Am I Entitled to Spousal Support?

admin  -  Jan 17, 2013  -  Comments Off on Am I Entitled to Spousal Support?
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In Louisiana, there are two types of spousal support – interim spousal support and final spousal support.

In a proceeding for divorce, a court may award interim spousal support to a party based upon three factors: the needs of the recipient party, the ability of the other party to pay and the standard of living of the parties during the marriage. Interim spousal support generally begins retroactive to the date you filed the pleading requesting the support and can last either through the divorce if no claim for final spousal support is pending, or can extend for up to six months following the divorce if a claim for final spousal support is pending. Practically speaking, because interim spousal support is easier to obtain than final spousal support, you should file the petition for divorce soon after, or even before, you physically separate in order to allow you the most amount of interim spousal support.

If you are considering a divorce in the near future, you should immediately begin to categorize and account for each dollar that goes in and out of your checking account each month in anticipation of providing the court with an accurate account of either your needs if you are requesting the support, or your ability to pay if you are the party being asked to pay spousal support. All parishes require you to file some form of an income and expense affidavit. Click here for an example of what the courts in Jefferson Parish require both parties to complete, file and exchange with the other party at least a week in advance of the hearing. This document is crucially important to complete thoroughly and accurately because this is what the court will solely analyze to determine whether spousal support should be ordered, and if so, how much. The completion of this document should be done thoughtfully and carefully and discussed in detail with your attorney well in advance of the hearing.

Interim spousal support is meant to maintain the status quo without unnecessary economic hardship on the payor party. Fault does not come into play whatsoever in the determination of interim spousal support and interestingly, the caselaw is clear that a spouse cannot contract to waive interim spousal support through a prenuptial agreement or marital contract. Also, the courts generally look at income, not assets available to that spouse. In other words, the courts will not make a payor spouse liquidate assets in order to pay interim spousal support. Both types of spousal support are discretionary, and unlike child support, in that there is no formula, making it harder to counsel on an exact expected figure of support to expect.

A court may award final spousal support to party who is free from fault prior to the filing of the divorce and based upon the needs of the receiving party and the ability of the other party to pay. Generally, the determination of final spousal support is broken into two parts. First, a trial will be scheduled to determine that the receiving party was not at fault for the break-up of the marriage. Once a party has been adjudicated to be free from fault, the court will analyze all relevant factors to determine the amount and duration of final support: income and means of the parties, financial obligations of both parties, earning capacity of both parties, effect of custody of children on a parties’ earning capacity, time necessary for the requesting spouse to acquire appropriate education, training or employment, age and health of the parties, duration of the marriage, and tax consequences. After analyzing these factors, the court will render a decision regarding the amount and duration of support; however, the amount of support cannot exceed one-third of the payor’s net income.

If you think you may be entitled to spousal support, do not wait! Consult with an attorney to discuss the details specific to your case.

~Ashley

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