Can a Divorce Court Order Temporary Alimony and Living Expenses?

When a New York couple undergoes a divorce, it’s natural for their financial circumstances to change. After all,separating partners are moving from a single-household environment, to a situation where they each must pay their own bills, rent, and expenses.  Or as the couple moves apart emotionally, while still living together they might not be taking care of their financial obligations to each other and the household.  The divorce may draw attention to the fact that one spouse has expenses, such as a mortgage, that they are unable to afford by themselves, and pendent lite maintenance awards help that individual to cover their basic expenses and maintain a particular lifestyle until the divorce is formally settled. Commonly, in a Pendente Lite award, the spouse with the greater income might be required to provide monthly payments to the spouse with less income, or pay for certain bills. Pendente lite can also commonly apply to payments of attorney fees, child custody and temporary child support.

Determining the amount to be awarded in a pendente lite case can be complicated, as it depends on a number of crucial factors to be addressed by the court.  There is a formula for pendente lite maintenance that courts are supposed to follow or enumerate specifically why the court deviated from the formula.  Before the first enactment of the formula for Pendente Lite maintenance in 2010, which law was updated in 2015, the foundation for determining the appropriate level of pendente lite support, a court would look at the needs of the dependent spouse in maintaining a reasonable standard of living, as well as the means held by the supporting spouse, and the level of income required for each spouse to remain comfortable until the finalization of the divorce.

Because the guidelines outlined by the formula for temporary alimony aka pendente lite maintenance in Domestic Relations law is designed to ensure that all of the payee spouse’s basic living expenses are covered – including food, clothing, housing, and other usual expenses, the award is rarely adapted to include additional expenses. For example, carrying costs are generally included in the guideline amount that the formula for pendente lite awards suggests.  In other words the maintenance amount was designed to be used to pay for monthly bills such as groceries, water, telephone, electricity, and gas bills, as well as household repairs and more. However, further awards can be given if the court deems that such an amount is appropriate, based on the consideration of specific factors.

To begin with, the New York Court uses Domestic Relations Law 236(B)(5-a) to determine a presumptive amount of temporary maintenance. After that presumptive temporary maintenance amount has been determined, the court can choose to deviate from the award, with an explanation of why such a deviation is necessary. There are plenty of reasons why a deviation may be considered, which means that pendente lite amounts may regularly end up as less, or more, than the guideline amount. For instance, factors that the court will think about include:

  • The needs of one party to undergo training or education so as to access a job or further their career, as well as the future and present earning capacity of the parties involved.
  • The health and age of each spouse
  • The removal of child support, and the cost of caring for children, stepchildren, disabled adult children, or elderly parents
  • The existence of a pre-marital, or pre-divorce joint household
  • Damage or waste to marital property, including transfers made by one spouse in contemplation of a divorce procedure
  • The cost and availability of medical insurance for parties
  • The standard of living established during the marriage
  • The tax requirements of both spouses
  • Other factors deemed relevant by the court

There are a number of ways to access pendente lite during a divorce procedure. For example, spouses may choose to come to a voluntary agreement regarding how much temporary support should be provided, and a court may decide to support that agreement when it is formally presented to them. Importantly, a lawyer must review an agreement before it is signed to ensure the conditions are fair, as the terms become binding once they are signed by a judge. Alternatively, if spouses cannot come to an agreement regarding support themselves, the court can order a specific pendente lite award when the payee spouse files a Pendente Lite motion and provides documentation of expenses and income.  The payor spouse will have the opportunity to present their side of the story and requests in opposition papers.

The circumstances of pendente lite and what temporary maintenance should cover in a divorce means that it often rests with the New York Supreme Court to determine how much any spouse should be awarded. In other words, courts have some discretion, although the current statute attempted to make it more predictable with the guideline amounts contained in the statute. This is one of the reasons why it is so important for divorcing parties to explain and present their case carefully to lawyers who can present it to the court in a way that highlights their needs and supports their best interests.

Whether obtained through court application or an agreement between spouses, pendente lite maintenance for living expenses is a critical application within the divorce procedure, as it can set the tone for future decisions about maintenance and support. In many cases, a pendente lite consideration might lay the groundwork for final orders given about support rewards and divorce matters.

For more information about matrimonial and family law, as well as details regarding the concept of pendente lite and living expenses, please feel free to schedule an appointment with Mr. Darren M. Shapiro at your earliest convenience. You can contact us for friendly experience and advice either through our online form, or over the phone at: 516-333-6555.

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