The common understanding of an alimony pendete lite (or “APL”) award is that it is a relatively strict economic analysis based on incomes. Due in large part to the prominent reference to “alimony” in this term, it is commonly assumed that APL is treated like alimony in the sense that it is taxable income to the recipient (true) and terminable based on co-habitation (false).

The Pennsylvania Superior Court highlighted this latter fact in a recent ruling in the Childress v. Bogosian case. In that case, the Wife was awarded APL though she was “partially” cohabitating with her boyfriend. The hearing master made a recommendation that Husband be awarded 55% of the marital estate and 60% of the real property that he acquired. The master also applied a retroactive 20% downward deviation in APL due to Wife’s cohabitation and terminated Wife’s APL award that year. 

Wife filed exceptions to the Master’s decision and the trial court granted her exception related to the termination of the APL award, reinstating the award for an additional two years until the Decree was finally entered. Husband then appealed the case and that issue, among others, to the Superior Court.

The Superior Court’s perspective on this issue is that APL is designed to “maintain the standard of living enjoyed during the marriage, so that both parties have equal financial resources to pursue the divorce even though one party has the major assets.” Citing precedence, the Court also noted that “APL may not be denied on the basis that a spouse is cohabitating with another.”

In upholding the trial court’s decision to extend APL payments two years and not take into consider Wife’s cohabitation as grounds for terminating APL, but justifying the downward deviation. The court also recognized the element of husband’s direct impairment of wife’s finances by his willful failure to pay APL payments during the pendency of the divorce.

 

Unlike in an alimony award co-habitation by an APL recipient will not result in a termination of the support award, but one could expect the facts related to the contribution by the recipient’s paramour will be taken into consideration.

We are often asked whether the negotiation process in divorce is admissible in the proceeding. “If I agree to take the house at $400,000, will that bind me if we can’t close on that number and the case goes to trial?” “If we said we would take 30 months of alimony at $3,000 can I demand more later if my spouse does not accept?” The answer to both questions is yes. Negotiation is meant to be an open set of transactions and one is not bound until a contract (offer and acceptance) is reached. Furthermore, in order to encourage these kinds of negotiations, the Rules of Evidence forbid the introduction of what proposals were made during negotiations. Thus if my client says: “Dear husband, I will buy out your interest in the house at $400,000, if you will pay me thirty months of alimony at $3,000” the offer will not be admissible to prove that the house is worth $400,000.

But there are times when Courts will hear testimony about negotiations where the purpose is not so much to prove the terms of a negotiation as the fact that the negotiation was conducted in bad faith. The classic example is in the realm of custody. Many counties send the parties to mediation before a custody hearing is held. The mediation is supposed to be confidential; the rules say so. And this means that you can pretty much say what you want in mediation. But let us say that on Monday you go to mediation and you spend an hour or two negotiating over whether your spouse gets the kids Thursday to Sunday or Friday to Sunday. No settlement is reached. Five days later you are in Court. Your “court” position is that your husband is a drug addict and a pedophile. Unless you just learned of his wayward ways in the days between the date of the mediation and the court appearance, you will probably be asked pointedly how you were willing to agree to overnights on Monday at mediation when it was your official position that there were substance and sexual abuse issues hanging in the wings. The purpose of admitting this testimony is to show that you are an unethical negotiator willing to make false threats to advance your legal position. Not good.

This does not come up so much in the economic side of the divorce. It can in situations where a spouse offers to “take” an asset for one value but demand a completely different value for the same asset if he is “giving” it. The fun here usually revolves around household contents and their value. Let’s say husband has moved out and left most of the contents behind. In negotiation he asserts that the contents were worth $20,000. Wife counters saying that she will give him the contents in exchange for an additional $20,000 in cash or retirement. If husband rejects that proposal, the offer may be used to show that attorney’s fees and time were wasted on frivolous negotiations. It does not however, help us determine the value of the contents.

One other point should be considered that does not have to do with the law but the ethics of negotiation. Negotiation is intended to narrow issues. As issues narrow, doors should start to close. Wife wants 62% of the assets. Husband offers 52%. Wife wants 4 years of alimony. Husband offers two. For purposes of trial, no one is bound by these assertions. But if Wife’s next offer is that she wants 62% and five years of alimony, and I am husband’s counsel, I stop the train and announce that my client and I are getting off. The only credible basis to increase a demand during the negotiation process is if there is new information that makes the reversal of position fair or appropriate. If wife discovers that she has a health condition, that might justify negotiating backwards and increasing her demand. But absent new information, a party should recognize that in negotiation, as issues and positions narrow, one cannot go backward without losing credibility and putting your lawyer in a similar position. This problem often arises in negotiations over property in tandem with alimony. It often occurs that months will be spent working out an asset split. When agreement is finally reached, one party re-opens the door and suggests that it is now time to discuss alimony. The other party responds that the whole basis of making a disproportionate split of assets was premised upon the fact that there would be no alimony. If alimony or counsel fees are going to be part of the negotiation, get those terms “on the table” early in the process so time is not wasted creating a false hope that settlement is near.

As practitioners we advise clients that if they cohabit after they have been divorced they will most likely not receive alimony. 23 Pa.C.S.A. § 3706 provides that, “no Petitioner is entitled to receive an award of alimony where the Petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the Petitioner within the degrees of consanguinity.”  It is important to note however that in cases resolved by property settlement agreements, this section applies only if the agreement contains language that cohabitation terminates the alimony obligation. Van Kirk vs. Van Kirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). 

What determines whether parties are cohabitating? The Divorce Code fails to define cohabitation. However, the courts have generally defined cohabitation as “two persons of the opposite sex resid[ing] together in manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means.” Miller v. Miller, 508 A.2d 550, (1986). This case appears to follow some earlier trial court precedent such as Soby v. Soby, where the Montgomery County Court of Common Please said that alimony would not terminate because of the amount time a person spends with another unrelated adult, but needed to be supplemented by a showing of support in a financial sense. 113 Mont. Co. L. R. 406 (1983)

 

When an issue of cohabitation arises, it becomes a matter of evidence. How much evidence can be obtained to show that the alleged “cohabitors” are in fact linked financially, socially, and sexually. Interestingly, the cases do not clearly articulate how much evidence is enough to prove cohabitation. So, when advising your client regarding cohabitation, it is important to make sure that they understand the “haziness” of the definition of cohabitation, and the difficulty with proving (or disproving) cohabitation. 

The following is my "Top 7" list of "family law misconceptions" that I frequently hear from new or prospective clients.  The list is by no means exhaustive and assumes that there is no pre or post-nuptial agreement in place which might already address the issue.  Likewise, as other states have different laws and procedures, this list is limited to Pennsylvania.

  1. “There is no alimony in Pennsylvania”.  I am constantly amazed at how many new clients believe that alimony does not exist in Pennsylvania.  Let me set the record straight: alimony is alive and kicking in Pennsylvania.  Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.”
  2. “If my spouse committed adultery, I will not be obligated to pay him/her alimony”.  Of the clients who are aware of the existence of alimony in Pennsylvania, many believe that adultery is a bar to a claim for alimony.  Marital misconduct occurring during marriage is only one of 17 factors under §3701(b) of the Divorce Code to be considered in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony.  It is not a bar, just a factor.
  3. “It only takes 90 days to get a divorce”.  Under even the best possible circumstances, it will take more than 90 days from the date of filing a divorce complaint until the entry of the decree.  I usually tell people that the best case scenario is 4½ to 5 months, assuming that both parties fully cooperate, there is a signed agreement disposing of all economic issues, the court is not backed up,  and, most importantly, the stars are in perfect alignment.  The worst case scenario could be several years or more depending upon the circumstances.
  4. “My spouse is not entitled to any of my pension”.  Many clients believe that his/her spouse is not entitled to any portion of their pension since they worked for it.  To the contrary, if the pension was acquired or increased in value during the marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
  5. “My spouse is not entitled to any asset that is titled solely in my name”.  How an asset is titled has very little to do with whether or not it is subject to division and/or distribution in a divorce.  The general rule is that if an asset is acquired or increases in value during marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
  6. “The marital property gets split 50/50”.  While marital property is often divided between the parties on a 50/50 (equal) basis, the circumstances may warrant a disproportionate division.  Pennsylvania law requires that the marital property be divided in an equitable fashion based upon a consideration of 11 factors set forth in §3502 of the Divorce Code.  "Equitable” means fair, not equal.  Therefore, if the equities weigh in favor of one spouse, he or she will likely receive more than 50% of the marital property.
  7. “If I quit my job, I will not have to pay support”.  This is one of the more popular misconceptions.  Support obligations (i.e. support for a child or spouse) are determined based upon actual income or earning capacity.  If someone quits his or her job without an extremely good reason, their support obligation will be determined or will continue based on their established earning capacity.  A frequent response that I hear when I tell people this is, “then they can just put me in jail.”  That, however, it not a misconception for someone who deliberately takes action to avoid their support obligations.  It may take some time, but under the right conditions, jail may be a reality.

I just saw an article on CNN about a man in Seminole County, Florida who is required to pay lifetime alimony to his former spouse, a woman who now has undergone a sex change operation and is living as a man.  I’m scratching my head about this and am not sure that I have an opinion.  The legal expert retained by the local television news station was of the opinion that there was no way that the order for lifetime alimony should be modified or terminated, as the payment of alimony was based upon the parties’ relationship prior to divorce, and nothing that occurred after divorce should matter.  Interesting, to say the least.

The video news story can be found on the CNN Law Page today.