Sometimes, a client may ask you about “alimony,” now known as spousal support. There are two different types of spousal support: interim support, which runs generally from filing until 180 days following divorce, and final periodic support, which typically begins when interim ends. Articles 111–117 of the Civil Code govern spousal support.

One might not think it valuable to seek spousal support for indigent clients, particularly if the former spouse does not have substantial means. However, in doing so, you may well obtain additional financial help for your client. It is time and resource intensive to go through bills and documents with your clients, but it is your obligation to present a full picture to the court as to income and expenses. Additionally, where income differentials are extreme, the payor spouse may agree to pay certain bills, including health insurance premiums and other necessary expenses, without actually giving the claiming spouse money. This is allowable and may be in your client’s best interest, so assess the claim appropriately after obtaining all necessary income, expense, and standard of living documentation. At times, particularly with health insurance, it is desirable to continue this coverage, regardless of the income of the claiming spouse. It is all a part of your due diligence in assessing the claims of your client.

The purpose of interim spousal support is to maintain the status quo of the parties without unnecessary economic dislocation during the process of obtaining a divorce. The amount of support is based on the claimant’s needs, the other party’s ability to pay, child support obligations, and the parties’ standard of living during the marriage.1

The burden of proof for interim spousal support is on the claiming spouse. The claiming spouse must lack sufficient income to maintain the standard of living enjoyed while residing with the payor spouse during the marriage. A claimant’s fault does not preclude an award of interim support.2

An award of interim spousal support is within the trial court’s discretion and will not be disturbed on appeal absent a clear abuse of discretion.

• 1La. C.C. art. 113(A).
• 2Scurria v. Griggs, 40,327 (La. App. 2 Cir. 12/21/05), 917 So. 2d 1215.

For an award of interim spousal support, the court looks to the net incomes of the spouses and their reasonable expenses. Thus, if you are preparing an affidavit of income and expenses for your client (the claiming spouse), be sure that you list every expense your client had during the marriage, currently has, or may have in the future. For example, if your client has been forced to move in with relatives due to the physical separation of the parties, be sure to include in the affidavit anticipated expenses for housing, utilities, food, tax on the support, etc., so that the court will fully appreciate your client’s actual expenses. Clearly, the standard of living during the marriage did not include the spouse living with relatives.

However, be cautious. If an expense is only “anticipated” and not actually incurred, the court may want proof of the amount and a reasonable estimate of when it will be incurred. For example, if a claimant spouse is planning on moving from the relatives’ home, and the apartment and utilities will be $1000.00, the court should not consider that expense until it is actually incurred (or a short time before it is incurred). The new apartment is a condition precedent to including the expenses.

On the income side, be sure not to “hide” income, including second jobs and/or rental incomes. Interim spousal support is calculated on net income, so if defending against a claim for interim spousal support, be sure to include all taxes (Medicare, social security, federal, state, and any other obligatory tax) as well as “reasonable and necessary” business expenses. Generally, these expense calculations are made at the discretion of the court, but a basis must be given, so provide evidence of these costs to encourage the court to deduct them from a client’s income.

As with child support gross income, if the obligor refuses to submit income information, the court may impute income pursuant to the wage survey assessment.1  The calculation of income is virtually identical for both spousal and child support, except that spousal support is determined on net, rather than gross income.2  A paying spouse may exclude from net income spousal support payments made to another spouse, but cannot exclude child support payments.3

As with everything else, document your client’s directives in the case file or have the client “sign off” on the decision. If your client is on SSI, spousal support may cause problems with her SSI and Medicaid eligibility. Additionally, although spousal support (interim and final) was an included deduction prior to the 2019 revision to the federal Tax Code, it is no longer deductible by the payor. Likewise, the payee no longer has to claim it as income. However, if the order is prior to 2017, support payments may still be deductible for the obligor and included in income for the obligee.4  Consult a tax professional for more advice.

• 1La. R.S. 9:326(C).
• 2La. R.S. 9:326.
• 3La. R.S. 47:59.
• 4Pub. L. No. 115-97, § 11051.

An award of spousal support is retroactive to the judicial demand date.1  This applies to any initial setting, modification, or termination, but the court can also fix a retroactive date, upon good cause shown.2

The right to claim the obligation of spousal support is subject to a peremptive period of 3 years following the signing of the divorce or the day a judgment terminating a previous judgment of spousal support is signed, if the previous judgement was signed in an action commenced either before the signing of the judgment of divorce or within 3 years thereafter.3  What about a payor who voluntarily pays support? The law further clarifies that in this situation, the peremption occurs three years following the last voluntary payment by payor.4

The right to obtain a judgment for arrearages for spousal support has a liberative prescriptive period of 5 years.5  Note that if the obligation to pay was a conventional one, prescription for arrearages would be 10 years.6  The prescriptive period for an action on arrearages for spousal support is also shorter than the one applicable to actions for arrearages of child support,7  so be mindful of your time calculations.

• 1La. R.S. 9:321.
• 2Id.
• 3La. C.C. art. 117.
• 4La. C.C. art. 117(3).
• 5La. C.C. art. 3497.1.
• 6See La. C.C. art. 3499.
• 7See La. C.C. art. 3501.1.

Interim and final support can be modified when there is a material change in circumstance and terminated when it becomes unnecessary, but remarriage of the payor spouse is not grounds for modification or termination.1

Both forms of support terminate upon the remarriage of the claiming spouse, the death of either party, or a judicial determination that the claiming spouse has cohabitated with another person in the “manner of married persons.”2  Obviously, this is a fact-specific determination. If your client intends to introduce evidence of such cohabitation, be sure that you provide evidence to the court beyond your client’s allegations. To terminate support, the cohabitation cannot be merely a casual romantic relationship. Proof could be witness testimony that they call each other “husband and wife,” bills going to the payor’s residence that are in the romantic partner’s name, or other such evidence.

Except for good cause shown, an award of interim support terminates 180 days after the divorce judgment.3  “Good cause” has not been defined by our courts and must be determined on a case-by-case basis. An example of “good cause” might be the claimant’s disability or a situation in which the claimant is prevented from seeking employment due to circumstances beyond the claimant’s control. Another example might be where the payor spouse is unduly delaying the community property partition to starve the other spouse.

The prior law, providing that interim support awarded while a claim for final support was pending terminated when final support judgment was rendered, has been repealed. Final spousal support obligations now begin only after any interim support obligation has terminated.4

Unlike interim spousal support, which cannot be waived in advance by the parties, the parties can modify, waive, or terminate a right to final periodic spousal support by an authentic act, an act under private signature duly acknowledged, or judicial declaration.5

• 1La. C.C. art. 114.
• 2La. C.C. art. 115.
• 3La. C.C. art. 113(A).
• 4La. C.C. art. 113(B).
• 5La. C.C. art. 116.

Sometimes, payors do not pay. The remedy is to file for contempt of court and request an Income Assignment Order, which is an appropriate enforcement vehicle for both spousal and child support awards. Garnishment under a writ of fieri facias would apply. The maximum income that can be seized for spousal support is 40% of the obligor spouse’s disposable earnings, while for child support, the maximum is 50%.1  There is contrary caselaw out there that a wise practitioner should know about. In January v. January, the Third Circuit held that, unlike child support, spousal support awards cannot be enforced through income assignment.2

Spousal support may be made executory. In an action to make arrears executory for past-due support payments, a court must award attorney fees and costs to the prevailing party.3

• 1La. R.S. 13:3881.
• 294-882, 94-883 (La. App. 3 Cir. 2/1/95), 649 So. 2d 1133.
• 3La. R.S 9:375.