maintenance

Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing. Pendente lite is latin for “while the action is pending.” Pendente lite orders are not intended to settle the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case. They are supposed to tide things over, so to speak, until the rest of the case can be decided. There are various things that your New York City or Long Island Divorce Lawyer might ask the court to rule upon in a pendente lite motion. Motion practice usually consists of motions, opposition, cross-motions and any reply papers.

Custody and parenting time might be a part of a pendente lite order. This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children. Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved. The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon. A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time. Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.

Exclusive use and occupancy of the marital residence might be requested. Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property. The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties. In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate. Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property. Continue reading ›

Alimony is now known as maintenance in New York. “Pendente lite” (Latin for pending the litigation) maintenance, or temporary maintenance, is a legal term for the maintenance that is to be paid while a divorce case is ongoing. Pendente lite maintenance is different from durational or “permanent” maintenance which is the maintenance, if any, that is to be paid once the judgment of divorce, is granted. Durational or permanent maintenance does not mean maintenance that is paid forever more, if there is any to be paid, as it is usually for some period of time. Maintenance is intended to allow a party to a divorce sufficient time to get back on their feet, so to speak, or to be able to be self supporting. As a New York City and Long Island Alimony Attorney and divorce mediator, I deal with the issue of maintenance every day.

In a divorce mediation or a collaborative divorce cases, the issue of whether there should be maintenance should be discussed to determine if there should be maintenance, the amount, and for how long it should last. How the family can transition from a one household unit to a two household unit is usually the focus in a mediation or collaborative case. Everyone’s budgets are looked at to see how to make things work.

Likewise, in a litigation, the amount of maintenance can be agreed upon. If there is not an agreement concerning temporary or pendente lite maintenance, a party to a divorce litigation would need to make a motion to ask a Judge to order that to be paid while the case is pending. This motion is called a pendente lite motion in the court. Usually all of the things that someone might need a court to order while the case is ongoing should be requested in a pendente lite motion. Typical things to ask a Judge to rule upon might be: temporary custody and parenting time (visitation) of children; pendente lite child support; payment of the carrying costs of the marital residence; exclusive use and occupancy of the marital residence; attorney fees; and expert fees among other requests. Other and future blog entries contain more details about these other aspects, besides maintenance, of pendente lite motions and agreements. Continue reading ›

Articles Posted in maintenance

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