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ABOUT PENDENTE LITE
Please note: As of October 25, 2015, there will be new standards of determining temporary maintenance in the state of New York. You can review these key changes on our spousal maintenance page. For more information on how these new laws might affect your current or upcoming divorce, contact our office today.
1) Modifying an Award of Temporary Maintenance
Pieri v. Pieri: When an award for support pendente lite is deficient, it can be modified; however, a speedy trial is the preference.
Decision: Order modified so as to increase the award of temporary maintenance and child support to a total of $200 per week and to direct defendant to continue to pay the mortgage, interest, taxes, insurance, fuel bills and other related costs on the marital residence. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Although appeals from orders awarding temporary maintenance and child support are not to be encouraged and a speedy trial is the preferred remedy for resolving such the rule is not ironclad when the award is deficient. It appears that since the parties separated, defendant has voluntarily been paying various household bills and making most of the payments necessary to maintain the marital residence. In addition, he has been giving plaintiff the sum of $200 per week to cover other expenses. These payments would appear to constitute a reasonable and sufficient award. This is especially so under the circumstances here present, where there are three children and plaintiff is unemployed, 46 years of age and a housewife with no employable skills and an apparent inability to speak English well.
York v. York: A pendente lite order of support may be modified if it is so excessive that it depletes the payor spouse’s assets and income preventing him or her from meeting their own expenses.
Decision: A speedy trial is ordinarily the proper remedy to rectify inequities in orders awarding pendente lite relief. Nevertheless, in the interest of justice, this Court may substitute its discretion for that of the Supreme Court when the court-ordered payments are so prohibitive so as to prevent the payor spouse from meeting his or her own financial. In the case at bar, it appears that the cumulative pendente lite financial obligations imposed upon the defendant by the Supreme Court exceed his income. However, we also note that there is conflicting evidence as to his financial condition. Under such circumstances, a new hearing is warranted, to the extent indicated above, with respect to the plaintiff’s application for pendente lite relief.
Kramer v. Kramer: The court granted an increase in the amount of interim maintenance due to the extreme difference in the financial positions of the parties in addition to increased needs.
Decision: Although plaintiff did not expressly move for an upward modification of maintenance and child support, we, as did the Supreme Court herein, deem her application for the court to direct defendant to pay the rent on her present residence, and the relocation expenses plus certain baby-sitting expenses, a motion for upward modification of pendente lite relief.
There is a great disparity in the relative financial positions of the parties. The husband earns an annual income of some $1,000,000 while the wife makes close to $20,000 per year. Although any inequity in a temporary maintenance award should be remedied by a speedy trial, under all the circumstances herein, including the gross disparity in finances and the increased needs of the plaintiff, an upward modification of interim maintenance and support is.
Purpura: When trial is not imminent due to the likelihood of prolonged discovery and financial disputes, the Appellate Division granted an upward modification of temporary support.
Kansky: Where a substantial change of circumstances exist such that the wife obtains a large increase in salary, her husband was granted a downward modification of interim support payments.
Decision: Domestic Relations Law 236(B)(9) permits either party to apply for a modification of any order for maintenance and support upon a showing of a substantial change in circumstances.In this case, the undisputed evidence shows that within a few months after the original pendente lite award, the plaintiff wife obtained full-time employment at an annual salary nearly three times as much as her prior salary. Since the ability of the recipient spouse to be self-supporting is one of the many factors to be considered in awarding maintenance or child support, the court should have exercised its discretion to modify its original award.
Gad: The court may decrease the equitable distribution award at trial where it was found that the pendente lite award was overly excessive.
2) Factors Considered in Determining Whether Temporary Support Should Be Awarded.
Rigberg: In determining whether to award temporary maintenance, the court must examine the reasonable needs of the spouse seeking support and the financial ability of the other spouse to meet those needs.
Decision: In matrimonial action, Supreme Court, Nassau County, Balletta, J., awarded wife sum of $400 per month temporary maintenance in the event she resided in marital residence or sum of $600 per week temporary maintenance if she resided elsewhere and directed husband to pay carrying charges on marital residence and parties’ second home and husband appealed. The Supreme Court, Appellate Division, held that: (1) in view of the fact that there were two residences available to adequately accommodate separate housing needs of each spouse, alternative temporary maintenance award of $600 per week in event wife resided elsewhere was inappropriate, and (2) special term order directing husband to pay carrying charges on marital residence and second home was not invalid as open-ended obligation.
Davey: The trial court must first analyze whether the husband is able to meet his own living expenses before is grants a pendente lite award.
Decision: a pendente lite award may be modified when it is “so prohibitive that the payor spouse is prevented from meeting his or her own financial obligations”. The pendente lite award was entered without analysis of the parties’ reasonable needs, including the husband’s need to meet his own living expenses, and the wife’s current income and ability to earn income. As part of her monthly expenses, the wife declared over $5,000, constituting minimum payments of credit card debt for “general household” and “clothing” expenses. The record does not indicate whether these debts were legitimate marital debts, or constituted waste of marital assets. Similarly, there is no evidence in the record as to what the home equity loan was for.
McCarthy: Since pendente lite support is awarded to the extent necessary to enable a party to be self-supporting, the short length of a marriage does not need to be considered.
Ravel: The court awarded interim maintenance of $500 per week based on her reasonable needs and the Husband’s financial ability, even though the wife was able to support herself.
Decision: While plaintiff contends the award of temporary maintenance was insufficient, defendant contends no award should have been made because of the existence of the agreements. However, defendant had ceased paying plaintiff support, as set forth in the agreements. Where such payments are not made, the court may provide temporary support. An award of temporary maintenance is fixed to insure the reasonable needs of the spouse during pendency of the matrimonial litigation. Here, the court properly reached an accommodation between the reasonable needs of the moving spouse and the financial ability of the other. This was not a long-term first marriage with dependent children. Plaintiff herein had a substantial investment portfolio and the proven ability to support herself.
Stern: Where a party has demonstrated an immediate need for support, lacking sufficient property and income to provide for his or her reasonable needs and it does not appear that the trial of the action is imminent, pendente lite support should be awarded.
Decision: A court must, however, set forth the factors it considered and the reasons underlying its determination on an application for temporary maintenance. The predominant consideration for the court in determining whether or not to grant temporary maintenance pursuant to section 236 (B)(6) of the Domestic Relations Law is the financial need of the party making the application mod on other grounds. An award of pendente lite maintenance is generally appropriate where a party has demonstrated that he or she has an immediate need for support inasmuch as he or she “lacks sufficient property and income to provide for his or her reasonable needs, and it does not appear that the trial of the action is imminent.” In determining the amount of such a temporary maintenance award, the court must arrive at an accommodation between the “reasonable needs” of the spouse making the application and the financial ability of the other spouse to provide for those. Defendant is subsisting on a limited fixed income consisting only of Social Security disability benefits. The severe chronic illness from which she is suffering has greatly increased her expenses and has prevented her from returning from her mother’s home in Florida to New York to participate in a trial of the action. The financial affidavit submitted by plaintiff indicates that he has sufficient income and resources to pay the increased temporary maintenance needed by his wife without jeopardizing his other obligations.
Koerner: Where it is necessary to maintain the reasonable needs of the child pending litigation. The fact that the parties continue to reside together does not bar an interim award of child support.
Decision: Contrary *298 to defendant’s assertions, the fact that the parties continue to reside together does not bar the award of child support, where, as in this case, there has been a showing that the award is necessary to maintain the reasonable needs of the child during the litigation.
3) Factors Considered in Determining the Amount of Temporary Support to Award
Havell v. Islam: In order to pay necessary expenses incurred from the beginning of the action, the court may order that marital assets be distributed prior to trial.
Fricke: The amount of pendente lite support awarded must include the reasonable needs of the wife as well as the children and should be allocated between the two.
Decision: Order modified by deleting there from the words: “The defendant is directed to pay to the plaintiff pendente lite the sum of $800 per month as and for temporary maintenance and support for the infant issue of the marriage” and by substituting the following: “The defendant is directed to pay to the plaintiff pendente lite the sum of $700 per month as and for temporary maintenance and $100 per month as and for support for the infant issue of the marriage.” As so modified, order affirmed, without costs or disbursements.
Bernstein: After factoring in the carrying charges on various residences, the marital standard of living, the wife’s lack of income, the deductibility of the maintenance, and the husband’s ability to pay, the court awarded interim maintenance and child support of $8,600 per month.
Decision: In view of the parties’ marital standard of living, the defendant’s lack of any independent source of income, the plaintiff’s clear ability to make the payments, and the fact *170 that any maintenance award would be taxable to the defendant and deductible by the plaintiff, a pendente lite award of maintenance and child support totaling about $8,600 per month, plus the carrying charges on the New York City apartment, would be appropriate (see, Furthermore, the court erred in failing to make the pendente lite award retroactive to the date of the first application With respect to the defendant’s requests for interim counsel fees and interim accountant’s fees, it is well settled that such fees are properly awarded in order to enable the movant to prosecute or defend the action, or to carry out necessary disclosure, as the case may be It is readily apparent from the plaintiff’s failure to file a complete net worth statement and from his claims that most, if not all, of his assets are separate property, that the litigation in this case may go on for some time. In light of the defendant’s present inability to pay such fees, and in light of the plaintiff’s ability to pay for the same, the defendant is awarded interim counsel fees of $30,000 and interim accountant’s fees of $5,000, said fees to be payable within 30 days after the service of a copy of this decision and order upon the attorneys for the plaintiff. However, the defendant’s request for real estate appraisal fees was properly denied with leave to renew upon proper papers since the defendant failed to supply an affidavit from an appraiser detailing what his or her services would entail and the estimated time involved.
Ellison: When the parties were both employed, lived in the marital residence, and have comparable incomes, the court awarded the husband $250 per month to be put towards the carrying charges of the residence.
Decisions: Since there is no indication that the needs of the children are not being met by both parties, and since the wife’s income is adequate to meet her own needs, we decline to disturb that portion of the Supreme Court’s order which denied her application for temporary maintenance and child support. Moreover, although there is a difference in the parties’ incomes, the denial of the wife’s application for counsel fees did not constitute an improvident exercise of discretion However, we modify that portion of the order which directed the wife to bear one half the cost of the carrying charges on the marital residence to more accurately reflect the parties’ respective financial conditions.
Nordgren: The court did not err in considering the husband’s bonuses when calculating his gross income to determine the amount of interim maintenance to award.
Decision: The husband’s contention that the Supreme Court improperly included his annual bonuses in calculating temporary maintenance is without merit. In computing an award of temporary maintenance, this Court has included the bonuses given the payor spouse as gross income. Lastly, it is evident from the record that the husband had exclusive control of virtually all of the family’s finances throughout the marriage, and, on or about the date of the commencement of the instant action, he withdrew $35,000 from an equity/money market account. It was therefore appropriate for the court to enjoin him from disposing of any marital assets.
Biasco: In determining the amount of interim maintenance to award the court must consider the tax implications. The payor’s net income will increase because maintenance payments are deducted.
4) Duration of Pendente Lite Award
Flynn: Upon a final Order of Divorce, a temporary maintenance award stops.
Dooley: When an award for pendente lite maintenance is granted, that amount owed is calculated from the date of service of the application there for.
Decision: We find that the temporary awards of $125 per week to the plaintiff for her maintenance and $2,500 in counsel fees are reasonable in light of the relative financial circumstances of the parties. The court erred, however, in failing to make the temporary maintenance award retroactive to the date of the plaintiff’s application. Domestic Relations Law 236(B)(6)(a) provides, in part, that “in any matrimonial action the court may order temporary maintenenace… Such order shall be effective as of the date of the application.” Consequently, the statutory language requires the court to make its order effective as of July 31, 1985, the date of service of the application.
7) The Effect of Agreements on Awarding Pendente Lite Support
Solomon 5: Even though a pre-nuptial agreement contains a provision which waives maintenance, temporary maintenance may still be awarded before a judgment of divorce.
Decision: While a prenuptial agreement might restrict or waive a spouse’s right to maintenance and equitable distribution, it does not bar temporary relief, including temporary maintenance, interim counsel fees, and a temporary injunction against the disposing of marital property The amounts awarded for interim counsel fees and maintenance both appear to be reasonable. The parties’ remedy for inequities in this regard is a speedy. It was also a proper exercise of discretion to temporarily restrain defendant from, inter alia, transferring or disposing of marital assets except for ordinary and routine living and business expenses, since defendant retains exclusive control over virtually all of the parties’ assets, and his unilateral decision to transfer, sell, or otherwise encumber such assets would serve to deprive plaintiff of her equitable share *332 thereof under the parties’ prenuptial agreement.
Demis 2: An award of interim child support may be granted despite a provision in a post-nuptial agreement that bars an award of temporary maintenance.
Decision: Where, as here, there is an existing agreement which controls the respective support obligations of the parties, support is not in issue in a subsequent matrimonial action unless and until the support terms of the agreement are set aside. Our vacatur of Supreme Court’s award of maintenance is based upon the fact that defendant had been voluntarily paying plaintiff $300 per week, without 30% reduction, as well as providing her household expenses, health insurance, reimbursement for necessary uncovered medical and dental expenses, and the use of a reliable automobile, which we deem to be necessary for plaintiff’s fundamental support.
Karbassi: Where a wife has waived support in a settlement agreement that was incorporated in the judgment of divorce, the court may not award pendente lite maintenance.
Meehan: 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.
Decision: The parties’ antenuptial agreement, which the plaintiff did not seek to invalidate, precludes the award of pendente lite attorneys’ fees.
Gralnick: 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.
Decision: We see no reason to substitute our discretion for that of the Supreme Court. In addition to taking into account the parties’ agreement, the court expressly considered such other relevant factors as the parties’ preseparation standard of living, the plaintiff’s reasonable needs, and the financial ability of the defendant to make the payments in Any perceived inequity in the pendente lite award can best be remedied by a speedy trial.
Klein: 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.
Valente: A pre nuptial agreement prevents the wife from receiving interim maintenance unless the agreement is unconscionable or there is a likelihood that the wife will become a public charge should the agreement be enforced.
9) Voluntary Payments
Coons: Where the husband continues to pay for the wife’s reasonable needs and they both reside in the marital residence, pendente lite support was denied.
Decision: The parties still reside together at the marital home and plaintiff has failed to establish that temporary support or maintenance is necessary inasmuch as defendant continues to pay for her reasonable needs. Nor has there been a showing that exclusive possession of the marital home is “necessary to protect the safety of persons and property.
Wexler: Where the husband had voluntarily paid $80,000 a year for maintenance and child support, the court awarded interim maintenance of 68,000, and interim child support of 22,000 based on their reasonable needs.
Decision: After considering the factors set forth in Domestic Relations Law 236 (B) (6) and (7), the court set temporary maintenance in the amount of $1,300 per week and child support of $425 per week. We find these amounts to be reasonable under the circumstances. We also find that the award of $20,000 in counsel fees was a proper exercise of the court’s discretion in light of the litigation history of this case and the parties’ disparate financial situations. That the plaintiff has money of her own is not an automatic bar to an award of counsel fees; it is only one factor to be taken into consideration with all others, including the defendant’s financial position.
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