Temporary / Pendente Lite Maintenance

For clients going through the complexities involved within a divorce, there can be many important considerations to think about. Fortunately, Darren M. Shapiro, as an experienced litigator, family law, matrimonial attorney, certified mediator and trained collaborative law attorney is equipped to help clients navigate the difficulties of divorce. Those experiencing a divorce can sometimes apply for temporary maintenance payments, which are payments to be made by one spouse to the other while the case is pending.

According to the older law in New York for “pendente lite” or temporary maintenance, prior to the revisions which took place in 2010, this form of maintenance was intended as an option to help “tide over” the spouse with the least income, otherwise referred to as the “non-monied” spouse. As the divorce procedure, whether it becomes settled or tried, can take some time, temporary maintenance was intended to help the spouse with less income get by until a final decision could be made. Under the old law, there was no particular formula given for the calculation of temporary maintenance – instead, it was simply based on subjective criteria to be outlined in the statute.

However, the 2010 law that is now in effect contains guidelines that help to manage the process, much like the outlines that are in place for child support payments – although the two amounts and formulas do differ significantly. These guidelines offer support on what the correct amount of temporary maintenance should be for a specific individual. The amount of temporary maintenance, if there is any, that is ordered or agreed upon can be determined with the assistance of lawyers and mediators like Darren M. Shapiro. However, despite the input of legal professionals, Judges are regularly called upon to decide the final amount, and this is where the statute is deeply considered. It is worth noting, however, that the temporary maintenance amount is typically not what will be ordered in the final stages of a divorce. Rather, that maintenance, if any is awarded, will be durational in nature, and is not dictated with a specific formula to guide its determination.

Mr. Shapiro is experienced and effective in dealing with cases of temporary maintenance, a law which can be found in the Domestic Relations Law Section 236(B)(5-a). The statute takes into accounts the gross income of both parties involved in the divorce, as it was reported during their most recent federal tax returns, and after the deduction of any applicable local taxes (New York City/Yonkers taxes) and FICA taxes. The smaller of the following two calculations will typically provide a guideline for how much temporary maintenance should be awarded. A cap of $543,000, at the time this webpage was written, of the payor’s income will be used in calculating the amount. The first calculation is made by taking the difference between 20% of the non-monied spouse and thirty percent of the income of the spouse with the higher income. The second calculation on the other hand, involves looking at forty percent of the total combined income of both spouses, minus the income of the non-monied spouse. The lower number that is given from the result of these two separate calculations is the guideline for the temporary maintenance amount.

If the spouse with the highest income in the divorce earns more than $543,000, the court will decide whether there should be an additional guideline for temporary maintenance, based on nineteen items that are further stated in the statute. The court will need to state which factors are being considered, as well as the reasoning that is being used to push the calculation of this additional amount. Finally, the court will have to consider seventeen reasons to determine whether the temporary maintenance is either unjust or inappropriate.

The factors to be considered include: how long the marriage was, the substantial difference between spouse income, the standard of living in the marriage, health and ages of each spouse. The court will also consider the earning capacity of each spouse, including the need for training or education, disposing of assets, waste of property, whether the parties lived together before the case, and activities that might have damaged the other’s ability to earn. Other things to think about include difficulties in finding employment, tax issues, added expenses for children, marital property that may be distributed, lost education or career opportunities, contributions to the career of the other parent, and any other factor determined to be equitable. If the court does then decide to change the amount of the award from the previously given presumptive amount, justification and the reasons considered must be stated.

According to details given by the law, if the court cannot be given enough information to accurately determine income, the award for temporary maintenance will have to be calculated based on the significant or greater needs of the spouse with the lowest income, or the standard of living that existed between the couple before the divorce took place. Temporary maintenance in litigated cases is usually a single aspect that is requested as a factor in a pendente lite motion. Other things that might be requested within the same motion include child support, custody awards, orders of exclusive occupancy and use of residences, orders of protection and more. Mr. Darren Shapiro has knowledge and experience with all of these varying facets of family law. Bottom of Form

Regardless of the circumstances of a divorce case, Darren M. Shapiro works alongside his clients to ensure that they achieve the results that pertain to their best interests. He consistently strives to keep his clients engaged and informed throughout all stages of their legal experience, so that they are prepared for each stage, and complete their divorce ready to start fresh in their new lives.

For more information about temporary maintenance, pendente lite motions, or any other area of family law, please reach out to us. Couples who are interested in seeking out Mr. Shapiro’s professional assistance should call and schedule their free consultation as soon as possible. Simply let us know how we can help you – it would be our pleasure to speak with you regarding your needs.