Entitlement Defense to Spousal Support

In Pennsylvania there are two forms of monthly payments one spouse may seek from the other as support after separation: spousal support and alimony pendent lite (APL). APL is available to a spouse while the divorce action is pending, and up until the entire action is complete. Spousal support is available after separation, until a divorce is filed. While spousal support and APL are calculated the same way, both can not be received concurrently.

One major difference exists between spousal support and APL: the paying spouse may claim an entitlement defense against paying spousal support. Entitlement is not a defense to APL.

In Pennsylvania, the law provides that "Married persons are liable for the support of each other according to their respective abilities to provide support as provided by law." This places the burden of support on the spouse, not on the Commonwealth. However, according to Pennsylvania caselaw “where the recipient spouse conducts him or herself in a manner that would constitute grounds for a fault-based divorce,” the paying spouse may have a defense against paying spousal support. A fault divorce in Pennsylvania exists when one spouse has committed, against the innocent and injured spouse, adultery, willful and malicious desertion, or other “such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome."

Therefore, if the paying spouse can establish that he or she is an innocent and injured spouse, and the recipient spouse has committed adultery, willful and malicious desertion, or other indignities that make the paying spouse’s life intolerable and burdensome, that spouse may be able to assert an entitlement defense to spousal support.

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