Carrying Costs and Temporary Maintenance in a Pendente Lite Application

Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending the litigation. Typically one asks for temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers. Recently, in Woodford v. Woodford, a Second Department decision, the Court attempts to shed some light on temporary maintenance.

In Woodford, the wife moved pendente lite, for temporary maintenance, 100% of the carrying costs of the marital estate and for her attorney’s fees. The Supreme Court ruled that the husband was to pay 100% of the carrying costs, temporary maintenance and to pay $10,000.00 as and for attorney’s fees, with leave to apply for more money should the need arise. As you may know, carrying costs are essentially the costs associated with maintaining and running the household. It includes the mortgage or rent, utilities, cable, internet, phone, the other costs associated with the home. Husband appeals to the Second Department arguing that temporary maintenance should include the carrying costs, thus he should not have to pay both carrying costs and additional monies for maintenance.

Domestic Relations Law §236(B)(5-a) sets for formulas in which the Court is to use to determine the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover. The Court held in this case, that it is reasonable and logical to think that the temporary maintenance statute was intended to cover all of the wife’s basic living expenses. Therefore the Court vacated that part of the ruling which ordered the husband to pay for both the carrying costs and temporary maintenance and directed the Supreme Court to reconsider the wife’s motion.

This ruling seems to say that carrying costs are part of temporary maintenance. One would think then that the Court, if it wants to award both temporary maintenance and have the “monied” spouse pay for the carrying costs, the Court would then award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. Ultimately, since the statute is vague and ambiguous as to this point, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.

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How Much Maintenance Will A Court Award?


To begin, maintenance may be defined as payments made from one spouse to another at fixed intervals in accordance with an agreement between the parties or as a result of an award by the Court. In determining whether maintenance is appropriate and the amount and length of such maintenance, the Court will rely on factors set forth in the Domestic Relations Law § 236, Part B. When considering the twelve factors set forth in §236, the Court will analyze all the available information having regard for the standard of living of the parties established during the marriage, whether recipient lacks sufficient property and income to provide for his or her reasonable needs and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.

The factors the Court must consider are: (1) the income and property of the respective parties including martial property distributed as part of equitable distribution; (2) the duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary thereof; (5) reduced or lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to by just and proper.

Essentially, maintenance is awarded to a party to allow them time to get on their feet. You are not entitled to, nor are you obligated to pay, maintenance to keep the awarding party in a life style on par with the pre divorce standard of living. However, maintenance will be awarded to a party to allow them to “get on their feet.” So for example, if one spouse is a doctor making $300,000.00 a year and the other spouse was not working at all, it is clear that the Court should award maintenance. What if, in contemplation of the divorce, the unemployed spouse gets a job? What if that job pays $70,000.00 a year? Maintenance will in all likelihood still be awarded. First, in this example, the new job just began. The Court will recognize the fact that the nonworking spouse, who just obtained employment, is probably not in the position to rent another place to live. The Court will consider the fact that instead of working and saving money, the spouse was financially dependent on the doctor. Therefore, things like paying for the first month, last month and security deposit will be challenging at best. How about a car to get to this new place of employment? Second, the Court will consider, not only the pre divorce standard of living, but will also consider the disparity of incomes between the two parties in fashioning an award. Because the spouse has obtained employment, the duration of the award may not be as long, nor as much, however with a $230,000.00 gap between the two parties, a maintenance award in all likelihood be awarded.

LEARNING POINT: Maintenance is a complicated matter. The “reasonable needs” of a party is hard to define. The disparity in incomes and other factors will be considered by the Courts in fashioning a just award. The one to be most aware of is the twelfth factor, “any other factor which the court shall expressly find to by just and proper.” This is the catch all which allows Courts the discretion to make a decision based on anything they want! Contact us immediately to allow us to give you the best legal advice possible.

How Much Maintenance Will A Court Award?

New York Child Support Guidelines


In 1989, New York passed the Child Support Standards Act (CSSA). The main purpose of this legislation was to establish minimum and meaningful standards of obligations on the premise that both parents share the responsibilities for child support. The CSSA brings a sense of uniformity and predictability with child support. Child support can be generally defined as the amount of money to be paid for the care, maintenance and education of an un-emancipated child.

NY defines basic child support as the sum derived by the application of the child support guidelines formula, as increased by obligations for health, child care and education expenses. So what does all that mean? Basic child support is the regular periodic payment of support made by the noncustodial parent to the custodial parent, which payment is inclusive of the noncustodial parent’s obligations for all the child’s needs except for health care, child care, and educational expenses. The obligations for health care, child care, and educational expenses are commonly referred to as “add-ons.”

The question clients often ask is how much can I expect to pay or receive in child support? The procedure required by the guidelines which the Court will abide is as follows: First the Court will combine both parents income. A base line is used which has been recently changed. The base line was $80,000.00 however has been changed to $136,000.00. In other words, the incomes will be combined but the Court will use $136,000.00 as a baseline in its calculations in the event the combination of salaries is greater than $136,000.00 (I will discuss what happens if the combined salary exceeds $136,000.00 later).

Once the salaries are combined, that number is multiplied by the statutory percentage which is a function of how many children there are in the marriage. (The percentages are: 17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children.) Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis. Under the guideline, the only payment that is made is made by the noncustodial parent.

In the event that the combined salaries are greater than $136,000.00, the Court will use the same calculation but the Court will then decide whether an additional award based on the increased income available. All calculations, regardless of income will be based on the parties’ most recent tax return. The starting point is the gross income minus FICA. If the paying spouse is also required to pay maintenance, then maintenance is subtracted from the gross salary.

Under the CSSA, the Court is to base its calculations on the parties’ tax returns and not on its estimate or approximation as to what the parties’ incomes are. The most recent tax return is the starting point of the child support calculations. If the parties filed joint tax returns, each party must prepare a form, sworn to under the penalty of perjury, disclosing his or her gross individual income. The Court is authorized to look to the amount that a party should have been or should be reported. Distributions from pension and profit sharing plans are reportable as income on tax returns, and thus will be treated as income for CSSA purposes. Maintenance is to be deducted from the noncustodial parent’s income.

What happens if the CSSA brings you below the poverty level? Where that happens, the basic child support obligation is $25 per month or the difference between the non-custodial parents’ income and the federal self-support reserve, whichever is greater. If the non-custodial income would be reduced below the self-support reserve, but not below the poverty level, then the basic child support obligation is to be $50.00 a month or the difference between the non-custodial parents’ income and the self-support reserve, whichever is greater.

LEARNING POINT: While the guidelines are a helpful tool in figuring out child support, this is only the beginning. Add-ons, such as health care, college, child care and the like must also be factored in. Maintenance, if not permanent will change the amount paid in child support. If you are ordered to pay child support through twenty-one years of age, you may get credit for room and board fees you pay to a college which will lower your child support obligations. Seek out an attorney to assist you in determining the appropriate amount of child support.

What Is Maintenance and How Do I Get It?


divorce alimony temporary maintenanceA common question clients ask is how much alimony am I going to have to pay or can I expect to receive. The answer to that question is easy: none! Most people are familiar with the concept of alimony. Alimony was originally developed as a means of providing support for women after the termination of the marriage when, generally speaking, men controlled family property and opportunities in the work place for women were hard to come by. The amount of alimony awarded was supposed to be enough maintain the standard of living during the marriage and the award was usually permanent.

With the passage of the Equitable Distribution Law in 1980, alimony was eliminated. Maintenance replaced alimony and is now a gender neutral concept. Marriage is now viewed as an economic partnership, which in the event of a divorce, will not favor one spouse over the other. Maintenance can be described as payments to be made at fixed intervals from one spouse to the other as provided by a valid agreement or ordered by the Court. Maintenance is designed to rehabilitate the economically disadvantaged spouse with an eye towards economic independence.

When determining the duration and amount of maintenance, the Court will consider the following twelve factors: (1) the income and property of the respective parties including marital property distributed; (2) the duration of the marriage,the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and if applicable, the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the Court shall expressly find to be just and proper

Every case is fact specific. While no one factor may hold significant weight over the others, clearly the duration of the marriage and the ability of both parties to support themselves will be significant. If you were married for five years and both parties are doctors, maintenance will probably not be awarded. If you were married 25 years, you stayed home while your spouse was working, maintenance will probably be awarded. Duration of maintenance is up to the Court. Depending on the facts of your situation maintenance can last a year or for the rest of your life.

LEARNING POINT: Maintenance is a complicated matter with different variables which you and the Court must consider. If contemplating a divorce, call us for a free consultation and discussion regarding maintenance awards and other serious matters.

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Pendente Lite Motion


pendente lite motion divorce lawA common question that arises when people come in for their initial consultation is: how they are going to survive the process!? Typically, a spouse walks in and has decided to get divorced.  Their first concern is that they have not been working and are one hundred percent reliant on their spouse.  As I’ve written in past blogs, the law is gender neutral when it comes to divorce.  There are only two types of people in a divorce, the “monied” spouse and the “non monied” spouse.  As you can guess, it’s the non monied spouse that walks in with the concern that they will not be able to survive if they file for divorce.  That is when we explain the Pendente Lite motion.  Pendente Lite is Latin for “pending the litigation”.  It is a motion that you can make where you, as the non monied spouse, requests that the monied spouse pay for the following: (1) temporary maintenance; (2) temporary child support; (3) your counsel fees; and (4) exclusive use of the marital property.  There are many other things that you can ask in the Pendente Lite motion.  This blog will focus on the request for the exclusive use of the marital property.

Courts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital premises to one of the parties. (Domestic Relations Law §234).  Generally, exclusive occupancy of the marital residence should not be awarded to a party prior to trial without a hearing unless there is sufficient evidence to show an award is necessary to protect the safety of persons or property.  If a spouse has voluntarily established an alternative residence, the existence of an acrimonious relationship between the parties and the potential turmoil which might result from a spouses return may lead to the Court to grant a petition for exclusive use of the marital residence.  The question becomes how one defines the key terms of “necessary and safety?”  The Courts have not given much guidance however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting judicial intervention.

divorce attorney pendent lite motionWhat type of evidence would be persuasive to Court?  The following is a non-exhaustive list which would carry considerable weight with the Court: (1) a police report showing complaints by one spouse about the other; (2) the existence of an order of protection/non harass order; (3) medical evidence of abuse; (4) corroborative third-party affidavits of harassment.  Typically, a hearing is necessary when there exists contradictory affidavits.  When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse.  When addressing safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing of the moving spouse.  Thus, what typically happens is that one spouse moves for exclusive possession of the marital residence and the other spouse argues that this remedy is unnecessary because he or she is not doing whatever the moving spouse is alleging.

Start keeping a journal. When going through a divorce, you will want to be able to communicate to your attorney and eventually the Courts of all the incidents you believe substantiate your claim to the marital residence pending the divorce.  If you have been abused, file a police report.  Seek medical treatment.  If the abuse is mental, file for a Non Harass Order from the Family Court.  The goal is to amass evidence which can be sued in the motion to help substantiate your need for judicial intervention.

If a Court does grant exclusive possession of the marital residence, a common argument made by the spouse who now must move out of the martial residence is that he or she may not be able to afford two households.  The Courts uniformly hold the same way on this response: the appropriate remedy to resolve an apparent inequity with the Court’s pendente lite award is a speedy trial.

LEARNING POINT: Once you decided to file for divorce, immediately seek the guidance of an attorney.   Your attorney will be able to advise whether you have a legitimate claim to the exclusive possession of the marital residence and whether the pendite lite motion is something you should file.

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Temporary Maintenance My Only Be Here Temporarily


temporary maintenance divorce attorney long islandPursuant to Domestic Relations Law §236B (5 a-c), for all divorce actions commenced after October 12, 2011, courts are required to apply a statutory mathematical formula in determining temporary maintenance.  Previous this change, courts created a pendite lite award by considering the reasonable needs of the moving spouse and the financial ability of the other spouse to tide over the more needy party pending the outcome of the litigation.  The award would typically cover maintenance, child support, and counsel fees.  With the change in the law, courts will apply a statutory formula to the parties’ income and calculate a presumptive award.  This award would be ordered unless that award would be considered unjust or inappropriate.

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Temporary maintenance, child support and legal fees can be a complex area to navigate

How exactly would a court determine if this presumptive award is inappropriate?  The statute lays out a list of seventeen factors a court can consider to deviate from the presumptive award.  The court will deviate from the award after considering: (1) the standard of living established during the marriage; (2) the age and health of the parties; (3) the earning capacity of the parties; (4) the need of one party to incur education or training expenses; (5) the need of one party to incur education or training expenses; (6) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (7) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (8) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment; (9) the availability and cost of medical insurance for the parties; (10) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that inhibit a party’s earning capacity or ability to obtain meaningful employment; (11) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (12) the need to pay for exceptional additional expenses for the children, including school, day care and medical treatment; (13) the tax consequences to each party; (14) marital property subject to distribution; (15) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (16) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker, and to the career potential of the other party; and (17) any other factor that the court expressly finds to be just and proper.

If the court concludes that the presumptive award is unjust or inappropriate, the statute requires that the court must put in an order exactly how it came to that conclusion, which factors it considered and the reasons the court adjusted the presumptive awards.

Though just over a year old, matrimonial attorneys and courts have significant challenges to this statute.  By using an equation to determine awards, all discretion has been removed from the court, unless it can justify a deviation within the seventeen factors provided in the statute.  The problem with these factors is that many of them, if not all, will not be fully known until after trial!  Additionally, the legislation does not consider payment of household carrying charges and expenses by the payor spouse nor does it provide for consideration of domestic violence as a deviation factor if the harmed spouse’s ability to work is not impaired.  As reported in the Nassau Lawyer, The Nassau County Bar Association recently forwarded a resolution to the state legislative leaders and to the New York State Law Revision Commission which is reviewing the interim and permanent spousal support legislation and is expected to release its final report this year.

LEARNING POINT: Temporary maintenance, child support and legal fees can be a complex area to navigate.  When seeking a divorce contact an attorney to protect your rights and assets while the legislature decides whether or not to repeal the temporary award statutes.

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