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POSTSEPARATION SUPPORT AND ALIMONY
Postseparation support, like alimony, is money paid by one spouse to the other spouse to help pay the living expenses of the other spouse. Postseparation support, often referred to as “PSS,” is a temporary form of support that terminates after the expiration of a certain stated period of time or when the alimony claim is resolved. In most cases, the issues of whether PSS is to be paid to a spouse, and if so, how much is to be paid, are resolved through negotiation and settlement between the attorneys and their clients. In those cases where no agreement can be reached, then the claim for PSS is submitted to court for a resolution.
Not all spouses going through a separation and divorce are entitled to receive PSS. The law requires that the following be established in order for a spouse to receive PSS:
- The spouse seeking PSS must be a “dependent spouse”
- The spouse from whom support is sought must be a “supporting spouse”
- The resources of the dependent spouse are not adequate to meet his or her needs
- The supporting spouse has the means and ability to provide support to the dependent spouse.
The financial needs and condition of both spouses are relevant factors to consider in deciding whether and in what amount PSS should be paid in your case. It is very important that you provide your attorney with pertinent financial documents and information as soon as possible to evaluate your potential for such a claim being pursued on your behalf or defended against, depending on your particular case. While your attorney will direct you to provide specific documents, you can expect them to more than likely include pay stubs, tax returns, bank records and credit card statements going back to at least the year before the date of separation through the date that the most current information is available. A financial affidavit will be required to be completed by you that basically sets forth your “budget” of income and expenses. Your attorney can discuss this with you in more detail. The document is important to determine one’s status of being a dependent or supporting spouse and seeing what funds may be available to be paid in support by a “supporting” spouse or what amount is appropriate to meet the dependent spouse’s reasonable expenses.
As a defense to a PSS claim, the supporting spouse may claim that the dependent spouse has committed acts of “marital misconduct.” If the supporting spouse makes such a claim, the dependent spouse is allowed to claim the supporting spouse has committed acts of marital misconduct. The grounds for finding marital misconduct are set out by statute. Only acts and conduct committed or that occurred during the marriage and prior to the date of separation will support a finding of marital misconduct; however, postseparation acts and conduct can, in certain circumstances, corroborate or support a finding that marital misconduct was committed before the date of separation.
` It is important to understand that marital misconduct does not mean that the spouse is automatically disqualified from receiving PSS. This is one factor that is considered during the judge’s decision with regard to entitlement, amount and duration of PSS. Most judges give little weight to marital misconduct at the PSS stage and treat it as more of a financially based determination. Most of your energy should be spent of the financial aspect of your PSS case, but do raise any marital misconduct concerns you have with your attorney as soon as possible.
PSS, like alimony, is considered “income” by the IRS and, therefore, will be included as income on the dependent spouse’s tax return. Likewise, it is tax deductible by the supporting spouse.
The amount of PSS is determined on a case by case basis, unlike child support. As a result, your cooperation with your attorney in completing an accurate financial affidavit and gathering financial records in a timely manner is particularly important so that your case can be prepared appropriately to maximize your chance of getting the best possible result in your case, whether you are the supporting or dependent spouse.
Alimony is support that is paid by a supporting spouse to a dependent spouse for a stated period of time or until the occurrence of certain specified events, such as remarriage, death or other events that usually are related to some economic factor. Alimony is often referred to as “permanent,” but that term is a misnomer. The use of ther term permanent relates to the time period of alimony often longer than that for PSS. In the past, alimony was often awarded to the dependent spouse until her death or remarriage. The more modern trend is a set period of years of alimony being awarded, typically half the duration of the marriage. In addition, alimony will also terminate upon the dependent or supporting spouse’s death or the dependent spouse’s remarriage or cohabitation as defined by statute and case law – whichever is the first to occur.
Alimony is “income” that is to be reported on the dependent spouse’s tax return and is deductible by the supporting spouse on his or her income tax return.
Alimony is determined after consideration of economic factors that are outlined in the statutes. Those economic factors include length of the marriage, the ages and health of the parties, the income and income earning abilities of the spouses, the standard of living established during the marriage and other economic factors that bear on the parties’ needs and ability to pay. Your attorney will need to discuss with you the facts of your case in order to determine which economic factors apply in your case.
While evidence of marital misconduct does not often play a large role in PSS claims, it may be very relevant to alimony. The statutes provide that a supporting spouse must pay alimony if he or she committed adultery during the marriage and prior to the date of separation. Likewise, if a spouse is considered “dependent” and is otherwise entitled to alimony, his or her claim is barred if he or she committed adultery during the marriage and prior to the date of separation. The issues of marital misconduct may be decided by a jury or a judge, but a judge determines the amount and duration of the alimony award.
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