A spouse who earns the higher income in the marital household may be required to support the other spouse if the couple separates. The spouse with the lower income, or who has no income, is called the “dependent” spouse. A dependent spouse is entitled to support unless he or she has engaged in conduct which would support “fault” grounds for divorce, or unless he or she has caused the parties’ separation without adequate legal cause.
Fault grounds for divorce are adultery, indignities, cruel and barbarous treatment, imprisonment for a term of two or more years, bigamy, or desertion for more than one year. “Indignities” is a course of conduct that is rude and harassing, thereby rendering the other spouse’s “condition intolerable and life burdensome.” “Cruel and barbarous” treatment is conduct which endangers the life and health of the injured spouse. A spouse who has engaged in any such fault conduct may not be entitled to an award of spousal support. Before a dependent spouse is denied support, the court will examine whether the other spouse is also guilty of fault. When both parties have engaged in conduct constituting fault grounds, support may be ordered.
While desertion does not occur until a wrongdoing spouse has been gone for one year, a spouse’s departure from the marital home, standing alone, may immediately effect a forfeiture of any entitlement to support. Where the spouse seeking support has left the marital home, he or she must prove that leaving was supported by “good cause.” Physical abuse, emotional harassment, and general mistreatment constitute good cause.
If you want to protect your entitlement to spousal support, you must avoid engaging in any conduct which constitutes marital fault. Further, before you leave your household, you should consider whether your spouse has done anything to justify your departure. If possible, and if doing so would create no dangers for you, consider waiting for your spouse to leave first. If you are the higher income earning spouse, remember that the entitlement to spousal support is not automatic; your spouse’s conduct is an important factor affecting that entitlement.
