As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics. I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “Advanced Child and Spousal Support Issues.”
- Arguing Spousal Maintenance: What Works and What Doesn’t
Maintenance is a colloquial term that typically refers to spousal support (“SS”) and/or alimony pendente lite (“APL”) and/or alimony. While SS and APL greatly resemble one another, they do have some distinctions.
SS is the support one spouse is obliged to provide the other one if the other one is unable to be self-supporting. SS can be awarded without an underlying divorce matter as long as, generally speaking, the estranged spouses do not live together. By contrast, APL is support provided by one spouse to the other, who is unable to be self-supporting, during the pendency of a divorce matter, as long as, generally speaking, the estranged spouses do not live together.
Both APL and SS are calculated using the same formula. The payment will amount to 40% of the difference of the parties’ incomes (or 30% if the SS/APL obligor (the person who is obligated to pay support) is already paying the obligee (the person who receives the support) child support).
Many people seem to approach SS/APL as a simple issue of determining which spouse has greater income/assets and, as a result, obtaining an order requiring that spouse to remit funds to the other. While many cases can be that simple, they do not, and often are not, have to be quite that simple. Merely having a lower income or fewer assets does not automatically entitle one to SS/APL; the analysis is a little more complex than that.
In order to receive SS or APL one must prove the assertions made in the typical petition for the same, which generally includes:
- that the obligee cannot support himself (and/or cannot support himself during the course of the litigation);
- that the obligee lacks sufficient property to meet reasonable needs and expenses;
- that the obligee cannot support himself through appropriate employment;
- that the obligee cannot afford necessary and reasonable attorneys’ fees for the underlying case.
As one can see, the focus of the assertions made revolve around the obligee’s ability to pay for and/or afford his reasonable needs and requires the other spouse to help subsidize those needs.
The concepts of “reasonable needs” and “supporting oneself” are vague on specifics and can differ widely depending on the person. Some people may think a Spartan lifestyle is reasonable while others think having some luxury in one’s life is not unreasonable. When discerning what needs are (un)reasonable and whether one can be self-supporting, the first place to look would be the established marital lifestyle as a general guideline. The needs and expenses present in one’s life, which were funded as and by a couple, do not suddenly disappear when that couple separates. Furthermore, the cost to pay for a married couple’s decision to buy a car or a house (of whatever value), for example, does not suddenly become unreasonably expensive when that couple separates. To put it simply: the marital bills need to get paid. Maintaining something similar to a marital lifestyle over the course of the divorce is something which SS/APL strives toward.
Although SS/APL are to help maintain reasonable needs and/or helping someone unable to support himself, this does not mean that the potential obligee is without financial responsibility, nor does it mean that one should (or even could) be immune from the negative financial effects that divorce (or separation) inevitably brings. The focus is on what is “reasonable.”
In order to receive SS/APL one has to demonstrate an actual need for the money. As a result, a look at the assets and income of the person seeking SS/APL is fair game when determining whether SS/APL is appropriate. The goal is to help maintain a standard of living that is reasonably consistent with the standard established during the marriage and if the obligee can do that without any money from a potential obligor, then SS/APL may not be warranted. Any financial discomfort caused by the separation can be remedied through the distribution of the marital assets in divorce.
Of course, the greater the disparity of assets and income is between the parties, the greater the likelihood SS/APL will be awarded as the ability for the potential obligee to maintain a marital standard of living becomes increasingly unlikely as that disparity widens.
There are other defenses to SS/APL other than arguments surrounding the concepts of “reasonable” and/or what it means to support oneself; by contrast, these other defenses are much more straight forward, though what they lack in legal complexity, they more than make up for in a potential for emotionality.
The first defense is that the parties were never married. Only married people can collect SS or APL. This is an obvious defense, perhaps, but there are still some people who can claim a common law marriage and/or seek annulments, and this defense would apply to those cases.
The other defense is to raise an old fashioned “fault” argument (it must be stressed that this is only a defense to SS and not APL). Although rather uncommon in post-modern America, the law still allows for a traditional old fashioned divorce based on marital fault (23 Pa.C.S.A. §3301(a)). The typical marital faults include adultery, abuse, and abandonment, among others. If it can be proved that a potential obligee committed one of these faults, then it will disqualify him from receiving SS.
Voluntary impoverishment, in the context of support, is typically where a potential obligor intentionally, and unreasonably, reduces his income in order to avoid his support obligation. This would appear to be one of the ultimate acts of “cutting one’s nose off to spite his face” as the saying goes: while one is seeking a reduction in support his own actual income is reduced as well. Regardless, there are people who try and reduce one’s support obligation by way of reducing his own income. In the interest of justice and fair play – and in light of the fact that child support is ultimately for the bests interests of the child for which it is ordered – such a tactic will not, generally speaking, be successful in reducing one’s support obligation. It is important to note that the operative aspect to voluntary impoverishment is the word “voluntary.” Being laid off, or suffering an injury, or what-have-you, against one’s will does not amount to voluntary impoverishment.
There are multiple ways to reduce one’s income. The most obvious way is to quit one’s job and remain unemployed or take a new job with a substantially lower salary/wage. Other ways are less immediately obvious: one could reduce one’s hours or stop accepting certain tasks. One could try and make larger contributions to a 401(k) or some other financial vehicle.
When there is an assertion that a party has engaged in voluntary impoverishment, the court looks to earning capacity. Earning capacity is a legal determination made by a court which establishes what a party “should” be able to earn. When determining earning capacity, factors like work history, prior income levels, and level of education are considered. It is important to note that the court will not simply use the highest income one had and determine that to be “earning capacity.” The court typically takes a much more pragmatic approach. For example, if someone worked at “Employer A” ten (10) years ago making $80,000/yr but, for the last nine (9) years has worked for “Employer B” making $60,000/yr, it is unlikely the court will go back to “Employer A” to determine capacity because a work history, and a relative adjustment of lifestyle, has been shown to have occurred over the last nine (9) years. In other words, the most recent employment is most likely to be considered a good measure of earning capacity unless it is shown that this employment was secured as way to facilitate voluntary impoverishment. If it can be shown that an obligor engaged in voluntary impoverishment, the support obligation will be calculated according to the obligor’s assessed earning capacity.
There are times when someone does voluntarily “impoverish” oneself and it does not qualify as voluntary impoverishment as described above. Pursuant to Pa.R.C.P. 1910.16-2(d)(1), there is a general principle that virtually no voluntary reduction of income will result in a reduction in support, but that very same rule leaves open a possibility with its use of the word “generally” (“[w]hen either party voluntarily … [reduces his income] … there generally will be no effect on the support obligation.”). The key element is whether the reduction of income was for the purpose of circumventing a support order. Now it hardly needs to be said that determining the motive for a reducing one’s income is extremely fact intensive and one must be prepared to prove that motive in court.
Enforcement of support is rather straight forward. The vast majority of support cases are enforced through the garnishment of wages/salary. Garnishment is preferred by the law, but it is also preferred by most people in support cases, obligee and obligor alike. Obligees prefer it as their support payments are not dependent upon the actions of the obligor. As one may expect, sometimes an obligor may forget, or intentionally withhold payment, or need to pay it late, and so on, and obligees do well to avoid these vagaries. A garnishment order makes the payment of support absolutely priority over all other non-tax obligations, and avoids the temptation for an obligor to prioritize other bills over his support obligation.
The other typical method of enforcing a support order is through contempt actions for non-payment. Contempt is, generally defined, as a willful defiance of a court order or a willful failure to comply with the terms of a court order.
Enforcement of support tends to be straight forward because the various aspects of a support case are fairly obvious and easily definable. A party (“obligor”) has an obligation to remit a certain amount of funds to the other party (“obligee”) at clearly laid out intervals (typically monthly). Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court. If an obligor fails to fulfill his obligation under a support order, the obligee can file a motion for contempt and request sanctions and enforcement.
Contempt in the context of support are typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.
Contempt in a support matter carries with it two aspects one ought to keep in mind when considering pursuing a support action. The first is a consideration of the obligor’s ability to perform the support order. For one reason or another, a party in a support case is not always a as vigilant as he could be in filing for the modification of a support order. So, for example, an obligor who loses his job (and neglects to modify his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation. This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support. The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability. There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration. While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished. It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.
- Support Modification Procedures and Tactics
In order to modify a support order, the person seeking modification must file a Petition to Modify with the family court.
A modification of support will only be ordered if the person seeking the modification can demonstrate that there has been a change in circumstances since the most recent support order was entered. Changes in circumstances can include: a change in employment status, a change in jobs, establishing a new cohabitating relationship, the birth of a new child, changes to health insurance coverage, and/or changes to extracurricular activities for the children, among other things. If a party is trying to resist modification, attempting to demonstrate that there has been no change in circumstance is, if successful, a viable way to accomplish that goal.
A Petition to Modify is first heard by a support conference officer who receives the information provided by the parties and enters an order based on that information accordingly. The conference officer is not a master or a judge, so very little argument or advocacy will be possible at this point. The support officer will merely receive paperwork and enter the data into his computer software to produce a proposed support order. If a party is unhappy with the support order proposed by the conference officer, he can request a hearing before a master. While a support master is not a judge, he is like a judge in that he holds a hearing that resembles a court hearing, and receives testimony and evidence as a judge would. It is at a master’s hearing that traditional court advocacy can occur. A master’s hearing can include the testimony, examination, and cross-examination of witnesses, the presentation of documents and evidence, and arguments. Upon reviewing all of the evidence and testimony presented at the hearing, the support master issues a support order. The support master’s order becomes a final order in support unless, by the established deadline, one party files exceptions to that order. The exceptions function like an appeal and are heard by a judge. The judge does not hold a support hearing to resolve the exceptions. Rather, the judge hears oral arguments as to whether the support master committed an error of law and/or fact. If the master did commit an error, the judge may enter a new support order taking the error into account, or simply remand the matter back to the master for a new hearing in order to remedy the errors at the prior master’s hearing.
Pursuing the modification of a support order is nearly identical to securing an original order (with exception of having to show a change in circumstances). The parties must ensure the court is presented with accurate incomes and expenses for both parties based on which a support order may be entered.
- Support Termination: When and How
When a typical support case terminates is fairly clear. When it comes to SS or APL orders, the date of divorce is the date that they will terminate. For child support, when the child turns eighteen (18) or graduates from high school (whichever is later) will be the date it terminates (unless the parties have agreed in writing to another date after age eighteen (18)).
Typically, when the eighteenth birthday of a child subject to a support order nears, the court will issue a letter inquiring as to when the child will emancipated (i.e.: turn eighteen (18) or graduate from high school). The obligee is to respond to this letter and confirm the termination of the support order upon emancipation. Unfortunately, courts tend to be overburdened (and do not send the letter in a timely fashion) and/or obligees uncooperative (and do not respond to the letter), as a result it is wise for obligors to file a Petition to Terminate support. This should be filed sufficiently before the emancipation date in order to avoid an over payment. At a hearing for a Petition to Terminate, the obligor must demonstrate that the child for whom support is being paid has been (or will be) emancipated.
There are cases where support can extend beyond traditional emancipation. One way it can last beyond traditional emancipation is if there is an agreement between the parties to do that. Another way is to demonstrate that the child for which support is being sought is disabled in some way which causes him to be unable to sustain himself as an adult. In order to demonstrate disability, the obligee must present evidence from physicians and/or a mental health professional (and the like) to prove that the adult child needs continued support due to a disability. Aside from an agreement or disability, an obligee can pursue college costs and tuition from an obligor for a child beyond the age of emancipation. Now, as he is an adult, the child must provide written consent for his parent to pursue tuition from the other and/or file a claim on his own for it. When looking at a case regarding post-secondary education, the court considers factors like: (1) whether the child made reasonable efforts to secure scholarships and grants (and whether he got them); (2) the financial resources of the parties and student; (3) the student’s interest and willingness in completing the course of study; (4) the estrangement (if any) between the child and the obligor; and, (5) the child’s employment status, and so on. Clearly, this sort of support is highly fact intensive, and is based on what seems reasonable in consideration of all the factors above. In any of these situations, if an obligor believes that the order should be terminated, he is free to file a Petition to Terminate and advocate for that.
Finally, it should be noted that even though a support order is “terminated,” all that means is that the accrual of the order stops. The obligor will continue to be responsible for any arrearage after termination of the order, and the arrears will remain as a debt owed by the obligor until it is fully satisfied, even if that is long after the order is terminated.
- Cases, Rules, and Statutes to consider:
- 23 Pa.C.S.A. §3301(a)
- 23 Pa.C.S.A. §3701;
- 23 Pa.C.S.A. §3702;
- 23 Pa.C.S.A. §4321;
- 23 Pa.C.S.A. §4322;
- 23 Pa.C.S.A. §4324;
- 23 Pa.C.S.A. §4326;
- 23 Pa.C.S.A. §7211;
- R.C.P. 1910.16-1;
- R.C.P. 1910.16-2;
- R.C.P. 1920.31;
- Smedley v. Lowman, 2 A.3d 1226 (Pa.Super.2010);
- Grigoruk v. Grigoruk, 912 A.2d 311 (Pa.Super.2006);
- Stamerro v. Stamerro, 889 A.2d 1251 (Pa.Super.2005);
- Schenk v. Schenk, 880 A.2d 633 (Pa.Super.2005);
- Woskob v. Woskob, 843 A.2d 1247 (Pa.Super.2004);
- Baker v. Baker, 861 A.2d 298 (Pa.Super.2004);
- Teodorski v. Teodorski, 857 A.2d 194 (Pa.Super.2004);
- Prol v. Prol, 840 A.2d 333 (Pa.Super.2003);
- Christianson v. Ely, 575 Pa. 647 (2003);
- Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super.2003);
- H. v. R.H., 900 A.2d 922 (Pa.Super.2006);
- Diament v. Diament, 816 A.2d 256 (Pa.Super.2003);
- Humphreys v. DeRoss, 737 A.2d 775 (Pa.Super.1999);
- Landis v. Landis, 456 Pa.Super. 727 (1997);
- Litmans v. Litmans, 449 Pa.Super. 209 (Pa.Super.1996);
- Calabrese v. Calabrese, 452, Pa.Super. 497 (1996);
- Strawn v. Strawn, 444 Pa.Super. 390 (1995);
- Crawford v. Crawford, 429 Pa.Super. 540 (1993);
- Keller v. Keller, 275 Pa.Super. 573 (1980).