It’s common in divorce cases for the less-monied spouse (the one with the lower income) to seek various forms of maintenance from the other spouse. It’s possible to work with your divorce or family law attorney to request both “temporary” maintenance, and post-divorce maintenance or to oppose the request for it, depending which side of the equation you find yourself.
Awards for both temporary and post-divorce maintenance are retroactive to the date of the application, and both forms of maintenance are awarded based on a specific formula. However, temporary maintenance isn’t subject to the same advisory schedule regarding duration. It’s also possible for amounts paid before a divorce is finalized to be considered when calculating the maintenance to pay.
Let’s explore some of the factors which might impact the kind of maintenance payments awarded to the less-monied spouse during divorce proceedings.
How Does Temporary Maintenance Influence Post-Divorce Awards?
One of the first things your divorce lawyers might tell you when applying for maintenance that you should know is that temporary and post-divorce spousal maintenance is awarded retroactively. This means that it is possible to claim payments from an ex-spouse from the date when the application was first made. As such, it is often a good idea for those considering applying for maintenance to do so as soon as possible. The case of Fishman v Fishman, 186 A.D.3d 1199 (2nd Dept. 2020) makes it clear that awards of maintenance should be retroactive to the date of the application. It makes sense that the date of application for maintenance could be construed as when somebody first made a motion for it. However, it is usually construed by the courts to be the date it is first raised in a pleading such as in the request for ancillary relief in the Summons or Complaint or, if for the Defendant in the ancillary relief request in an Answer or Counterclaim. Thomas v. Thomas, 161 A.D.2d 1151 (4th Dept. 1990).
A question that many people have after paying temporary or voluntary maintenance before a divorce is completed, is whether their payments will be considered by the courts. Notably, temporary maintenance does also not influence the rights of either party when applying for post-divorce maintenance awards. However, it is possible for a party who paid temporary maintenance during the divorce proceedings to have their payments considered with a post-divorce order. For instance, the courts may give the paying party credit for any amount already paid, either voluntarily, or pursuant to a pendente lite (temporary) order.
In the case of Sinnott v. Sinnott, 194 A.D.3d 868 (2nd Dept. 2021), for instance, the paying party was found to be entitled to a credit for any amount of temporary maintenance and child support paid already when the case was finalized. The defendant was found to be entitled to credit for voluntarily child support payments made during the pendency of the case. He was also entitled to credit for all temporary maintenance and child support paid following a pendente lite order.
Interestingly, this case also reiterated the fact that maintenance payments are awarded retroactively to the date when the party first applies for maintenance. The Supreme court originally directed the defendant to pay child support and maintenance commencing on the first day of the first month after the decision made after trial. However, this was found to be incorrect, and the appeals court noted that the party’s maintenance and child support obligations should be applied retroactively.
Applying Credits to Maintenance Payments
While payments made voluntarily for maintenance purposes before a case is settled, or as part of a pendente lite payment order can be considered when courts are ordering post-divorce maintenance, they don’t stop post-divorce maintenance from being necessary. The courts can choose to give credits to parties who have paid maintenance before the post-divorce maintenance award is given. However, it’s important to discuss the concept of voluntarily giving payments with your attorney before you begin, to ensure it’s the right step for your case.
In the case of Emmanuel D. v. Ximena D., 2021 N.Y. Misc. LEXIS 5161(S.Ct. Kings County 2021) the plaintiff asked the court to find that he had already paid spousal maintenance in accordance with statutory guidelines, and that no further payments were needed. This request was denied, and the courts drew attention to Domestic Relations Law 236 B(5-a)(n). This law states that a temporary maintenance order should not prejudice or alter the rights of either party regarding post-divorce maintenance awards. Final awards of maintenance can still be awarded for the guideline length or longer even when a continuing award of temporary maintenance was given during the litigation.
It’s also worth noting that credits do not always need to be given to people who pay maintenance fees before a divorce case is finalized. There are cases in which the courts may choose to disregard previous voluntary payments. This is usually the case when an “injured party” in a case needs further financial support to aid their recovery.
For instance, in the case of Jessica T. v Keith T., 2020 N.Y. Misc. LEXIS 2626 (Suffolk 2020) the courts awarded ten years of maintenance payments for the Plaintiff, following abusive and malicious actions during the litigation. The injured party in this case suffered as a result of the defendant’s behavior throughout the trial. In this case, the injuries suffered by the Plaintiff also prompted the court to decide not to take pendente lite payments into account when determining how much maintenance was ordered. The defendant received no credit for 6 years of pendente lite payments.
Calculating Maintenance Payments
In most cases, a spouse who pays maintenance voluntarily before a post-divorce maintenance order is given, or as part of a pendente lite order should be entitled to credit for those payments. However, it will be crucial for the party to ensure such payments are recorded correctly in order to apply for the correct amount of credit. Notably, this credit doesn’t prevent a party from being awarded post-divorce maintenance, or change the attitude of the courts towards the amount of maintenance to be awarded.
What’s more, it is still within the court’s rights to remove the credit from the paying spouse if they deem it necessary to do so as a sanction for inappropriate behavior in the case for example. As mentioned the courts should retroactively backdate the maintenance payment obligation to the date when the application was first made.
If you’re unsure about temporary maintenance, post-divorce maintenance, and credits awarded during divorce cases, it’s best to speak to a divorce attorney for help. You can find more information on this blog, or reach out to my office to arrange a time to discuss your case. Up to the first thirty minutes of your initial consultation will be free.