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Divorce Law

New York’s Temporary Maintenance Formula

In 2010, the New York Legislature passed new legislation requiring divorce judges throughout the state to utilize a presumptive temporary maintenance formula in considering applications for pendente lite maintenance. The phrase “pendente lite” is a latin phrase that, literally translated, means “pending the lawsuit”. Pendente lite motions are typically brought at the beginning of divorce lawsuit for the purpose of obtaining temporary child support, spousal support exclusive occupancy of a marital residence and other temporary relief while the case is being adjudicated. Because New York divorce cases often proceed at a frustratingly slow pace, pendente lite awards can remain in place for years – until a final judgment of divorce is entered in the case. If you are financially dependent on your spouse or earn considerably less than your spouse, your divorce lawyer may recommend that you seriously consider filing a motion for pendente lite maintenance and legal fees at the beginning of your case. In submitting your application for temporary alimony, your attorney will probably guide you in filling out a form known as a Temporary Maintenance Guidelines Worksheet, which New York divorce judges often use to decide the amount and duration of temporary alimony. Although judges are permitted to deviate from the worksheet under certain circumstances, the Temporary Maintenance Guidelines Worksheet is often the single-most important factor in determining the amount and duration of temporary support.

Prior to New York’s adoption of the temporary maintenance formula, divorce litigants and lawyers were left to simply guess at whether (and to what extent) a divorce judge would award temporary support for a less-monied spouse. During the past five years, as judges and lawyers have grown more accustomed to the new formula, temporary maintenance awards have become far more predictable (and substantially more generous to litigants who have lower incomes than their spouses). The decision by the Appellate Division in Khaira v. Khaira, issued on February 7, 2012, discusses, in explicit terms, that the new formula is intended by the legislature to help less-monied spouses:

KHAIRA v. KHAIRA

February 7, 2012

The new Domestic Relations Law § 236(B)(5–a) reflects a substantial change in the Legislature's approach to temporary maintenance. The previous spousal maintenance provision gave the court great leeway, directing only in general terms that it order maintenance “in such amount as justice requires,” considering the parties' standard of living during the marriage, the reasonable needs of the non-monied spouse and the monied spouse's ability to pay, and with regard to a list of factors such as the parties' respective earning capacities (former Domestic Relations Law § 236[B][6] ). Courts applying that provision observed that pendente lite maintenance was awarded to “tide over the more needy party, not to determine the correct ultimate distribution and to ensure that a needy spouse is provided with funds for his or her support and reasonable needs” (see e.g. Iannone v. Iannone, 31 AD3d 713, 714 [2006] [internal quotation marks and citations omitted]).

In summary, the temporary maintenance formula represents a new and more enlightened approach to temporary spousal support in New York. The new provision, rather than aiming merely to “tide over” the non-monied spouse, creates a substantial presumptive entitlement.

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