What’s the difference between spousal support, alimony pendente lite and alimony?

Spousal support and alimony pendente lite (“APL”)  is available to a party prior to the entry of a divorce decree, while alimony would be paid post-divorce. 

The calculation of spousal support and APL is by formula, while alimony is based upon the reasonable needs of the parties.  The duration of spousal support/APL is from the date of filing the complaint until the entry of a divorce decree.  The duration of alimony depends upon many factors, such as the age of the parties and the length of marriage.

Spousal Support /APL

If there are no minor children, spousal support /APL is calculated by taking the difference between 33% of the payor’s net income and 40% of the payee’s net income.  If there are minor children, you calculate the difference between 25% of the payor’s net income and 30% of the payee’s net income.  While the calculation is the same, the support is considered APL if there is a divorce action pending.  If there is no divorce action, the payment is considered spousal support.  There are defenses to a claim of spousal support that are not available when seeking APL.  By way of example, an argument can be made that the payee is not entitled to spousal support since he or she left the marital home or committed adultery.  If one of these defenses is raised and could possibly be proven, it is best for the payee to file a complaint for divorce, which would eliminate the chance that support would not be awarded, as these defenses are not available to APL.

Alimony

The amount of APL/spousal support is not indicative of the amount of alimony.  If alimony is awarded, it could be greater or less than the amount of APL/spousal support. 

Alimony is a secondary remedy and will only be awarded if the dependent spouse demonstrates a need beyond their share of the marital estate.  By way of example, if the dependent spouse receives $5 million in the divorce or earns sufficient income to meet his or her reasonable needs, there will be no award of alimony.  This is the case even if the financially superior spouse earns significantly more money.  The dependent spouse must demonstrate a need for alimony by showing that his or her net income is insufficient to meet their reasonable expenses.  In general, the court will find an expense reasonable if the other party incurs the same amount for the expense, such as a car payment, food, or entertainment.  A party’s expenses could change during the duration the alimony is being paid, and absent an agreement, the alimony would be modifiable if there is a change in income or expenses.

In order to have a better understanding of the difference between spousal support, APL, and alimony, it is best to consult with a family law attorney at Obermayer.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.