Pendente Lite Motions and Temporary Orders in Divorce

Pendente Lite Relief in New York Divorce Cases

Contested divorce litigation in New York can be lengthy, often taking months or even years to a conclusion. During litigation, problems often arise that regarding living arrangements, financial support, and child custody. When such a need arises, Pendente Lite motions may be required in order to properly obtain the appropriate orders.

What is Pendente Lite Relief in a New York Divorce?

The term “Pendente Lite” is Latin for “pending the litigation.” Pendente Lite motions request temporary court orders that will remain in effect until the divorce is resolved (by way of trial or settlement) or until the court otherwise modifies the orders. These orders are generally intended to maintain stability and protect the rights and interests of the parties and their children during the pendency of the divorce litigation.

It is important to understand that Pendente Lite relief is not necessarily intended to set precedents for the final judgment or act as a “sneak preview” as to how the court intends to decide the case, but, in practice, temporary arrangements often influence final determinations, making these early motions strategically significant in many cases.

Types of Pendente Lite Relief in New York

1. Temporary Maintenance (Spousal Support)

Temporary maintenance provides financial support to the less-monied spouse during the pendency of the divorce. New York now uses a formulaic approach and statutory guidelines for calculating temporary maintenance based on the income of both parties to determine the appropriate amount.

The court considers several factors when determining temporary maintenance, including:

• The income and property of each spouse
• The length of the marriage
• The age and health of both parties
• Present and future earning capacity of both spouses
• The need for one party to incur education or training expenses
• The existence and duration of a pre-marital joint household
• Acts that inhibit a party’s earning capacity or ability to obtain meaningful employment

In high income divorce cases, where combined income exceeds the statutory cap, the court has discretion to deviate from the guidelines after considering additional factors. Temporary maintenance can be for a fixed period of time but must otherwise terminate upon the issuance of the judgment of divorce (when a post-judgment support award may be entered).

2. Temporary Child Support

When the parties are parents to children under the age of 21, the court may issue orders for temporary child support. Like temporary maintenance, New York follows specific statutory guidelines for calculating child support, know as the Child Support Standards Act (CSSA).

The basic calculation involves:

1. Determining each parent’s income.
2. Combining their incomes and multiplying by the appropriate percentage based on the number of children:
   • 17% for one child
   • 25% for two children
   • 29% for three children
   • 31% for four children
   • No less than 35% for five or more children
3. Prorating the resulting amount between the parents according to their respective incomes.

In addition to basic child support, the court may order contributions to:

• Child care expenses
• Health insurance premiums and unreimbursed medical expenses
• Educational expenses
• Extracurricular activities

Temporary child support orders remain in effect until the Judgment of Divorce or further court order.

3. Temporary Child Custody and Parenting Time (Visitation)

Establishing temporary custody and parenting time arrangements is often one of the most emotionally charged aspects of divorce proceedings. Pendente Lite orders can address:

• Legal custody (decision-making authority regarding the child’s education, healthcare, and religious upbringing)
• Physical custody (where the child will primarily reside)
• Parenting time schedules (specific days, times, holidays, and vacations for each parent)
• Transportation arrangements for exchanges
• Communication between parents and with the children, including mandates for use of software such as OurFamilyWizard

The paramount standard in all custody determinations is “the best interests of the child.” When making temporary custody decisions, courts consider factors such as:

• Any history of domestic violence or substance abuse
• Parental alienation
• The existing caregiving arrangements and attachment relationships
• Each parent’s ability to provide a stable home environment
• Each parent’s physical and mental health
• The child’s relationships with siblings and extended family
• The parents’ ability to cooperate and communicate
• The child’s preferences (depending on age and maturity)

Courts generally favor maintaining the status quo during the pendency of the action if the existing arrangement appears to be working reasonably well for the children.

4. Exclusive Use and Occupancy of the Marital Residence

Another common form of Pendente Lite relief is exclusive use and occupancy of the marital residence which refers to the right of one spouse to have exclusively occupy the home and exclude the other.

To obtain exclusive occupancy, the moving party must demonstrate either that:

• Exclusive use and occupancy is is necessary to protect the safety of persons or property, or
• The non-moving spouse has voluntarily established an alternative residence and returning would cause domestic strife.

Courts are generally reluctant to remove a spouse from their home absent compelling circumstances, especially if there are no allegations of domestic violence. When domestic violence is alleged, the court may issue a temporary order of protection in conjunction with granting exclusive use.

The financial implications of exclusive use orders can be wide-reaching, as dispossessing a spouse may then require further orders regarding responsibilities for rent, mortgage, utilities, and maintenance expenses during the pendency of the action.

5. Temporary Orders of Protection

In cases involving allegations of domestic violence or harassment, a spouse may seek a temporary order of protection as part of Pendente Lite relief. These orders may:

• Prohibit contact or communication between the parties
• Establish stay away provisions with specific distance requirements
• Order the alleged abuser to refrain from specific behaviors
• Address temporary custody and parenting time with safety measures in place
• Require surrender of firearms

Family offense proceedings can be initiated in either Family Court or Supreme Court, with Supreme Court being the preferred venue when tied to a divorce action.

6. Payment of Financial Obligations and Household Expenses

Pendente Lite orders will often address the payment of ongoing household expenses and financial obligations necessary to maintain financial stability during the divorce. These may include:

• Mortgage or rent payments
• Utility bills
• Insurance premiums
• Car payments
• Credit card minimums
• Children’s expenses
• Tax obligations

The court may direct one or both parties to continue paying certain expenses based on their respective financial abilities and the status quo established during the marriage.

7. Interim Counsel Fees

To ensure that both parties have equal access to legal representation, courts may award interim counsel fees to the less-monied spouse. These orders level the playing field by preventing the monied spouse from gaining an advantage through superior financial resources.

Under DRL §237, there is a rebuttable presumption that interim counsel fees should be awarded to the less-monied spouse. The court considers:

• The financial circumstances of both parties
• The complexity of the case
• The time and expertise required
• The reasonableness of the fees requested

Fee applications must include a Statement of Net Worth, retainer agreements, billing statements and detailed affirmations from both the client and attorney, specifying the services rendered, time spent, and rates charged, among other requirements

8. Temporary Restraining Orders on Marital Assets

To prevent the wasteful dissipation or concealment of marital assets during divorce proceedings, the court may issue various temporary restraining orders that:

• Freeze certain bank accounts or investment portfolios
• Prohibit the transfer, encumbrance, or sale of real property
• Restrict unusual or excessive spending
• Prevent changes to beneficiary designations on insurance policies or retirement accounts
• Require accounting of business assets or income

These orders are generally intended to maintain the status quo until equitable distribution can be determined at trial or through settlement.

Procedural Requirements for Pendente Lite Motions

Filing the Pendente Lite Motion

To obtain Pendente Lite relief, generally, a party must file a written motion with the Supreme Court. The motion papers typically include:

1. Notice of Motion or Order to Show Cause: The initiating document that specifies the relief requested and the return date (when the court will hear the motion). In urgent situations, an Order to Show Cause may be used to expedite the process and potentially obtain immediate temporary relief pending the hearing.
2. Affidavit or Affirmation: A sworn statement from the moving party detailing the facts supporting the requested relief.
3. Statement of Net Worth: A comprehensive financial disclosure form required in any matrimonial action where financial relief is sought. This document must be sworn to under oath and includes detailed information about income, expenses, assets, and liabilities.
4. Attorney Affirmation: A supporting statement from the attorney explaining the legal basis for the requested relief.
5. Exhibits: Documentation supporting the motion, such as financial records, communication between parties, school records, or medical information.
6. Proposed Order: A draft of the order the party is asking the court to sign.

Determination of Pendente Lite Motions and Hearings on Pendente Lite Motions

While many Pendente Lite motions are decided on the papers without testimony, the court may schedule a preliminary conference or hearing if there are disputed factual issues, particularly regarding custody or allegations of domestic violence. These hearings are typically more limited in scope than a full trial but allow the judge to assess credibility and clarify factual discrepancies.

Duration and Modification of Pendente Lite Orders

Pendente Lite orders remain in effect until the final judgment of divorce or until modified by subsequent court order. Either party may file a motion to modify temporary orders if they can demonstrate a substantial change in circumstances since the original order was issued.

Strategic Considerations of Pendente Lite Motions

Timing

The timing of Pendente Lite motions requires careful strategic consideration. Filing too early might mean incomplete financial information is available; filing too late could leave a client struggling unnecessarily or may result in the court referring the issue to trial without granting any relief in the interim. In some cases, it makes sense to attempt negotiation of temporary arrangements before resorting to court intervention.

Documentation

As Pendente Lite motions are usually decided based on the papers alone, success in Pendente Lite applications frequently depends on thorough documentation. Clients should be advised to:

• Gather financial records before filing
• Document communication regarding children
• Preserve evidence of the marital standard of living
• Keep records of all expenses
• Maintain a log of parenting time

Settlement Negotiations

Even after submission of motions, parties should remain open to negotiating temporary arrangements. Stipulations regarding temporary issues can save substantial time and legal fees while giving parties more control over the outcome than a decision from the court.

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Conclusion on Pendente Lite Motions

Pendente Lite orders and interim relief are essential in the effective litigation of any divorce proceeding. At the Law Office of Louis L. Sternberg, PC, we counsel our clients through this often frustrating process with strategic foresight and recognition that these temporary orders will often shape the trajectory of the case through conclusion. By helping our clients obtain appropriate temporary relief, we not only address immediate concerns but also gain an edge in negotiating a settlement or proceeding to trial.