Divorce Litigation Bullet Points 13: Pendente Lite and Temporary Orders

For quite a while now, I have been sharing divorce litigation bullet point guides, summarizing my posts over the years, as a way to assist people looking for more information about the details of divorce. It can be difficult to come to terms with all of the complicated considerations that appear at the end of a marriage. While this blog and my website offer a lot of articles to help you answer some complex questions, you might find these bullet point guides helpful for quick answers to queries.

In this section of our bullet point guide, we will be looking at temporary orders and “pendente lite” orders in a divorce. Pendente lite orders require a party in a divorce to do something “during” the litigation, while the case is pending. This might mean that for the course of the litigation case, a spouse is required to pay maintenance to another.

Can a Divorce Court Order Temporary Child Custody or Maintenance?

In a divorce case, a party, preferably through their child custody lawyers or divorce lawyers can request temporary custody or a “Pendente Lite” order regarding maintenance which would require the spouse with the greater income to provide extra cash to the spouse with less income. The order might also require the more monied spouse to pay certain bills or alternatively the court could order the parties to share the bills in some fashion. Child support for couples with children is another important part of interim orders. The order issued as a “Pendente Lite” solution will only apply to the couple during the litigation. At the end of the case, if it is not settled before a trial, the court will come to a decision about whether long-term maintenance is necessary.

• In a pendente lite order, courts may require the more monied spouse to pay a great percentage of fees for the attorney for the child in a child custody dispute (sometimes they are shared equally and subject to reallocation), attorney fees, and temporary child support. Determining the amount that should be awarded in these cases can be complicated, as it will often depend on a number of crucial factors that the court must address.
• There is a guide for this kind of maintenance that the courts will usually follow contained within the Domestic Relations Law. However, it is possible for the judge to deviate from this formula if they believe it’s necessary to do so. The guidelines for pendente lite and post-divorce maintenance updated in 2015 and took effect in 2016. The aim of this formula is to provide a guideline for Judges to help make an order that is fair for each side and to help ensure that the payee spouses living expenses are dealt with.
• Usually, the New York Court uses Domestic Relations Law 236(B)(5-a) to calculate what an initial level of temporary maintenance should be. After that amount is clear, the court can determine whether it wants to deviate from the award, with an explanation if a deviation is necessary.
• Courts may deviate from the guidelines, but they need to provide a reason why. These reasons might include something to do with the age and health of each spouse, the earning potential of a spouse, or damage or waste to marital property. Courts can also cite any factor that they deem relevant to explain a deviation.

How Do Pendente Lite Orders Work?

Pendente Lite orders can also be made for child support, custody and parenting time, payment of expenses, and other interim matters.  There are various ways to access pendente lite during divorce procedures. Spouses can choose to come to voluntary arrangements regarding the amount of temporary support provided. Courts may decide to support that decision when it’s presented properly following mediation sessions. However, it is recommended that a review lawyer is used by each side to advise each party and review the agreement before it is signed to ensure it is fair.

• If spouses cannot come to terms about an agreement regarding spousal support themselves, the court can order a specific pendente lite order that they deem to be fair. The payee will need to file a pendente lite motion for this, and the payor spouse will have an opportunity to present their side of the story as well via responsive papers. The potential payor spouse may want to file a cross-motion.
• The circumstances of Pendente lite and what temporary maintenance might apply in a divorce will ultimately depend on the decisions of the assigned Justice of the Nassau County or Suffolk County Supreme Court for Long Island cases or the Queens or local New York City or surrounding area court depending where the case is filed. The courts will have some discretion to make their own decisions. However, the parties in the case can also present their side of the story with the assistance of a divorce lawyer to help convince the courts.
• Aside from asking a more monied spouse to pay temporary maintenance, the courts may also request that the spouse also pays for other fees. For instance, the payor might need to continue paying the mortgage in the home where they live when the divorce is being settled, or a litigation is proceeding. The payee spouse may be ordered to share in certain expenses as well.
• If a spouse paying the mortgage on a family home decides to move out of the marital residence, they may need to pay the expenses on the new place where they intend to live, even if there are rulings and the parties are asked to pay mortgage fees for the marital residence. However, there are circumstances where the courts may ask the more monied spouse to pay for the living expenses of the less monied spouse too.

Can Pendente Lite Orders Cover Other Fees?

There are various expenses that a court can order a spouse to pay on the behalf of a less-monied spouse during a divorce. In some cases, it may even be possible for a less-monied spouse to argue that their attorney bills should be paid by the other half as there is a presumption that the monied spouse pay something towards the attorney fees of the less monied spouse. However, it is up to the courts to decide what is fair based on the circumstances in question.

In some cases, the courts may ask for a monied spouse to make various payments to ensure that the other spouse can continue to live and fight for their side of the divorce during the process of the case. However, the presence of a pendente lite order won’t necessarily mean that the spouse will need to continue making payments once the divorce is over.

If you have any questions about the issues raised in this bullet point guide, please feel free to search through our other blogs for more information. You can also contact my office to schedule a time discuss the details of your divorce case. I offer initial consultations, up to the first thirty minutes free, over the phone, in person, and via video conference. Contact my office to arrange your consultation using my online form, or the phone number (516) 333-6555.