Post Separation Support


#1

Husband is disabled and dependent spouse. He has a history of drug addiction;(criminal record before marriage) during the last couple years prescription drug abuse became a ‘problem’. He has a medical disability and is on Social Security disability. There is a one year Protective order in place. Because of him being disabled and a dependent spouse, will he be entitled to PSS? Wife’s attorney is saying because of his drug addiction and the DVPO this constitutes marital misconduct which would not entitle him to support. Shouldn’t this be about him being a “dependent spouse”?


#2

You do have to be a dependent spouse to even be eligible for alimony or PSS. However, marital misconduct can block an otherwise eligible spouse from receiving alimony. From the facts you presented, it is possible that he may not be eligible.


#3

Thank you for you response.

You mentioned based on the information provided, husband may not be eligible for “alimony”. . .but what about PSS? We just found out the Social Security disability benefits were terminated because he made too much money in 2008 (less than $5.00). .!!


#4

Post-separation support and alimony both would be a problem for him if she can show he committed marital misconduct, such as abuse.


#5

You were right. . .husband was denied PSS based on marital misconduct (50b part of that) ; however, what should have been a maximum of one hour hearing it went on for 6 hours. Wife’s attorney sited Evans vs. Evans in not awarding PSS/Alimony on marital misconduct. The wife’s attorney was a former judge and the sitting judge indulged her for all these hours (2 court days). Husband’s attorney objected to the extended hours; stating that the PSS hearing was like an alimony hearing and this was unprecedented and judge ignored his objections. It would appear that this is prejudicial.

Is it possible to appeal the decision and is difficult to prove prejudice?

The bigger question now is the phase of ED and assets of the home. . .can he lose that based on marital misconduct? His name is on deed and not mortgage.

Thank you


#6

PSS is not immediately appealable, and since it was denied, my advice is to leave it alone. Martial misconduct (other than financial misconduct) is not listed as a factor to be considered in ED. You can read the full list of factors the courts considers in the statue for equitable distribution, which you can view on the Rosen site.


#7

Thank you. We received the “handwritten” order (formal to follow) from the judge and the last sentence said: “attorneys may submit additional findings of fact for my consideration”.
We found an error in his “handwritten order”; which is “fact” and can be documented; which in our opinion could possible overturn his decision.

Based on the judges last sentence (stated above) this would not be an appeal but he could change his decision. . .correct?

Thank you


#8

Yes, if you object to finding and the judge accepts it, this would not be an appeal, but rather a correction to the order.