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1. What is "spousal support?
"Many states now use the term “spousal support” instead of “alimony" but they are one and the same. The terms "spousal support" and “alimony” are used when referring to an allowance of money or property that is not intended as a division of marital property. The law is generally defined as “the payment or payments to be made to a spouse or former spouse that is both for sustenance and for support of the spouse or former spouse." The language of the law may vary from state to state but generally it means the same.
2. When may spousal support be ordered?
The court may order spousal support in a divorce action (including temporary spousal support during the time the divorce action is pending), or in an action for support only (i.e. a spouse may request only that the court order spousal support while not requesting that the court terminate the marriage, sometimes referred to as a "legal separation").
Many state laws require that a married person support his or her spouse. Spousal support is an allowance for nourishment or sustenance which the court may compel one spouse to pay to the other when they are living apart or have been divorced. While spousal support, whether temporary support during the pendency of the divorce action ("spousal support pendente lite," also commonly referred to as "temporary alimony") or permanent (regardless of the actual length of time) is ordinarily granted to the wife, some state laws provide that in appropriate cases, spousal support may be granted to the husband.
An award of spousal support pendente lite is discretionary with the court. The court may include in a temporary spousal support award expenses for such items as housing (i.e. rent or mortgage payment), food, medical expenses, transportation and attorney fees. While a temporary spousal support award generally automatically terminates after a divorce, annulment or legal separation decree has been entered, there are some states and some circumstances in which the temporary support can continue. Some of these circumstances many include the physical, mental or emotional health of the spouse receiving the support.
3.How is the amount of temporary spousal support determined?
With regard to a temporary spousal support award, there is no precise formula for determining the amount that will be awarded. The court must use its judicial discretion and take into consideration the ability to pay of the party who is to be paying the temporary spousal support and the present needs of the party to whom the temporary spousal support is to be paid. The court is required to take into consideration the standard of living of the parties immediately prior to the time of separation of the parties or the beginning of the marital discord.
4. How is the issue of whether permanent spousal support is to be ordered determined and if it is to be awarded how is the amount determined?
When determining whether to grant permanent spousal support and if it is granted, the nature, amount and duration of the payments, the trial court is required to consider fourteen factors.
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These factors are:
1.The income of the parties, from all sources, including, but not limited to,
income derived from property awarded as part of the property division in
the divorce proceeding;
2.The relative earning abilities of the parties;
3.The ages and the physical, mental and emotional conditions of the parties;
4.The retirement benefits of the parties;
5.The duration of the marriage;
6.The extent to which it would be inappropriate for a party, because he/she
will be custodian of a minor child or children of the marriage, to seek
employment outside the home;
7.The standard of living of the parties established during the marriage;
8.The relative extent of education of the parties;
9.The relative assets and liabilities of the parties, including, but not limited
to any court-ordered payments by the parties;
10.The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party's
contribution to the acquisition of a professional degree of the other party;
11.The time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse
will be qualified to obtain appropriate employment provided the
education, training, or job experience, and employment is, in fact, sought;
12.The tax consequences, for each party, of an award of spousal support;
13.The lost income production capacity of either party that resulted from
that party's marital responsibilities; and
14.Any other fact that the court expressly finds to be relevant and
equitable.
If the court determines that permanent spousal support is warranted, when
determining the amount of the award, the court must consider the ability to
pay of the party who is to be paying the spousal support and the needs of
the party to whom the spousal support is to be paid.
5. How long does spousal support last?
Spousal support can be for a specified length of time (i.e. 24 months, 48
months, etc.), may be ordered, in the appropriate case, to continue
indefinitely, or may be ordered to terminate upon the occurrence of a
specified event (i.e. remarriage of the payee-spouse or death of either
party). The preference is for the termination of support "at a date certain,"
but the court has discretion in making the determination. The court may
order spousal support for a specified length of time and maintain
jurisdiction of the support issue so that it can be reviewed again to see if it
should continue as is, be modified or terminated.
6. Can permanent spousal support be modified or terminated?
If the decree that orders permanent spousal support makes a specific
provision that permits the court to modify the spousal support award, the
court retains jurisdiction to hear any motion requesting a modification of
the existing award. The court can expressly reserve jurisdiction in its order
in a contested divorce matter or the parties can agree, in a separation
agreement that is subsequently incorporated into a divorce decree, to make
spousal support modifiable. If there is no provision contained in the
divorce decree (or a separation agreement incorporated into a divorce
decree) that reserves the jurisdiction of the court to modify the spousal
support award, the award in not modifiable.
Because of a change in the law, divorce decrees filed before May 2, l986,
and not arising out of a separation agreement incorporated into a decree,
do not have to have a specific reservation of jurisdiction in order for the
court to consider a modification or termination of spousal support.
Divorce decrees which incorporate separation agreements and which were
entered on or before June 23, l976 are not modifiable unless there has been
a mistake, misrepresentation, fraud, or an express reservation of
jurisdiction to modify. Divorce decrees which incorporate separation
agreements and which were entered after June 23, l976 but before May 2,
l986 are modifiable and such modification is not limited only to situations
of mistake, misrepresentation, fraud, and the separation agreement or
decree does not have to have an express reservation of jurisdiction to
modify.
If the court has retained jurisdiction to modify spousal support (or under
the other situations described above where the court may modify), it may
only do so where the court determines that there has been a material or
substantial change in the circumstances of either party that could not
reasonably have been anticipated at the time of the original decree. A
change in circumstance includes:
o Altered economic conditions (i.e. an involuntary decrease in
income);
o Remarriage of the recipient;
o Death;
o Entering into a relationship in another state that would constitute a
valid marriage.
o Post-decree cohabitation in certain situations;
o Payor's increased ability to pay;
o Retirement; and
o Other circumstances.
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