This is Part Five of a six-post series on family law. This week’s post discusses child support. Previous entries in this series can be found here: Part One, Part Two, Part Three, Part Four.
Post-separation support (“PSS”) and alimony claims are claims for spousal support. An essential requirement for both claims is that the claimant be a “dependent spouse” and that the other spouse be a “supporting spouse.” A dependent spouse generally is someone who is actually substantially dependent upon the other spouse for his or her support and maintenance or is substantially in need of maintenance and support from the other spouse. Basically, this means that the person does not have sufficient income to maintain the standard of living which he or she enjoyed during the marriage without financial support from the other spouse.
At the risk of oversimplification, post-separation support is basically a form of temporary support which is usually payable until the court can resolve the alimony claim. In post-separation support claims, the court can consider a number of economic factors. A dependent spouse will be entitled to an award of post-separation support if, based upon consideration of these factors, the court find that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay post-separation support.
In alimony cases, the court awards alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, the other spouse is a supporting spouse, and that the award of alimony is equitable after considering all relevant factors. The statute lists a number of factors which the court may consider.
Marital fault can play a role in post-separation and alimony claims. In the statutes, fault is generally referred to as “marital misconduct” and includes a variety of conduct, including the following:
- Illicit sexual behavior engaged in by a spouse with someone other than the other spouse;
- Indignities which render the condition of the other spouse intolerable and life burdensome;
- Reckless spending of the income of either party or the destruction, waste, or concealment of assets; and
- The excessive use of alcohol or drugs which renders the condition of the other spouse intolerable and life burdensome.
Theoretically, fault on the part of the supporting spouse is not a prerequisite to obtaining an award of post-separation support or alimony. A judge can make an award of PSS or alimony without any evidence of marital misconduct. As a practical matter, however, the presence or absence of fault may influence a judge, both in regard to the question of entitlement to support and also in deciding the amount and duration of support. Likewise, marital misconduct on the part of the dependent spouse will be relevant to the amount and duration of support. If a dependent spouse participates in an act of illicit sexual behavior during the marriage and prior to separation the court is precluded from awarding alimony. If the supporting spouse committed an act of illicit sexual behavior during the marriage and prior to separation then the court must make an award of alimony, although the amount and duration are within the discretion of the court.
The amount and duration of alimony payments are entirely within the discretion of the court. Unlike child support cases, there are no guidelines for determination of the amount and duration of alimony. Alimony could be a single lump-sum payment, or it could be monthly installments payable indefinitely until the dependent spouse dies or remarries. In our experience, judges typically make an award of alimony limited to a number of years.
If alimony is awarded by the court, the court’s judgment will not be “final.” In other words, the court’s ruling with regard to the amount and duration of alimony payments will be subject to possible future modification in the event of substantial changes in circumstances affecting one or both parties. For example, if the payor spouse is injured and becomes disabled, and experiences a substantial decrease in income, that spouse can petition the court to reduce or suspend future alimony payments. This is not to say that the court grants every such request, but only that such requests may be made and are sometimes granted.
Although alimony is generally awarded for a period of time, it is subject to an earlier termination if either party should die or if the dependent spouse should ever remarry or cohabits with another adult in a sexual relationship.