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The Defense to Spousal Support- Entitlement

An absolute defense to a request for spousal support is "entitlement."

By Attorney Nichole A. Collins, Divorce Lawyer, Harrisburg, PA

Entitlement, or lack thereof, is an affirmative defense to an action for spousal support.  The defense must be raised in a timely fashion, or it will be deemed waived.  A successful entitlement defense involves establishment of fault grounds for divorce or lack of consent or good cause for the separation rendering it willful and malicious.  Fault grounds, include adultery, cruel and barberous treatment and abandonment.  (See link to article on Fault Grounds).  The conduct of the payor is not usually relevant in a support proceeding, which focuses instead upon the payee's conduct, and the payor need not prove that he or she is an "innocent and injured spouse" to make out a defense of nonentitlement.  

For instance, Husband's prior adultery does not excuse wife's subsequent adultery so as to entitle her to continuing support.  However, when the payor has engaged in adulterous conduct over an extended period of time, isolated incidents of transgression on the part of the payee will not provide an entitlement defense.  An entitlement defense on grounds of payee's adultery can be defeated by demonstrating condonation on the part of payor.

However, the defense of lack of entitlement is not available in an alimony pendente lite action because the purpose of alimony pendente lite is different from that of spousal support. Alimony pendente lite is intended to permit the dependent spouse to prosecute or defend the divorce action, regardless of the merits of the case or its ultimate outcome.  An alimony pendente lite recipient is not entitled to delay the divorce proceedings in order to prolong the payment stream, and the order may be terminated in the case of a brief marriage, or the divorce dismissed, thereby terminating the payments.

If you are going through a divorce and have had a claim for spousal support or alimony pendente lite (APL) filed by the other spouse, you should contact counsel before heading into court.  A claim of entitlement should be raised at the first available opportunity.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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