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.
Currently, like for child support, there is a formula based on income for the presumptive amount of maintenance that is to be paid pendente lite or while a divorce case is pending. A court can order something other than the guideline amount of temporary maintenance if it finds that the amount is unjust or inappropriate based on factors that are listed in the statute. This formula is a relatively new law that came into effect with the passage of the no-fault divorce law in New York at the end of 2010. Oddly, there is not an income based formula in the law for the amount of permanent or durational maintenance that could be ordered as part of the Judgment of Divorce. The amount of permanent maintenance is to be agreed upon or determined by a court at a hearing or trial based on a consideration of a number of factors that are enumerated in the statute.
The factors to allow a court to order something other than the presumptive amount of temporary maintenance are contained in Domestic Relations Law. The factors include, but are not limited to: the marriage standard of living; the health and ages of each party; the ability to earn of both sides; the care of children or others that inhibits the ability to earn; exceptional additional expenses for the children; and any other factor that is found to be expressly relevant to what is fair. Again, the preceding sentence is just an example of some of the factors that can be considered according to the law. The completed list can be found in the statute.
The law on permanent maintenance remained mostly unchanged with the passage of New York’s no-fault divorce law. The factors to consider in what the permanent maintenance award should be, if any, include, but also are not limited to: the length of the marriage; equitable distribution of marital property; the health and ages of each party; the ability to earn of both sides; the care of children or others that inhibits the ability to earn; exceptional additional expenses for the children; and any other factors that are found to be just and proper. Again, this too is not an exhaustive list of the factors that are listed in the statute but is meant to be illustrative.
I am happy to go over the presumptive amount of temporary maintenance and what might be expected in regard to permanent maintenance with clients or potential clients when acting in my role as an attorney. In a mediation the issue is discussed in the presence of both parties.