CARRYING COSTS AND TEMPORARY MAINTENACE IN A PENDENTE LITE APPLICATION

Upon commencement of an action for divorce, when the “non-monied” spouse is in need of support he/she may be forced to file a pendente lite motion with the Court. Said motion normally seeks temporary monetary 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 main items which are sought.

Domestic Relations Law §236(B)(5-a) sets forth the formulas in which the Court uses to determine the presumptive temporary maintenance award. When determining what the presumptive award should be the Court will look among other things the lifestyle of the parties to determine if the statutory cap will be the deciding factor, or if the Court wishes to deviate from the statutory cap when issuing said award. If the court deviates from the statutory cap, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover.

One would think that if the Court, did not want to award both temporary maintenance and have the “monied” spouse pay for the carrying costs of the marital home, then the Court would award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. However, sometimes this is not the case and 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 its 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 including maintaining the status quo.