Can I Receive Spousal Support Before My Divorce Is Final?
Jul 2, 2015 | Written by: Share|
Clients often ask if they can receive spousal support before a divorce is final, and, if so, if they must go to court to get it. The answer to the first part of that question is yes...you can receive spousal support before your divorce is final.
Typically, prior to the divorce being final, support is called pendente lite support (which means while the case is pending). In some cases, the pendente lite support may reference a portion as spousal support and a separate portion as child support, if applicable. Or it may say the support is “unallocated”, which means it is meant to cover both spousal support and child support, but a specific breakdown is not provided. The key issue in regard to support while a case is pending is whether or not the support will be taxable as alimony or will not be taxable. In New Jersey, parties, their attorneys, or the court should be specific as to whether support is taxable or non-taxable to avoid any confusion. If there is no language in an agreement or court order that specifically notes spousal support, or unallocated support as being non-taxable, it is assumed it is taxable to the recipient and tax deductible to the payor.
You do not have to go to court to obtain spousal support, if you and your spouse reach an agreement on support. If an agreement is reached, a consent order can be prepared and filed with the court. If there is no agreement, then you would need to file a motion requesting the court to order spousal support. As part of the motion, a detailed budget demonstrating the specific need for spousal support must be provided. Typically, if ordered by the court, support will be retroactive to when a motion is filed.
The amount of support paid on a pendente lite basis, or prior to the divorce being final, is not necessarily indicative of the amount of support that may be paid after the divorce by way of alimony. Prior to the divorce being final, the court views maintaining the status quo as somewhat of an important part of the purpose of pendente lite support, while this is not a factor in determining alimony. In addition, a court may be reluctant to impute income to a party who has been out of work while the divorce is pending, but the party may be imputed income at the time of the final judgment of divorce. It is important to have support at a level that is appropriate while a divorce is pending. That way, neither party has an incentive to drag the case out or prolong the process because they are better off while the case is pending then they will be at the time of the final judgment.
William J. Rudnik, Esq. is certified by the NJ Supreme Court as a Matrimonial Attorney. He is also qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Rudnik at 908-735-5161 or via email.