By Matthew T. Hovey, Esquire
Alimony pendente lite, which stands for alimony pending litigation, can be quite a mouthful for clients. Unfortunately, the confusion surrounding alimony pendente lite does not stop with its pronunciation! While alimony pendente lite, or APL, is a complicated subject, it is important to have a basic understanding of this form of support because it will rear its figurative head in every complex divorce, especially if the economically dependent spouse has committed a fault ground, such as an affair.
APL is authorized by 23 Pa.C.S. § 3702, “Alimony Pendente Lite, Counsel Fees, and Expenses.” APL one of the three forms of support: spousal support, APL, and alimony. Spousal support and APL are available before the issuance of the Divorce Decree, while alimony is available after the issuance of the Divorce Decree.
APL is calculated in the same manner as spousal support pursuant to Pa.R.C.P. 1910.16-4. Using adjusted net incomes, you subtract the economically dependent spouse’s monthly net income from the independent spouse’s monthly net income and multiply by 40%. The court may then take into consideration several limited considerations, such as the payment of the mortgage on the marital residence, and further adjust the APL obligation. The final APL amount is owed each month to the dependent spouse.
The similarities end there, however, and, as such, how the two types of support are tactically used in a divorce. Spousal support is obligation based. Therefore, it is available as soon as the parties separate. Because it is obligation based, however, the entitlement to spousal support is defeated if the dependent spouse committed a fault ground, such as adultery or abuse. This creates the potential for litigation over the spouses’ history and can expose both spouses to a hearing before the court, which could mean both embarrassment and increased attorneys’ fees.
APL is needs based. It is designed to ensure that the economically dependent spouse has the ability to seek equitable distribution of the property. For example, imagine that spouse A makes $200,000 per year. Spouse B was a homemaker and raised the children, so he or she has no income and little earning potential. Spouse B has an affair, and while he or she regrets it, it happened and a fault ground has been committed. Spouse B now lacks the ability to get spousal support and cannot afford basic necessities, let alone an attorney. In this situation, Spouse A can simply wait out Spouse B in the property distribution and force Spouse A to settle for far less than the equitable share of the property which the court would likely grant (note: equitable distribution in Pennsylvania does not take into account marital misconduct in dividing the marital estate) because litigation would be far beyond his or her means. As a result, APL cannot be defeated by fault grounds (but can be defeated by cohabitation with a romantic partner), which means there is little risk of litigation and the spouse can avoid a hearing the more intimate parts of his or her life. It is more of a “sure thing.” APL, however, only becomes available once one party has filed for divorce, not a moment sooner. APL traditionally also counts towards any award of alimony, so that if you Spouse B is entitled to a total of 8 years of alimony, but receives 3 years of APL, he or she will likely be limited to 5 years of alimony.
If you, a family member, or friend are considering or involved in a divorce, please call our office for a free initial consultation to help you further understand how APL may factor into your divorce.