New York Spousal Support Lawyer

Pendente Lite Summary

The financial obligations one faces pending a final divorce order can be overwhelming. In order to meet those expenses and maintain the same standard of living prior to the start of a divorce action, a person may make an application for pendente lite support. Interim support, before a final resolution, may also be necessary in order to maintain any marital assets that will be equitably distributed among the parties. Pendente Lite relief may include spousal support, child support, and carrying charges on the marital residence, including household bills and mortgage payments. Pendente Lite support is only temporary and ceases upon a final order of divorce. However, when an award for pendente lite maintenance is granted, the amount owed is calculated from the date of service of the application there for. Most Importantly, an application for pendente lite support can become the foundation of your divorce proceeding in that it give the judge an idea of what your standard of living was like during the marriage and the type of permanent relief you and your family may need.

Upon receipt of an application for pendente lite support, a judge will consider a multitude of factors in deciding whether to grant temporary relief. It is extremely important that your application is well written, reasonable, and includes details of your marriage to best obtain a favorable decision. Primarily the court looks at the reasonable needs of the spouse seeking support and the financial ability of the other spouse to meet those needs. The court will analyze whether the paying spouse will be able to meet his or her own living expenses before the judge grants a pendente lite award. Since pendente lite support is awarded to the extent necessary to enable a party to be self-supporting, the short duration of a marriage is irrelevant. Despite the ability of an applicant to support his or herself, the court may still award pendente lite relief if the application can show a reasonable need for support and the ability of the paying spouse to help finance those expenses. A party is more likely to be awarded interim support if he or she can show the lack of sufficient property and income to maintain the same standard of living as during the marriage in addition to showing that a final resolution is not imminent. The fact that a husband and wife continue to reside together does not bar an interim award of child support.

The amount of pendente lite support the judge may issue involves factoring in the carrying charges on any residences, the marital standard or living, the parties’ income, the deductibility of the maintenance, and the payor’s ability to pay. In computing the payor’s ability to pay and to determine the amount owed, the court may include annual bonuses when calculating the gross income of the payor. Furthermore, in determining the amount of interim maintenance to award the court must consider the tax implications in that he payor’s net income will increase because maintenance payments are deducted. The judge may also order that specific amounts be allocated between both the spouse and the children. In order to pay the necessary expenses incurred from the beginning of the action the court may order that marital assets be distributed prior to trial. In the instance that both spouses have comparable income and remain living together, the court may still order that both spouses contribute to the carrying charges of the marital residence. However, if both spouses remain living together in the marital residence and one continues to pay for the reasonable needs of the other, the court may not award pendente lite support. Nevertheless, if the voluntary payments made by one spouse are insufficient to meet the reasonable needs of the other and their children, the court may award interim maintenance in an amount that exceeds the voluntary payments.

The existence of prenuptial and postnuptial agreements may be considered in the judge’s decision to award interim support. Even though a pre-nuptial agreement may contain a provision which waives spousal maintenance, temporary maintenance may still be awarded prior to a judgment of divorce. However, if a parties’ prenuptial agreement waived award of pendent lite counsel fees, the court may not award interim counsel fees to litigate a custody battle. Additionally, a pre nuptial agreement that prevents a spouse from receiving interim maintenance will be enforced unless the agreement is unconscionable or there is a likelihood that the spouse will become a public. An award of interim child support may be granted despite a provision in a post-nuptial agreement that bars an award of temporary maintenance. Pendente lite child support may be awarded when child support provisions in a separation agreement are unenforceable where they to do not contain language required by DRL 240. Furthermore, where the husband promised to pay the carrying charges on the marital residence until its sale, and the wife moved out in reliance on this promise, the court ordered him to temporarily pay the past-due and future carrying charges on the marital residence until its sale.

Appeals from an order awarding temporary maintenance and child support are not encouraged. Yet, when an award for support pendente lite is deficient and trial is not imminent due to the likelihood of prolonged discovery and financial disputes, it can be modified. A speedy trial is ordinarily the proper remedy to rectify inequities in orders awarding pendente lite relief. However, if the amount ordered is so excessive that it depletes the payor spouse’s assets and income in effect preventing him or her from meeting their own expenses, the award may be decreased. Furthermore, where there is an extreme difference in the financial positions of the parties in addition to increased needs, the court may grant an upward or downward modification for maintenance. Additionally, the court may decrease the equitable distribution award at trial where it is found that the pendente lite award was overly excessive.

Whether provided voluntarily through a mutual agreement or by a court application, pendente lite support is one of the most significant applications in your divorce proceeding. A final support award can be higher or lower than the pendente lite support. Although the contents of a pendente lite motion are fact sensitive the factors mentioned above are those most commonly considered by the court.

Contact a New York spousal support lawyer to learn more about alimony pendente lite.