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xavierjd
xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience:  20+ yrs in criminal, landlord/tenant, family, & small claims
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Resolved Question:

I got answers last October, concerning APL and Divorce Master process in Pennsylvania,and now I have requested an APL hearing, scheduled for tomorrow morning, to review changes in income and expenses that have come about. Additional information is that my wife is cohabitating and partially dependent on this other persons income. Question, is she required to report this dependency on this other persons income, in that it should be factored into the APL calculation?
Submitted: 1 year ago.
Category: Legal
Expert:  xavierjd replied 1 year ago.
Thanks for using JustAnswer.com It will be my pleasure to assist you today.

Have you requested a reduction in the amount of child support that you are now required to pay?

Have you requested a reduction in the amount of alimony (if ordered) that you are now required to pay?

If your ex spouse is working, what type of job does s/he have?

Thanks
Customer: replied 1 year ago.

No Child Support involved, strictly 'Spousal Support' that goes thru the APL court system. I requested a 'review' in consideration that my income has been reduced, but also, I refinanced the house, lowering my mortgage payments, Unfortunately it appears that the difference will increase my obligations by a few dollars. That's ok, it is what it is. But in the last 6 months, my wife has taken up cohabitation with another man, so I feel his income is now helping to support her, and should be factored into the APL formula. Wife is still working, office job, auditor.


Denny

Expert:  xavierjd replied 1 year ago.
Hi Denny,

Thanks for the information. I want to review a few things. I will be back with an answer for you asap. It may take a little time.

Thanks for your patience.
Customer: replied 1 year ago.

Ok, My hearing is tomorrow morning, and I only just now thought to ask the question. Thanks Much !


Denny

Expert:  xavierjd replied 1 year ago.
Hi Denny,

Sec. 3701(e) of the Pennsylvania Statutes regarding alimony states:

(e) Modification and termination.--An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.

In Pennsylvania, awards of alimony remain within the discretion of the court to modify or terminate, if one of the former spouses is able to prove that there has been a change in circumstances of a substantial and continuing nature. Co-habitation and remarriage may terminate alimony, as will the death of either spouse.

With respect to an alimony recipient's right to continue receiving alimony even after he or she begins to cohabit with a paramour, the majority rule now appears to be that the right to receive alimony only ends or becomes subject to modification if the need for the alimony is affected by the cohabitation. See, e.g., Alibrando v. Alibrando, 375 A.2d 9 (D.C. 1976); Meyer v. Meyer, 41 Md. App. 13, 394 A.2d 1220 (1978), cert. denied, 284 Md. 746 (1979); Gayet v. Gayet, 92 N.J. 149, 456 A.2d 102 (1983); Ho and Ho, 93 Or. App. 421, 762 P.2d 344 (1988); Ramsbottom v. Ramsbottom, 542 A.2d 1098 (R.I. 1988); Horr v. Horr, 445 N.W.2d 26 (S.D. 1989); cf. Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990) (court concluded that "a maintenance recipient's cohabitation can render continued maintenance `unconscionable' if the nature of the cohabitation constitutes a new `financial resource' as contemplated in KRS 403.200(2)(a)"; the court also recognized that not every instance of cohabitation constitutes a change in circumstances making continued maintenance "unconscionable" and noted that a court must ascertain whether the living situation changes the maintenance recipient's economic position); Palmer v. Palmer, 289 S.C. 216, 345 S.E.2d 746 (1986) (court found that, as a result of her cohabitation with another man, former wife's economic circumstances had improved, warranting a termination of alimony). Thus, if an alimony recipient cohabits with another person on whom the recipient is to some extent financially dependent, many courts have found a sufficient change in circumstances which warrants a reduction in support. See Haag v. Haag, 609 A.2d 1164 (Me. 1992); Ianitelli v. Ianitelli, 199 Mich. App. 641, 502 N.W.2d 691, leave to appeal denied, 511 N.W.2d 686 (Mich. 1993); Weston v. Weston, 882 S.W.2d 337 (Mo. Ct. App. 1994); Gayet v. Gayet, supra; Wolfe v. Wolfe,XXXXX 2d 399, 350 N.E.2d 413 (1976); McVay v. McVay, 189 W. Va. 197, 429 S.E.2d 239 (1993).

So, again, the majority rule now appears to be that the right to receive alimony only ends or becomes subject to modification if the need for the alimony is affected by the cohabitation.

Your ex needs to report her "dependency" or "partial dependency" on the person's income, and that dependency WILL be factored into the APL. Unfortunately, you are going to have to be the one to PROVE that she is partially dependent on the other person's income. If you have information that shows the dependency/partial dependency, and she doesn't report it, she will be put in a VERY bad light.

The botXXXXX XXXXXne is that you will probably be able to get a reduction in support so long as she admits, you can show, or the court orders her to produce her boyfriend's income and the information shows that she is partially dependent on the other person's income.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience: 20+ yrs in criminal, landlord/tenant, family, & small claims
xavierjd and 17 other Legal Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi Denny,

Thank you so much for the "excellent service" rating and the GENEROUS bonus! Both are greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by putting my name in the subject line.

Thanks again and best wishes,

xavierjd

Customer: replied 1 year ago.

Xavier,


I'm told now that this Sec. 3701(e) of the Pennsylvania Statutes, applies to Alimony only, and not APL (Alimony Pende Lite), and the cases referred to are not Pennsylvania cases. And that cohabitation is NOT considered in an APL hearing, in the state of Pennsylvania.


 


Denny

Expert:  xavierjd replied 1 year ago.
Hi,

I apologize for any miscommunication. I was, somehow, under the impression that your divorce had been finalized.

Alimony Pendente Support is paid to a financially dependent spouse after the Divorce Complaint has been filed with the family courts. This type of support may be payable until the Divorce Decree is entered and all financial issues involving equitable distribution are resolved by the parties or through court action. However, APL CAN be modified if there is a substantial and continuing change in the circumstances of either of the parties. The argument STILL can be made that if your spouse has become dependent upon her boyfriend's income, there is NO reason why you should have to increase her income while yours is being depleted.

Moreover, in general, an order of alimony pendente lite must be fair. It cannot be confiscatory. Consideration must be given to the payor's ability to pay as determined by his/her separate property, income or earning capacity and the need of the recipient as determined by his/her separate property, income or earning capacity. The reasonable living expenses of each party must also be taken into account. While there are "guidelines" that determine APL, they are NOT always hard and fast. While co-habitation may not be considered for APL, an argument can be made that your wife is BENEFITING from co-habitation and is dragging her feet to complete the divorce. The longer that the divorce takes, the longer you pay APL. She gets APL AND the benefit of her boyfriend's income and your income is the only one that is taking a beating.

 

Also, after the divorce is entered, you have the right to appeal the amount of APL that you paid during the pendency of the divorce.

 

Last evening, I based my answer upon whether alimony can be modified because of a change in circumstance. And, the cases that I cited are still relevant for that issue.

 

Again, I apologize for any miscommunication. You should keep the divorce proceedings as short as possible. That way, any APL will be minimized, and the fact that she is co-habitating IS a factor that the court will consider when determining any award of alimony.

 

Best wishes,

 

xavierjd

Customer: replied 1 year ago.

Xavier, In the state of Pennsylvania, the APL courts have been instructed to NOT consider cohabitation. That cohabitation is only taken into consideration after the divorce is closed and IF,,,IF Alimony is awarded. It is NOT automatically converted from APL to Alimony. I argued the same point you made, today to the APL Judge, that the wifes cohabitation is indeed additional income and should be considered. The judge reminded me of the above statement, Pennsylvania does NOT take cohabitation into consideration during APL,


In addition, the case law references you made are not Pennsylvania Case laws and have no bearing on my question.


I am disappointed to have spent $65 for advice that did not apply to my question, in regards XXXXX XXXXX Family Law with APL.



Expert:  xavierjd replied 1 year ago.
Hi Denny,

I understand that APL is NOT automatically converted to alimony.

Also, the cases that I cited had to do with the majority rule when it comes to alimony and co-habitation. The law is split as to alimony and cohabitation. Again, the cases reflect the majority rule.

Again, I am sorry for any miscommunication in my answer to your original question. JustAnswer wants its customers to be happy. If you are disappointed, you can certainly request a refund. I certainly don't want your experience with JustAnswer to be negative.

I wish you well. I hope that you will not let this negative experience affect your choice to use JustAnswer in the future.

xavierjd

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