Get the help you need now, NOT when your divorce is final
Immediate Need – Either or both spouses have to address the very important considerations of money for the kids, money for the spouse, household bills and access to the children. These are frequently overlooked and the sooner they are addressed, the sooner the focus can shift to the final resolution of the divorce.
As divorces take time an application can be made to the Court at virtually any point in the divorce. Frequently this is the first thing your lawyer must do for you. The purpose of a pendente lite Order during the divorce proceeding is to maintain, to the extent possible, the status quo 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, there is 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.
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 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 attorney for a child (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 can sometimes withhold visitation to punish or hurt the custodial parent. The Court will act swiftly to avoid damage to the relationship between parent and child and 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 court order 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. 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.