Yes. You can receive spousal support before the divorce is final. Typically, prior to the divorce being finalized, support is called pendente lite support (which means while the case is pending). Pendente lite support may reference a portion as being spousal support and a separate portion being child support, if applicable. Or it may say the support is unallocated, which means it is meant to cover both spousal support and child support, but a specific breakdown is not provided. The key issue in regard to support while a case is pending is whether or not the support will be taxable as alimony or will not be taxable. In New Jersey, parties, their attorneys, or the court should be specific as to whether support is taxable or non-taxable to avoid any confusion. If there is no language in an agreement or court order that specifically notes spousal support or unallocated support as being non-taxable, it is assumed it is taxable to the recipient and tax deductible to the payor.
You do not have to go to court to obtain spousal support if you and your spouse reach an agreement on support. If an agreement is reached, a consent order can be prepared and filed with the court; but if an agreement is not reached, then you need to file a motion requesting that the court order spousal support. As part of the motion, a detailed budget demonstrating the specific need for spousal support must be provided. Typically, if ordered by the court, support is retroactive to when a motion is filed.
The amount of support paid on a pendente lite basis, or prior to the divorce being final, is not necessarily indicative of the amount of support that may be paid after the divorce by way of alimony. Prior to the divorce being finalized, the court views maintaining the status quo as an important part of the purpose of pendente lite support, but this is not a factor in determining alimony. In addition, a court may be reluctant to impute income to a party who has been out of work while the divorce is pending, but the party will be imputed income at the time of the final judgment of divorce. It is important to have support at a level that is appropriate while a divorce is pending so that neither party has an incentive to drag out the case or prolong the process because they are better off while the case is pending then they would be after the final judgment.
William J. Rudnik. is a family law attorney at Gebhardt & Kiefer, P.C. where he successfully represents clients in Family Law court in matters involving divorce, property division and more.
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