotiate it with their spouse through the meditation process, which is always recommended first, if possible.
What are the PA alimony guidelines?
Here are the 17 alimony factors considered by the PA courts (from Section 3701 of the PA Divorce Code). During divorce mediation, these are thoroughly discussed to achieve the fairest alimony settlement possible.
- The relative earnings of both spouses.
- The duration of the marriage.
- The ages and physical, mental and emotional states of the two spouses.
- The sources of income of both spouses. This includes medical, retirement, insurance or other benefits.
- The expected future earnings and inheritances of the two spouses.
- The degree to which one spouse has contributed to the other spouse’s education, training or increased earning potential.
- The degree to which a spouse will be financially affected by their position as the custodian of a minor child.
- The standard of living of the spouses established during the marriage.
- The relative education of the parties. This also considers the amount of time it would take for the spouse seeking alimony to acquire the education or training necessary to find employment.
- The relative assets and liabilities of the two spouses.
- The property each spouse brought to the marriage.
- The degree a spouse contributed as a homemaker.
- The relative needs of the two spouses.
- The marital misconduct of either of the spouses during the marriage. “Abuse” is in this context shall have the meaning given to it under Section 6102.
- The federal, state and local tax consequences of the alimony.
- Whether the spouse seeking alimony lacks sufficient property, including items in Chapter 35 relating to property rights, to provide for their reasonable needs.
- Whether the spouse seeking alimony is incapable of supporting themselves through appropriate employment.
It's important to note that gender isn't taken into account in court, nor in mediation. Alimony is strictly focused on the true financial needs of the spouse. According to a recent report by Pew Research Social and Demographic Trends, the number of fathers who are staying-at-home to raise kids has significantly increased, especially those in their 40's, and so it's becoming more commonplace for men to receive alimony payments as part of a divorce settlement.
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Want to know about misconceptions about Alimony in Pennsylvania?
Am I entitled to one year of alimony for every three years of marriage?
I wanted to address this question specifically because it comes up quite a bit. This is often a common misconception by those navigating the murky waters of alimony in a PA divorce. In many PA county courts, there is an unspoken rule of thumb, not a law, that a recipient should receive one year of alimony for every three years of marriage.
However, I always tell my clients that this is not a slam dunk for an alimony claim. Since there is no entitlement for alimony in PA, the court must determine that alimony is necessary based on the 17 factors. The one to three year alimony presumption is merely a starting point for negotiation before the court. From there, the ultimate determination could either be more or less than this presumption.
How long do you have to be married to receive alimony?
There's no minimum length of time that a spouse has to be married in order for alimony to apply. While the length of the marriage is an important factor in the alimony statute, it's one of 17 factors that the court will consider. Typically, the longer the marriage, the greater the case for alimony, assuming other relevant factors also exist.
How long do I have to pay alimony in PA?
Again, there is no set time period for paying alimony in PA. It's purely discretionary. However, if an alimony payment is going to apply, spouses should carefully evaluate their particular circumstances, what the recipient's future financial needs will be, and also the paying spouse's ability to pay.
For example, there's a common type of alimony in PA called rehabilitative alimony. This is where one spouse needs a few years of financial assistance after the divorce to get back on their feet financially, clear their existing debt, and/or re-train themselves for a new career. If such a need is recognized, then the alimony payment should only last for a limited period of time (and no more) in order to satisfy this purpose.
How much is the typical alimony payment in PA?
There is really no way to predict what alimony payments will be (or if there will even be an alimony payment) when spouses decide to obtain their own attorneys and litigate the issue in court. There are too many variables at play. The issue effectively becomes a roll of the dice. Much will depend on the type of case presented by the attorneys on either side or the particular mood of the judge or divorce master.
Too often, the real purpose behind alimony gets lost when spouses decide to litigate in court because the focus is on winning and losing. When spouses mediate alimony, they have the opportunity to together decide whether alimony will apply. Not only that, they decide a fair amount to pay and for how long, in accordance with their budgets and what they need and can reasonably afford.
How do I calculate alimony payments?
There is no formula to calculate post-divorce alimony in PA since it's a discretionary issue with the court.
Here's something that courts don't necessarily require, but is actually one of the best ways I have found to help spouses calculate alimony in a mediated divorce. I have each spouse create a budget that reflects an estimate of their post-divorce living expenses.
This gives them a much better sense of what they need to comfortably live in a separate household (and adequately support their children, if they're involved). Likewise, the payer of alimony will prepare their own budget to determine how much they can reasonably afford and for how long, consistent with the financial needs of the payee spouse.
When spouses arrive at the alimony number with such scrutiny together, they're often more likely to believe the payment is fair and therefore abide by their agreement.
How is the process of determining alimony different in court vs. private mediation?
Determining Alimony in Court
In PA court, an assigned judge uses 17 factors (listed above) to determine whether alimony is necessary. The judge also orders how much will be paid from one spouse to another, the manner in which these payments will be made, and for how long.
This can take months, if not several years to resolve and can be quite a tedious and exhausting process. Back and forth negotiations between opposing attorneys and numerous in-person court hearings in equitable distribution may be necessary, racking up potentially exorbitant legal fees.
Determining Alimony in Mediation
On the other hand, an attorney-mediator experienced in divorce and alimony matters in court, can educate both you and your spouse on the general mechanics of alimony, its function and purpose, and the rationale behind each of the 17 factors in the alimony statute.
Couples are in a better position to apply alimony to their particular needs and circumstances. The attorney-mediator is also present during the negotiation as a neutral third-party to ensure a fair process designed to protect and provide for both spouses involved.
In this sense, if you and spouse mediate, you have the best of both worlds. You gain a clear understanding of how alimony works and how it is applied, as well as a reasonable range or general reference for how a court would typically view your particular case.
From there, you retain control and discretion over how alimony will be resolved for your case, rather than placing these very critical decisions in the hands of a court system with unpredictable outcomes outside of your control.
When you and your spouse meditate, you have the best of both worlds. A clear understanding of how alimony works and full control over how much is paid and for how long.
How can alimony be modified?
If the circumstances of either spouse change significantly, the court can decide to modify, suspend or terminate the alimony order.
With mediation, there is no need to go to court if circumstances change. Once alimony is decided in mediation, these terms are then put into the marital settlement agreement. This becomes a fully enforceable court order that legally protects both parties in the same way as if they had gone to court to resolve alimony.
The agreement can have provisions that state that alimony can be modified under special conditions like changes in future income, remarriage, or disability.
What are the changes to alimony since the tax reforms in 2018?
In Pennsylvania, under the previous law, alimony was deductible to the spouse making the payments. For recipients, it was included as taxable income.
However, in a bill that was passed on December 20, 2017, alimony payments will no longer be deductible for the payor, nor taxable for the recipient here in Pennsylvania. This means that divorce and separation agreements signed after December 31, 2018 will operate under this new law.
This article was last updated on December 1, 2019
Topics: Healthy Legal Options