An update on Florida alimony case law: are alimony guidelines a part of our future? .

• Author: Ho, Victoria M.
• Position: Part 2

Many state legislatures are considering the use of alimony guidelines, but few have adopted specific formulas to determine alimony awards. The Georgia and Nevada supreme courts have recommended the adoption of alimony guidelines. Michigan has an alimony guideline committee that has reviewed alimony guideline computer programs and recommends a particular one for use in that state. The developer of the Michigan alimony computer program has also recently developed software to determine alimony awards in Washington and Kentucky as well. Most areas that are using guidelines are doing so on a local or countywide basis.

Pennsylvania has gone a step further by taking alimony factors and incorporating them into actual monetary guidelines that are statutorily mandated in temporary alimony situations. (1) Before the adoption of the guidelines in 1989, all support, including child support and alimony, was determined by analyzing the income and expenses of the parties, their assets, and the standard of living. That analysis led to uneven results from case to case and court to court. (2) On September 6, 1989, the Pennsylvania Supreme Court promulgated new Rules of Civil Procedure which established the Uniform Support Guidelines (3) and mandated that temporary spousal support and child support be determined in accordance with the guidelines unless a deviation was warranted. The purpose of the Uniform Support Guidelines, which is explained in the comments of the rule, is to "promote (1) similar treatment of persons similarly situated, (2) a more equitable distribution of the financial responsibility for raising children, (3) settlement of support matters without court involvement, and (4) more efficient hearings where they are necessary." (4)

Section 3701, Pennsylvania Statutes, lists factors relevant to determining whether alimony is necessary and to determining the nature, amount, duration, and manner of payment. (5) Once the threshold determination that alimony is necessary is made in a particular case, [section] 4322, Pennsylvania Statutes, provides that child and spousal support during the pendency of the dissolution shall be awarded pursuant to a statewide guideline, "so persons similarly situated shall be treated similarly." (6)

The statutory guideline is based on the reasonable needs of the child or spouse seeking support and the ability to pay of the supporting spouse. The guideline emphasizes net incomes and earning capacities of the parties with allowances for special circumstances that warrant deviation from the guidelines. The philosophy underlying the guidelines is that support should be income based. When the guidelines are applied to the incomes of the parties, the result should determine the reasonable needs of the dependent spouse and the ability to pay of the supporting spouse.

Under Pennsylvania law, the amount of support to be awarded is determined under Rules 1910.11 and 1910.12, which provide the procedure to follow to ascertain the guideline amount. (7) The Pennsylvania rules of procedure setting forth the formulas to calculate spousal support may be found on page 88. (8)

Deviations from guideline support are allowed when the trier of fact specifies in writing the guideline amount of support and the reasons for, and findings to, justify the amount of the deviation. (10) The guidelines direct the trial court to calculate spousal support according to the formula in Rule 1910.16-4 and to deviate from the result if any of the factors provided in Rule 1910.16-5 apply.' (11)

In Mascaro v. Mascaro, 803 A.2d 1186, 1191 (Pa. 2002), the Pennsylvania Supreme Court noted that determining spousal support based upon the parties' net incomes and obligor's other support obligations "treats similarly situated persons similarly, which is the goal expressed in [section] 4322 of the Divorce Code." The court also noted that allowing for deviations prevents the "goal of uniformity from leading to an unnecessarily harsh result where findings of fact justify the amount of the deviation." (12)

Pennsylvania emphasizes parties' net incomes, not standard of living, which serves to avoid an inquiry into the parties' frugalness or extravagance. (13) The court pointed out that unlike child support calculations wherein the reasonable needs of a child are a consideration, the reasonable needs...