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Immediate Help in Divorce Proceedings

Posted by attorney Kenneth Keith

Immediate Need- As divorces take time an application can be made to the Court, at virtually any point in the divorce, for pendente lite relief (relief granted during the divorce proceeding). Frequently this is the first thing your lawyer must do for you. The purpose of a pendente lite Order is to maintain, to the extent possible, the status quo (life as it existed before the divorce was started) and to give order to the lives of the parties while the divorce proceedings continue. Among the things you can request of the Court, pendente lite, is:

Child support- Sometimes the anger of the moment results in a termination of support for the children. The Court will act to restore appropriate support immediately.

Spousal support (alimony or maintenance)- As with counsel fee awards and no-fault divorce, the changes to the Domestic Relations Law effective on October 12, 2010 change how temporary spousal support are to be determined and are nothing less than revolutionary. The new law provides a fixed formula for awarding temporary maintenance (in New York alimony is referred to as “maintenance").

The formula provides that temporary maintenance should be the lesser of:

1) Thirty percent of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s income.

2) Forty percent of their combined income, minus the lower-earning spouse’s income.

This 'income shifting" approach has raised more questions than it has solved as it came with no direction as to how to deal with other pendente lite issues as, prior to the enactment of the new law, the Court would seek to maintain the status quo (as with carrying charges, below) but once the income has been redistributed a different approach to the allocation of economic responsibility would appear necessary to avoid an inequitable result. This may result in the non-monied spouse actually ending up with less than they might have under the old law, not a result it would appear the legislature had in mind. Time and court decisions will unravel this newly created uncertainty.

A commission has been set up to determine standards for spousal support after a divorce action but they have a long time before they have to issue a recommendation.

Payment of carrying charges - Although clearly intertwined with both child and spousal support, the Court may require payment of some or all of the carrying charges on a marital residence on the marital home or other properties.

Restraining Orders - There are now Automatic Orders that go into place a) against the person starting the lawsuit immediately upon commencement and b) upon the person being sued immediately upon being served.

Custody - For a number of reasons it may be necessary to have the Court make a temporary decision on the custody of minor children. Ultimate decisions usually involve having a law guardian (attorney) appointed for the children and, possibly, a forensic (psychological or psychiatric) evaluation performed. The best interests of the children will guide all Court actions.

Visitation/Parenting time - Frequently, just as the non-custodial parent uses money (child support) as a weapon, the parent with the child withholds visitation to punish or hurt the other, the custodial parent will withhold the children. The Court will act swiftly to avoid damage to the relationship between parent and child. If warranted, restraints involving location or supervision can be placed upon all visitation.

Exclusive Use and Occupancy of Marital Residence - Sometimes things can get so out of hand that it doesn't make sense for the parties to continue to reside together during the divorce. The Court can give one spouse the right to live in the parties' home and remove the other spouse, by force if necessary.

Counsel fees- Effective October 12, 2010, the legislature amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. Formerly the burden fell on the spouse seeking counsel fees to prove the need for them. The new law shifts the burden to the spouse from whom counsel fees are being sought to show why the Court should not award counsel fees. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination.

The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded “actions to enforce a court order".

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