It is possible to be awarded spousal support before a divorce is finalized. Spousal support before a divorce is finalized is typically referred to as pendente lite support. This means the case is pending. This type of support may be broken down in multiple ways, including a portion as being spousal support and a separate portion being child support, in cases with minor children. If you are seeking financial support and need legal advice, our family law attorneys are here to help you. Reach out to us today to learn more about your options for temporary spousal support.
Spousal maintenance is decided on a case-by-case basis. There are basically four ways in which a spouse can get an award of spousal maintenance:
- The spouse from whom spousal maintenance is sought has been convicted or received deferred adjudication for a family violence offense against the other spouse or the other spouse’s child within two years of the filing of the divorce or while the divorce is pending. The duration of the marriage is irrelevant.
- The marriage has lasted for at least 10 years and the spouse seeking spousal maintenance lacks sufficient property or income to provide for her reasonable needs AND is either a) disabled or b) primary caretaker of a disabled child, or c) lacks earning ability to provide for his or her minimum reasonable needs.
- The parties can agree that spousal maintenance be payable for a certain time period.
- If a spouse is a sponsored immigrant, he or she could enforce the Affidavit of Support executed by the other spouse and request that the Court order the sponsor to provide the immigrant spouse 125 percent of the Federal Poverty Guidelines until the immigrant spouse becomes a U.S. citizen or until he or she has earned 40 credits of work history.
How does the Court decide if a spouse lacks earning ability to provide for his or her minimum reasonable needs?
The Court will consider all the relevant factors, such as:
- Financial resources available to each party once their property is divided by the court,
- The education and employment skills of the spouses,
- The time necessary to obtain sufficient education or training to enable the spouse to earn sufficient income, and
- The availability and feasibility of such training.
The Court will also look at factors such as the duration of the marriage, the spouse’s health and age, and how the spouses treated each other. The Court will make a decision on spousal maintenance based on the above factors and anything else that might be important.
The spouse seeking spousal maintenance will also have to demonstrate that he or she has diligently searched for employment, training, and educational opportunities. The due diligence requirement does not apply in cases where the Affidavit of Support is being enforced.
How long will spousal maintenance be paid?
- If a spouse is awarded spousal maintenance because the other spouse has been convicted or received deferred adjudication for a family violence offense within two years of the filing of the divorce or while the divorce was pending, OR the marriage lasted for at least 10 years but less than 20 years, the spousal maintenance award may not remain in effect for more than five years.
- If the marriage lasted for at least 20 years but less than 30 years, the spousal maintenance award may not remain in effect for more than seven years.
- If the marriage has lasted for 30 years or more, the spousal maintenance award may not remain in effect for more than 10 years.
However, the Court may order that spousal maintenance remain in effect for as long as the spouse is unable to earn sufficient income to provide for his or her minimum reasonable needs because of a disability or because he or she is a caretaker of a disabled child.
How does the court determine how much maintenance is paid?
There is no formula to tell you how much spousal maintenance you will be awarded.
Generally, the court may not require that the spouse who is ordered to pay spousal maintenance pay more than the lesser of $5,000 or 20% of his or her gross monthly income.
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