Late-Stage Request for APL Denied Because Petitioner Delayed Divorce

July 06, 2013 | Blog, Court Decisions, Divorce, Spousal Support - APL

Icon for author Brian Vertz Brian Vertz

In an unpublished opinion, the Superior Court affirmed a Fulton County decision denying alimony pendente lite (APL) to an unemployed husband who was accused of delaying the divorce. In DeSaulniers v. DeSaulniersNo. 1386 MDA 2012 (July 3, 2013), the husband and wife participated in master’s hearings to divide marital property in late 2010. A master’s report was issued in the spring 0f 2011. Husband filed exceptions, resulting in a remand solely for the purpose of dividing tangible personal property. In the fall of 2011, shortly after the order for remand, husband filed a request for alimony pendente lite, which was referred to the master. The master denied husband’s request, primarily because he delayed the conclusion of the divorce, but also because he had become unemployed since choosing to move away from Pennsylvania after separation. Husband has previously paid APL to Wife when he was employed in Pennsylvania and earning more than his wife.

On appeal, Husband argued that he was automatically entitled to APL because his income was half of wife’s income; and because the master erred when she found that he delayed the divorce. The Superior Court disagreed, citing Litmans v. Litmans, 673 A.2d 382, 388-89 (Pa. Super. 1996). The Litmans opinion rejected the notion that a spouse is “automatically” entitled to receive APL and set forth three criteria:

The amount awarded as [APL] is within the sound discretion of the trial court and absent abuse of discretion, the appellate court will not disturb the trial court’s award. APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare. APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.

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In ruling on a claim for [APL], the court should consider the following factors: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties.

The DeSaulniers court held that husband had voluntarily impaired his ability to pay APL and delayed the divorce, thereby forfeiting his right to receive APL.

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