If one spouse didn’t work, is the other spouse liable to pay spousal or child support?

David L. Ladov and Robert I. Whitelaw, family lawyers in Philadelphia, answer:

In Pennsylvania, spousal support is paid usually prior to a divorce action. You can be separated and a party can bring an action for spousal support. During a pending divorce action, it’s sometimes called spousal support, but it’s also often called alimony pendente lite, which is Latin for alimony pending the action. Once a divorce action is completed, if there’s continuing obligations towards the other spouse, it’s called alimony.

Both parties have an obligation to support their children in Pennsylvania. If a parent is a stay-at-home mom and there are young children, they’re probably not going to be obligated to go out and work, and their earning capacity is going to be considered zero.

In Pennsylvania, what the court will first look at in terms of determining a support order for the children and spouse is each party’s earnings. A party may not be earning anything right now, but they may have an earning capacity, so the court’s going to look at earnings or earning capacity. In some instances, they may look at earning capacity even when somebody is currently employed, because the court and opposing counsel may argue that this person is intentionally underemployed – perhaps they had a better job and purposely took a low-paying job to reduce their support obligation – therefore, they should be measured by their earning capacity as opposed to their actual earnings.