Pendente lite refers to temporary orders issued by a court during a divorce to address pressing issues such as financial support, custody arrangements, and other immediate concerns while the case is still in progress. These orders help maintain stability for both spouses and children, offering necessary support during the uncertain period before the final settlement is reached. Pendente lite relief is particularly important for those who need financial assistance or temporary arrangements while the divorce proceedings continue.
For individuals preparing for a divorce in New York, having the guidance of an experienced lawyer is crucial in obtaining pendente lite relief. NYC divorce attorney Juan Luciano can help you with the legal process and advocate for your needs. Contact Juan Luciano Divorce Lawyer today at (212) 537-5859 to schedule a consultation and get the legal support you need during this challenging time.
What is Pendente Lite in New York?
When it comes to divorce cases, pendente lite orders serve to address financial support, custody, and other urgent matters while the case is ongoing. These orders are crucial in maintaining stability for both spouses and any children involved until a final resolution is reached. Maintenance may be requested as ancillary relief during the divorce, and at the conclusion of the case, all issues regarding maintenance—whether it is granted, the amount, and the duration—will be decided by the court, unless the parties reach an agreement.
Since divorces can take months, and even years in some cases, to be finalized, one spouse may require financial support well before the case is resolved. Pendente lite awards provide this temporary financial relief, allowing one party to meet living expenses while the divorce proceeds. Following revisions to New York’s pre-trial maintenance laws, pendente lite maintenance is now referred to as temporary maintenance. The amount of temporary maintenance is determined by a combination of formulas outlined in Domestic Relations Law 236 B(5-a), ensuring that financial support is fair and adequate based on both parties’ income.
Types of Pendente Lite Relief Available
Pendente lite orders protect the financial stability and safety of both spouses and children while a divorce case progresses. Below are the main purposes of pendente lite orders in New York:
Temporary Financial Support During Divorce
One of the core purposes of pendente lite orders is to provide temporary financial support to the spouse who may not have access to income or assets during the divorce process. If one spouse earns significantly more or controls the marital finances, the court can step in to ensure that the other spouse receives temporary spousal support, also known as maintenance. This allows the financially dependent spouse to cover basic living expenses, such as housing, utilities, and groceries, while the divorce is ongoing.
Child Support and Custody Arrangements
Pendente lite orders often include provisions for child support and temporary custody arrangements. The goal is to ensure that the children’s needs are prioritized, particularly in terms of financial stability, education, and healthcare. The court will assess each parent’s financial situation and determine the amount of child support required to maintain the child’s standard of living. Temporary custody arrangements are also addressed, granting one or both parents custodial rights and establishing visitation schedules to promote stability for the children during this period.
Payment of Legal Fees and Expenses
Divorce proceedings can be expensive, and pendente lite orders may require one spouse to contribute to the other’s legal fees and costs. This guarantees that both parties can afford legal representation, leveling the playing field and preventing one spouse from being unfairly disadvantaged due to a lack of financial resources. In some cases, pendente lite orders can also include provisions for payment of expert fees, such as appraisers or financial analysts, when necessary to assess marital assets or child custody issues.
Exclusive Use and Occupancy of the Marital Home
Another common provision of pendente lite orders is granting one spouse exclusive use of the marital home during the divorce. This prevents conflicts over living arrangements and can help protect one spouse from potential abuse or harassment. Exclusive use orders allow one party to remain in the home with the children while the divorce proceeds, providing stability in their living environment until a final decision is made. Additionally, the court may impose restrictions on transferring or selling marital property during the divorce to prevent financial harm.
Pendente lite orders provide essential protections and stability during divorce proceedings, safeguarding both spouses and their children while the case is ongoing. By addressing financial support, child custody, and living arrangements early in the process, these temporary orders help ensure fairness and prevent undue hardship until a final resolution is reached.
| Types of Pendente Lite Relief | Description |
|---|---|
| Temporary Financial Support | Provides temporary spousal support (maintenance) to the financially dependent spouse to cover basic living expenses during the divorce process. |
| Child Support and Custody Arrangements | Ensures that children’s financial needs are met and establishes temporary custody and visitation schedules to maintain stability during the divorce. |
| Payment of Legal Fees and Expenses | Requires one spouse to contribute to the other’s legal fees and expert costs, ensuring fair legal representation for both parties. |
| Exclusive Use and Occupancy of the Marital Home | Grants one spouse exclusive use of the marital home during the divorce, preventing conflicts and providing a stable living environment for the children. |
How to Request Pendente Lite Relief in New York
In New York, requesting pendente lite relief is an important process for spouses who require temporary financial support or other measures during a divorce proceeding. To obtain pendente lite relief, specific steps must be followed, and certain documents must be submitted to the court. These steps are designed to make sure that the temporary support is fair and adequate to meet the needs of the requesting party while the divorce case proceeds.
Filing a Motion for Temporary Maintenance
Temporary maintenance, also known as pendente lite maintenance, can be requested by filing a motion pursuant to DRL 236 B(5-a). The 2015 amendments to DRL 236 B(5-a) made significant changes to the way temporary maintenance is calculated and requested in New York. Under the revised law, any spouse can make an application for temporary maintenance through a motion, either by an order to show cause or by a notice of motion.
When filing a motion for temporary maintenance, the following key steps and documents are required:
- Signed Affidavit: The moving party must submit a sworn affidavit that outlines their financial situation and explains the need for temporary maintenance.
- Statement of Net Worth: A detailed, signed statement of net worth must be included. This document lists the party’s income, assets, expenses, and debts, providing a full financial picture for the court.
- Supporting Financial Documents: The party must attach relevant financial documents, such as tax returns, W-2 forms, 1099 forms, and other financial records, to support their request for maintenance.
- Motion Format: The motion can be filed either by notice of motion or order to show cause, depending on the urgency and specifics of the case.
- Compliance with 22 NYCRR 212.16(k): The required paperwork must comply with the court rules, which outline the necessary documents, such as the statement of net worth and any other exhibits relevant to the motion.
The motion is typically decided based on these documents without the need for oral testimony, making the thoroughness of the submitted paperwork essential.
Additional Requirements for Pendente Lite Relief
In New York, pendente lite relief cannot be granted unless certain prerequisites are met. Firstly, there must be an active divorce or annulment action underway. Pendente lite relief is only available within the context of such matrimonial cases. Additionally, a Request for Judicial Intervention (RJI) must be on file before the court can consider the motion. This helps ensure that the case is officially before the court and a judge is assigned.
The pendente lite motion can be served at the same time as the summons for divorce if service hasn’t been completed yet, allowing for an expedited process in urgent situations. Although it is preferable for the pendente lite motion to be brought before the preliminary conference, this is not a strict requirement. If the motion includes a request for counsel fees, the attorney representing the moving party must provide a detailed affirmation specifying the fees incurred or anticipated, along with the terms of payment.
Factors Considered in Determining Pendente Lite Maintenance
When determining the appropriate amount of pendente lite maintenance in New York, the court evaluates a range of factors to establish that the temporary financial arrangement is just and fair. There are specific factors that the court must consider to determine whether the presumptive amount of maintenance is either unjust or inappropriate. These factors help the court address the unique financial circumstances of each marriage.
Some of the key factors considered by the court include:
- Length of the Marriage: Longer marriages may justify higher maintenance awards due to prolonged financial dependence.
- Income Disparity Between Spouses: A substantial difference in income is a major consideration, with courts typically favoring the spouse with lower income to maintain their standard of living.
- Standard of Living During the Marriage: The court aims to help ensure that the lower-earning spouse can maintain a similar lifestyle to what was experienced during the marriage.
- Health and Ages of the Spouses: Health conditions and age may impact a spouse’s ability to earn income or manage living expenses.
- Earning Capacity of Each Spouse: This includes considerations of whether additional training or education is needed to improve future earning potential.
- Disposition or Waste of Assets: If either spouse has improperly disposed of or wasted marital assets, the court will factor that into the maintenance award.
- Impact on Earning Ability: The court may consider any behavior by one spouse that has damaged the other spouse’s ability to earn a living.
- Difficulty in Finding Employment: Challenges in obtaining employment, particularly for spouses who have been out of the workforce for an extended period, are taken into account.
- Tax Considerations: The court evaluates the tax implications of the maintenance award on both parties.
- Expenses Related to Children: Additional costs related to the care and support of children may increase the maintenance award.
- Distribution of Marital Property: The court assesses what marital property will be distributed to each spouse and how that affects the need for maintenance.
- Lost Educational or Career Opportunities: If one spouse gave up educational or career opportunities to support the other, this will be considered.
- Contributions to the Career of the Other Spouse: Contributions, such as supporting a spouse’s career or business success, can influence the maintenance award.
- Any Other Equitable Factor: The court is allowed to consider any other relevant factors it deems fair and equitable under the circumstances.
If the court decides that the presumptive amount of temporary maintenance is unjust or inappropriate, it must provide a detailed explanation, including the specific factors that led to the adjustment.
Restrictions and Temporary Orders in Pendente Lite Relief
Once a divorce case is filed in New York and the other spouse is served with divorce papers, automatic restrictions on the handling of marital property come into effect. These restrictions, a critical aspect of pendente lite relief, are designed to preserve the status quo and prevent either party from making decisions that could unfairly impact the division of marital assets. During the divorce process, both spouses are prohibited from taking certain actions that could deplete or reduce the value of marital property, ensuring that all assets are available for equitable distribution when the divorce is finalized.
For instance, neither spouse can sell, transfer, hide, or remove marital property without the permission of the other party or approval from the court. This includes real estate, personal property, bank accounts, investments, vehicles, and retirement accounts. Although ordinary expenses for daily living and attorney’s fees are allowed, actions such as borrowing against assets or disposing of them are strictly regulated. These protections are vital to establish that marital property is not wrongfully diminished before it can be divided in the divorce.
Any violation of these temporary orders or restrictions can result in court-imposed penalties, including the payment of attorney’s fees or other sanctions.
Modifications of Pendente Lite Awards
In New York, once a pendente lite award has been granted, it is challenging to seek modifications unless there are significant, unexpected changes in circumstances. Appellate courts are generally reluctant to alter pendente lite awards, preferring that any perceived inequities be addressed through a prompt trial rather than through modification requests. This judicial preference emphasizes the importance of presenting a strong, thorough case when initially seeking pendente lite relief.
Because modifications are rarely granted, and only in cases of urgent or exigent circumstances, it is crucial to provide comprehensive and accurate financial information during the initial pendente lite motion. Courts tend to uphold their interim decisions unless a substantial change in circumstances can be demonstrated. For example, a dramatic shift in financial status, such as job loss or a significant medical emergency, might warrant a modification, but even in such cases, the court’s threshold for change is high.
Given the difficulty of modifying pendente lite awards, individuals should approach the initial filing process with care. It is essential to gather and present all relevant financial details and arguments effectively from the outset.
Get Experienced Legal Help with Pendente Lite Relief from Juan Luciano Divorce Lawyer
Securing pendente lite relief can be a crucial step in protecting your financial stability and ensuring the well-being of your family during a divorce. Whether you need temporary maintenance, child support, or help with custody arrangements, having a skilled attorney on your side can make all the difference. At Juan Luciano Divorce Lawyer, our team has extensive experience handling divorce cases in New York and can guide you through every stage of the process.
If you are facing the challenges of divorce and need assistance with pendente lite relief, don’t hesitate to reach out. Contact Juan Luciano Divorce Lawyer today at (212) 537-5859 to schedule a consultation and take the first step towards safeguarding your rights during this difficult time.
