Temporary Orders During a New York Divorce: Support, Custody and More

Pendente Lite Relief in New York Divorce Cases

A contested divorce in New York can take months or even years to resolve. During that time, you still need to pay your mortgage, cover your children’s expenses, and figure out where everyone is going to live. Temporary court orders, sometimes called pendente lite relief, allow the court to address these issues while the divorce is pending. If you are going through a contested divorce on Long Island or in Suffolk County, understanding temporary orders and how to obtain them is one of the first things you should discuss with your attorney.

What is Pendente Lite Relief in a New York Divorce?

The term “pendente lite” is Latin for “pending the litigation.” Pendente lite motions ask the court for temporary orders that will remain in effect until the divorce is resolved by trial or settlement, or until the court modifies them. These orders are intended to maintain stability and protect the rights of the parties and their children while the case is pending.

Pendente lite relief is not supposed to set precedents for the final judgment or act as a preview of how the court will ultimately decide the case. In practice, though, temporary arrangements frequently influence final outcomes, which makes these early motions strategically significant.

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, known 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 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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Frequently Asked Questions About Temporary Orders in a New York Divorce

How long do temporary orders last in a New York divorce?

Temporary orders remain in effect until the court issues a Judgment of Divorce or until the court modifies them by subsequent order. In a contested case in Suffolk County, that can mean months or even years depending on the complexity of the litigation.

Can temporary custody orders become permanent?

Temporary custody orders are not intended to predetermine the final custody arrangement. In practice, however, courts tend to favor stability for children, and the temporary arrangement often influences the final determination. That is why it is so important to take temporary custody motions seriously from the start.

How is temporary maintenance calculated in New York?

New York uses a statutory formula based on both parties’ incomes. The basic calculation takes 30% of the higher earner’s income and subtracts 20% of the lower earner’s income, subject to an income cap that is adjusted every two years. When combined income exceeds the cap, the court has discretion to consider additional factors. For the current cap amount, see our post on the 2026 child support and maintenance income caps.

Can I get my spouse removed from our house during the divorce?

You can apply for exclusive use and occupancy of the marital residence as part of a pendente lite motion. To succeed, you generally must show that exclusive occupancy is necessary to protect the safety of persons or property, or that your spouse has already voluntarily established another residence. Courts are reluctant to remove a spouse from the home absent compelling circumstances, particularly allegations of domestic violence.

What happens if my spouse violates a temporary court order?

Violating a temporary court order can result in a finding of contempt, monetary sanctions, an award of counsel fees to the non-violating party, and in some cases modification of custody or other relief. If your spouse is not complying with a temporary order in your Suffolk County divorce, you should consult with your attorney about filing an enforcement motion.

Are pendente lite orders retroactive in New York?

Temporary maintenance and child support awards can be made retroactive to the date the application was filed. This means that any delay between filing your motion and the court’s decision does not necessarily result in lost support, but you cannot recover support for any period before you actually filed.

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Temporary Orders Can Shape the Outcome of Your Divorce

Temporary orders during a contested divorce protect your finances, your relationship with your children, and your right to fair legal representation while the case works toward resolution. At the Law Office of Louis L. Sternberg, we regularly handle pendente lite motions in Suffolk County Supreme Court and understand how these early decisions often set the tone for the entire case. Whether you need temporary maintenance, child support, a custody arrangement, exclusive use of the marital home, or an order of protection, acting quickly and filing a well-supported motion can make a real difference in both the short term and the final outcome.

If you are facing a contested divorce on Long Island and need to discuss temporary relief, call us at (631) 600-3295, contact us here, or fill out our online intake form to schedule a free consultation.