Updated: Apr 5, 2022
A pendente lite motion is a request for early court intervention used to request interim relief while your divorce action proceeds. Either spouse may request temporary maintenance by making a motion for temporary support pursuant to DRL 236 B(5-a). The temporary maintenance provisions of DRL 236 B(5-a) shall apply if either party makes a motion for temporary maintenance, unless there is an agreement to the contrary. Temporary maintenance guidelines are required unless the Court finds they are unjust or inappropriate.
(1) Factors used when adjusting temporary maintenance awards from a guideline amount.
The guidelines for temporary maintenance will be used, unless the court makes a finding they are unjust or inappropriate. If so, the court must use one or more of the following factors in its reason for adjusting the guideline amount.
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
(m) any other factor which the court shall expressly find to be just and proper.
(2) Deviation from guidelines requirements
If the court adjusts the temporary maintenance from the guidelines upon finding the guideline award is unjust or inappropriate, the court is required to set forth its reasons in either a written decision or on the record. This requirement cannot be waived.