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What is Alimony Pendente Lite?

The phrase pendente lite is Latin for “pending the litigation.” Alimony pendente lite (APL) is a form of temporary support paid by one spouse to the other during divorce proceedings. It is intended to equal the playing field between spouses so that both can afford legal representation during the divorce. The spouses must be living separately for alimony pendente lite to be awarded. Although APL is typically used during divorce proceedings, it may also be used in an annulment.

APL may also provide one spouse with support before financial matters are decided in court. For example, if the sole breadwinner rents an apartment, the remaining spouse may need help paying the mortgage or utility bills.

Distinguishing between spousal support and APL

Spousal support and APL are both ordered after spouses separate, but before the divorce is finalized. However, there are two main differences between these types of temporary support. First, spousal support can be awarded before divorce papers are filed, provided the spouses are living separately. Alimony pendente lite is only awarded after divorce proceedings begin.

Second, spousal support claims can be defended on an entitlement basis. In other words, if the spouse requesting spousal support was abusive, unfaithful or abandoned their family, the court may refuse their request. On the other hand, APL has no such determining factors. The primary factor in determining APL is an equitable distribution of marital assets.

Determining eligibility for APL

Some states impose strict requirements to determine APL eligibility. For example, New York’s temporary alimony laws state that the spouse making the request must make substantially less than the payor. The payee’s income must be less than two-thirds of what the payor makes.

Furthermore, alimony pedente lite is granted or refused on a financial basis. It cannot be used to sanction a spouse because of marital misconduct. Evidence of unfaithfulness or abuse has no bearing on the outcome of an APL hearing.

Finally, APL and spousal support are two different types of support. As such, they cannot both be imposed at the same time. A court may order APL or spousal support, not both.

Gender and APL

Either spouse may file for alimony pedente lite. Income, not gender, is the determining factor in whether the spouse requesting APL receives it.

Requesting an alimony pendente lite order

The time frame for requesting APL depends on the state where you live. For instance, Maryland residents must request APL at the time they file for divorce. If your spouse filed first, you may request it when you file your response. Pennsylvania residents have more leeway. Either spouse may request APL after filing for divorce.

Demonstrating financial responsibility

You may be required to file proof of income or a financial statement. These documents demonstrate either your ability to pay or lack of funds. In most cases, APL is settled in a court hearing. The judge reviews the financial state of both parties to determine whether to grant APL to the spouse who made the request.

Calculating APL

Judges do not typically have discretion in determining the APL amount. They must follow strict formulas set by state law. APL is most often calculated as part of the difference between your income and your spouse’s income.

For example, Pennsylvania residents filing for divorce may use one of two different formulas. If there are no minor children in the marriage, the difference between the payor’s net monthly income and the recipient’s net monthly income is multiplied by 40 percent to determine APL.

However, if the couple has minor children, the calculation is slightly different. If the payor already has child support dependents, their income is reduced by the amount of child support they are paying each month. The remaining amount is then multiplied by 30 percent to determine APL.

Additional amounts included in APL

The court may direct the payor to cover reasonable counsel fees and expenses while the divorce is pending. They may also direct the payor to keep the payee as a beneficiary on life or health insurance policies. If a policy is not already in place, the court may require the payor to purchase one.

Receiving temporary alimony

Requesting APL is not a short-term solution. Although the order may be retroactive to the filing date, alimony pedente lite hearings are rarely resolved quickly. It may take several months to schedule a court date and hold the hearing. Determining whether the payor is liable for APL may be relatively quick for a salaried spouse, but it may be more challenging to determine the amount of income a business owner makes.

Depending on which state you live in, it may be a better strategy to file for spousal support. The criteria for receiving it may be different from APL, and you may receive a larger payment. Discuss your state laws with an Expert to determine what your options are.

Duration

APL is temporary; it ends when the divorce is finalized. An equitable distribution of marital property takes place, and the court determines the payee’s need for continued spousal support or alimony.

Paying taxes on alimony pendente lite

On a federal level, APL is taxable income. Because income can only be taxed once, the payor may deduct APL from their federal taxes. The payee must pay federal income tax on any APL received.

States may tax APL or provide a payor deduction. Check with your state treasurer’s department or talk to an Expert to determine whether you must pay state income tax on APL.

Modifying APL

When one spouse experiences a significant or ongoing change in their circumstances, they may file a motion to modify APL. For example, if one spouse’s income changes drastically or they become disabled, either party may request a modification.

However, this motion cannot be used for a temporary change in circumstances. Furthermore, if the court discovers that the pay change was voluntary, the payor will have to pay according to their earning potential. This prevents spouses from using loopholes to avoid or reduce APL payments.

Effect of APL on post-divorce alimony

APL can have a subtle effect on alimony after the divorce. Because of the temporary alimony order, the payor’s ability to support their former spouse is already established. This may make it easier for the payee to get alimony. However, several other factors may also influence alimony payment amounts.

No two divorce cases are alike. The specific rules for determining APL eligibility and amounts may vary by state. If you have questions about alimony pendente lite, ask an Expert for their advice and recommendations. Customized answers are available in an anonymous, one-on-one conversation from the convenience of your home.

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