How Much Is Too Much?

How much is too much? When calculating spousal support or separate maintenance, does there come a point when the award is excessive? Few practitioners may be aware that in a handful of jurisdictions, temporary spousal support is calculated by a rigid formula based solely on the litigants' incomes, without regard to the actual need of the dependent spouse. This article focuses on the spousal support Guidelines in Pennsylvania, the only state in the country to employ a flat 40% calculation of the difference in the incomes of payor and payee to determine the award.

How It's Done in PA

In Pennsylvania, Rule of Civil Procedure 1910.16-4(a) Part IV of the Support Guidelines provides for the calculation of spousal support and alimony pendent lite, both forms of temporary spousal support pending the litigation of a divorce matter. The Rule provides support for the financially dependent spouse from the time of the parties' separation until a divorce decree is entered, and requires the spouse with higher earnings to pay the other spouse 40% of the difference of the parties' net monthly incomes when there is no child-support obligation and 30% if there is a child-support obligation. As mentioned, Pennsylvania is the only state to use mandatory spousal support guidelines. The theoretical basis for this Rule is not stated in the Guidelines, although many claim the Rule produces consistent results and thereby fosters settlement. Unfortunately, this rule results in exactly the opposite result, since a particularly high number gives no incentive to the recipient to settle the case and stop this cash flow.

A Faulty Presumption

This Rule is also seemingly based on the faulty presumption that every married couple spends every cent they earn. If the parties lived a modest lifestyle, despite the fact that the independent spouse earned a substantial living, the dependent spouse receives a windfall upon separation by collecting 40% of the independent spouse's net income, which is wholly inconsistent with how the parties lived during the marriage. If the parties traditionally saved part of the household income during the marriage ' i.e., converted the income to assets ' the dependent spouse becomes entitled to a sizeable portion of the independent spouse's post-separation, non-marital asset (income), despite a statutory directive in Pennsylvania that all assets acquired after the parties' separation are excluded from the marital estate. While few would disagree with the well-settled
principle that assets earned during marriage are marital assets and subject to distribution despite which party earned the assets, the same rationale does not apply in Pennsylvania to assets acquired post-separation.