What is post-separation support?
Post-Separation Support (PSS) is basically temporary alimony. It is usually ordered for a year or 18 months or until resolution of the alimony claim at trial. Unlike alimony, Post-Separation Support is not barred by the pre-separation adultery of the dependent spouse. The effect of the adultery is in the discretion of the Judge.
Who is entitled to alimony?
The dependent spouse during the latest few years of marriage is entitled to alimony IF the other spouse is determined to be the supporting spouse. This entitlement to alimony by the dependent spouse does not guarantee that she (in most scenarios) will actually receive alimony.
Who is a dependent spouse?
The legal definition is “a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” Having substantially less income is an indicator of dependency, but the real issue is whether there is an actual need to have the other spouse support the allegedly dependent spouse.
Who is a supporting spouse?
The reverse is true of the supporting spouse, who is “a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.”
How long can alimony last?
This is usually a function of the length of the marriage. However, there is no rule of thumb or calculator that can be used to predict what a Judge would award or what is fair in negotiations. Some Attorneys still utilize the old rule of thumb of ½ the length of the marriage +/- 2 years either way as ballpark term for alimony in negotiations. However, the age of the parties and closeness to retirement age, fault and other factors can often affect the term to a great degree. Essentially it is in the discretion of the judge. Therefore, agreeing to a term may be in both parties’ best interest.
What about fault?
Pre-separation adultery on the part of the dependent spouse absolutely bars alimony. Abuse of alcohol or drugs, physical violence and abandonment can be used to by the supporting spouse to attempt to lower the amount and/or the term of payment. However, in most larger counties, these factors do not play an important role. Likewise, the supporting spouse’s fault can be brought up in attempt to increase the likelihood of the court determining that the party at fault is in fact the supporting spouse. The Court shall award alimony if the supporting spouse commits adultery…if the dependent spouse was not also committing adultery.
How much will I get (or have to pay)?
This is the million dollar (or 10 cent question). It depends. The Court (or negotiating parties) will determine how much income the dependent spouse earns in average per month. Then that party’s average reasonable needs and expenses are deducted. If in fact there is excess income, that spouse is not dependent. If there is a shortfall that spouse has a need in the amount of the shortfall. Next the same calculations are determined for the supporting spouse. If the supporting spouse has no money available after meeting any child support obligations and (usually) his reasonable needs and expenses, there is no alimony awarded. If there is excess income, the supporting spouse can pay up to the excess. Frequently the excess is not enough to meet all the excess needs of the dependent spouse.