Tag Archive for: support

APL vs. Spousal Support

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APL is short for alimony pendente lite which translates to alimony while the divorce is pending. Spousal support can be sought when the parties are separated and potentially before a divorce matter is pending. Often, these two terms for support between spouses are used interchangeably. This is due in large part to the fact that they are calculated the same way. Both forms of support are based on the difference in the spouses’ incomes. Pursuant to Pennsylvania Rule of Civil Procedure 1910.16-4, without children, spousal support or APL is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support or APL will only be 30% of the difference of the net incomes. Additionally, both forms of support are generally retroactive to the date of filing. However, the underlying purpose of the support award and potential defenses available distinguish APL from spousal support.

The purpose of APL is to allow the income-dependent spouse to be able to defend themselves in the divorce action. In that regard, marital misconduct is not a factor in an APL award. This may even apply to situations where the party seeking APL is already cohabiting with someone else. In contrast, there are defenses to a spousal support award. Generally, any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Conduct which takes place after separation is generally not relevant for establishing fault as a defense to a request for spousal support, however, such conduct may be introduced if it will go to show the conduct began before separation. Cohabitation is grounds for termination of a spousal support award.

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Mortgage Deviations in Support

Mortgage payments may be considered in the course of establishing a support award. Pennsylvania Rule of Civil Procedure 1910.16-6 covers adjustment to basic support awards and allocation of additional expenses. Under sub-section (e) mortgage payments, real estate taxes, and homeowners’ insurance may need to be considered. Second mortgages, home equity loans and other obligations secured by the marital residence may be considered but are within the discretion of the court and addressed on a case-by-case basis. The expenses to maintain the marital residence can be considered if the total expense exceeds 25% of the obligee’s (party receiving support ) or obligor’s (party paying support) income. If the obligee is in the marital residence and paying the mortgage, the court would look to see if the mortgage payment exceeds 25% of the obligee’s income after considering the basic support award. If the mortgage is still more than 25% the court can direct the obligor to assume up to 50% of the excess resulting in an increased support award.

Obligors can also receive assistance with the mortgage if they are the party in the marital residence and are responsible for the payments. The basic support award is subtracted from the obligor’s net income first. If the mortgage payment is more than 25% of the remaining net income available to the obligor, the court may make a downward deviation in the basic support award. The mortgage deviation is only applicable prior to final equitable distribution in the divorce matter. Additionally, the courts are more likely to allow for a mortgage deviation in cases where the home is ultimately going to be sold as opposed to a case where one party intends to keep the residence post-divorce.

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Pensions in Pay Status

Pensions already in pay status at the time of separation require additional considerations in a divorce matter. The pensions can still be divided as a marital asset however the method of valuing the total value of the pension for distribution is altered. This is because often elections for survivor benefits are made at the time the benefits commence and are usually irrevocable. Accordingly, any survivor benefit should be valued separately and set against the value of the pension itself. Pensions in pay status also present a unique issue when it comes to support.

Based on the case law established in Pennsylvania it is impermissible to use a monthly pension benefit as income available for support and also divide the pension itself as an asset in equitable distribution. This was made clear in Cerny v. Cerny, 440 Pa. Super. 550 (1995) and reiterated in Rohrer v. Rohrer ,715 A.2d 463 (1998). This same rule extends beyond just monthly pension benefits as evidenced by the fact pattern in Cerny. There, Husband had received a lump sum payment from his employer following termination. The lump sum was split as an asset and the figure received was also the basis for income available with respect to the support award. Husband was successful in appealing the decision such that the payment was only considered for support purposes and deemed a separate asset for equitable distribution purposes.

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Benefits Paid to Children

Benefits payable to the children can affect the child support award. Pennsylvania Rule of Civil Procedure 1910.16-2(b) discusses the treatment of public assistance, SSI benefits, certain Social Security payments and foster care payments in regard to calculation of support. Per sub-section (1) public assistance and SSI payments cannot be considered. SSI is a federal means-tested benefit. It operates as more of a welfare benefit similar to public assistance. Examples of public assistance include cash assistance or food stamps. Sub-section (2) addresses social security derivative payments for children. Any social security benefit as a result of a parent’s death, disability or retirement should be addressed in the child support calculation. It should be added to the income of the party receiving the benefit.

Foster care payments are discussed in sub-section (3). Any payments received by the foster parent should not be included as part of their income in any other support matter. The rules for which benefits payable to children should be included in a support award parallel the rules for the parents. For example, Social Security disability (SSD) benefits received by the parents are counted as income for the party receiving it. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. In contrast, Supplemental Security Income (SSI) is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken and accordingly is not classified as income for calculating a support award.

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Post-Divorce Healthcare Options

Once a divorce decree is issued, entitlement to health benefits as a spouse terminates. COBRA was enacted in 1986 and allows temporary healthcare continuation at group rates for ex-spouses. The ex-spouse is responsible for the entire premium. In that regard, it will likely be more expensive than the rate for the employee who is likely receiving an employer contribution toward the premium. Employers with 20 or more employees are required to offer COBRA coverage. The maximum coverage period in the event of divorce or legal separation is 36 months.

A new alternative to COBRA coverage is the healthcare marketplace. Enrollment is generally at the start of the year however, enrollment is possible throughout the year if there is a qualifying event. Losing prior coverage as a result of divorce, having or adopting a baby, and getting married all constitute qualifying events. The marketplace will generate the plans available based on household income, location and tobacco use. There are four plans ranging from bronze plans which cover 60% of expenses to platinum plans which cover 90%. The monthly premium correlates with the percentage of out-of-pocket expenses that will be covered. The lower the monthly payment the higher the out-of-pocket expenses will be. All plans include routine doctors visits and preventative care, prescriptions, hospitalization and maternity care.

Medicaid is also an option. Eligibility for Medicaid coverage is based on adjusted gross income in relation to federal poverty levels.

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Same Sex Divorce

In a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners looking to dissolve their marriage are subject to the same process as far as divorce, equitable distribution and support. Most divorces proceed on the basis of no-fault meaning the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce.

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes.

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Unreimbursed Medical Expenses

Unreimbursed medical expenses may be allocated between the parties in a support matter in proportion to their income under Pa. R.C.P. 1910.16-6. The court may include the expenses within the support order or direct that it is paid directly to the party receiving support or their healthcare provider. The first $250 per year is the responsibility of the party incurring the expense. The parties will only need to share expenses that exceed $250 per year. Medical expenses eligible for reimbursement include co-pays and other expenses for reasonable, necessary supplies or services. Surgical, optical, dental and orthodontic expenses are included but are not an exhaustive list.

Expenses that are generally not eligible for reimbursement include cosmetic, chiropractic, psychiatric and psychological expenses. They may be included by mutual agreement or specific order of the court. Unreimbursed expenses should be calculated on an annual basis. Proof of the unreimbursed expenses must be supplied to the other party by March 31st of the following year. A limit may be placed on the amount to be reimbursed if it would otherwise be excessive. Domestic Relations can assist in the collection of unreimbursed expenses if the other party still refuses to pay their share after receiving timely documentation of the expenses. Untimely submission of unreimbursed expenses is left to the discretion of the court as far as if they will still be allocated between the parties.

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Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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In most cases, you will find a judicial determination isn’t needed. Administrative agencies can make their own determination regarding a minor’s status. For example, the Department of Public Welfare would make that determination for a minor applying for public assistance. A school district can make that decision for a minor child attending one of their schools. Emancipated status is always for a specific and limited purpose. Examples of the most popular purposes include medical consent, ability to sign legally binding contracts (e.g. a lease), receipt of public benefits, and school enrollment. There is no general emancipated status that would give a minor all the same rights as an adult.

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Who provides medical insurance in divorce and support

Typically during a divorce, medical insurance is already in place when parties separated. Unless the parties agree otherwise, you cannot unilaterally drop your spouse from medical insurance during a divorce and must provide coverage until a divorce decree is entered as long as it still available through work. When parties go to support court, if both parties have medical insurance available for the children, it oftentimes make sense to look at who has a better plan and at what cost. It is not just the out of pocket expense on the premium that should be looked at, but also the coverage available and cost of deductibles. If the parties cannot agree on who will provide coverage for the children the court will weigh these variables to decide what makes the most sense. No matter who provides the coverage, the parties should realize that they will both share in the cost of medical premiums in proportion to their incomes either as an add on to basic child support or as a deduction. The parent who receives child support, however, will pay the first $ 250 in out of pocket medical expenses and the balance will be shared based on incomes.

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SSD vs SSI

Social Security benefits may count as income depending on the nature of the benefits be received. For that purpose, it is important to differentiate the types of Social Security benefits to ensure an appropriate support calculation. Social Security disability (SSD) benefits are counted as income. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. Essentially, disability payments have been pre-paid by the recipient during their employment. Accordingly, the recipient must have a sufficient earnings history, or in other words have paid social security long enough, to be eligible for payments.

In addition to the recipient receiving a benefit, their children can also receive a derivative benefit. The derivative benefit can be set up to be paid directly to the primary custodian of the children if the recipient does not exercise primary custody. Disability payments are retroactive to the date the disability was established so there could be a lump sum payment initially. Both the amount received by the recipient and the amount on behalf of the children as a derivative benefit should be factored into in support calculation.

Social Security income (SSI) is not be considered income for purposes of a support calculation. SSI is a federal means-tested benefit. It operates as more of a welfare benefit similar to cash assistance or food stamps. It is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken. Even though SSI cannot be considered, if the parent is otherwise capable of working, income from employment can still be considered for a support award.

Click here to read more on calculating child support.

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