The obligation to financially support a spouse prior to a divorce decree is known as Alimony Pendente Lite ("APL") or Spousal support. Generally, support paid while divorce proceedings are ongoing is APL and support paid without divorce proceedings is known as spousal support.
APL and spousal support are often treated as synonymous because they are calculated the same way. However, they are two different concepts under the law. The biggest difference is that when a party files for spousal support, the support payor may assert the "entitlement defense" while there is no entitlement defense to APL.
The entitlement defense is basically an argument that the plaintiff spouse is not entitled to support for a variety of reasons, mostly dealing with being a "bad" spouse. In S.M.C. v. W.P.C., 44 A.3d 1181 (Pa. Super. 2012), the Superior Court dealt with a textbook assertion of the entitlement defense.
In Pennsylvania, a party does not need to pay spousal support to their spouse "where the recipient spouse conducts him or herself in a manner that would constitute grounds for a fault-based divorce." This would include behavior such as willful and malicious desertion, adultery, or the commission of systematic indignities.
In S.M.C., Husband was emotionally abusive and refused to attend marriage counseling. Wife was terrified to remain in the home, moved out, and eventually began seeing another man.
Husband alleged that this behavior constituted adultery and desertion which would not entitle Wife to spousal support. However, the Superior Court noted that Wife's new relationship began after separation. Under Pennsylvania case law, the misconduct must occur prior to separation. As such, the "adultery" was irrelevant.
With regard to Husband's allegation that Wife "deserted" the marriage by moving out of the marital residence, a claim for desertion may be defeated by a showing that the departing spouse had "adequate legal cause for leaving." Here, the Superior Court found that Husband's failure to attend counseling, emotional abuse, and derogatory messages constituted sufficient cause for her to leave.
The Superior Court affirmed the trial court and required Husband to pay spousal support to Wife. It is important to note, however, that even if Husband's entitlement defense had succeeded, then Wife need only file for divorce and assert a claim for APL. Since the entitlement defense cannot be used for APL, she would receive financial support through that mechanism instead.
Moral of the story: Be sure to hire an attorney who knows the procedural "ins and outs" of support so that you don't need to worry about surprise endings.
