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Legal Eagle: A question of alimony

It's possible to get it in Pa., but it's based on fault and need

Thursday, December 20, 2001

By Patricia G. Miller

What exactly is alimony, and how does it differ from the support you pay a spouse from whom you recently separated?

 
 

Patricia G. Miller is the permanent equitable distribution master for the Family Division of the Court of Common Pleas of Allegheny County. Her views do not necessarily represent those of the division or its judges.

   
 

Alimony is very different because it is post-divorce support paid to someone who is no longer your spouse. You have a legal duty to support your spouse and your minor children. But why, say alimony opponents, should there be support for someone who is neither? Good point, and their view prevailed for the first 200 years of our history.

Then, in 1980, Pennsylvania passed its no-fault divorce law and things changed. For virtually the first time, a court could give any ex-spouse this new thing called alimony. But with that change arose a host of unanswered questions. To understand these issues, we need to understand where they came from.

Historically, Pennsylvania has had no such thing as alimony except in rare cases when an ex-wife was deemed to be insane. In these cases, former husbands provided support as a way to protect the taxpayers from having to do so. Not surprisingly, wives had no corresponding duty to support insane ex-husbands. The only other state never permitting alimony was Texas. But in Texas, where they had "community property" laws, a dependent spouse who couldn't get alimony had a right to half of the assets.

No such right existed in Pennsylvania. Here, whoever held title to the item owned it. Not you? Too bad. What our state did to protect the economically dependent sane spouse was to make it very difficult to get a divorce. If people could almost never get divorced, paying support to a non-spouse wasn't even an issue.

Fast forward to 1980. Now that alimony is out there as a possibility for the sane as well as the insane and men and women, important questions arise, such as who ought to get it, why, how much and for how long. There are no boilerplate answers. So, if there's a chance you might either pay it or receive it, talk to your lawyer sooner rather than later.

As to who gets it, the easier question is who doesn't, and the short answer is no "bad apples" need apply. Interestingly, under our no-fault divorce law, the only time fault is relevant is when someone wants alimony. And if you are cohabiting with someone, you won't get alimony no matter how much you might need it.

The "need factor" is the next most important issue. Courts look at financial need as a critical factor. No need, no money.

Assuming you can get past the fault and need hurdles, the remaining questions relate to how much and for how long. Those are harder questions, since the divorce law says only to provide a "reasonable" amount for as long as alimony is "necessary."

Suppose you are a 41-year-old woman with a college degree, but you haven't been employed in 15 years. Your children are in school full time. You have already been getting support for the past few years following separation, as your case works its way through the court system, but you have done nothing to brush up your job skills. Now you say you must have alimony to survive. You are not likely to get it, because your economic dependency is almost a self-induced hardship. Being a custodial parent won't save you either, since many custodial parents also hold down full-time jobs.

Now suppose you are a 58-year-old man earning $60,000 annually. Your wife is also 58. She has only a high school diploma earned 40 years ago. She has not been employed since you married 39 years ago, instead spending all her energies being a traditional wife and mother.

Like our previous example, she hasn't looked for work since separation. Oh, yes, she also has severe arthritis and heart trouble. Unfortunately, the marital estate doesn't consist of income-generating assets or $500,000 in cash, so no property division the court might make is going to generate an income to support her. My prediction: Unless she is living with her boyfriend or holds a winning lottery ticket, you are going to pay alimony for a good many years.

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