How to Get Spousal Support Before Your Divorce Is Final

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How to Get Spousal Support Before Your Divorce Is Final

Divorce is not a fast process. From the time you first meet with your lawyer to the day the judge signs your judgment of divorce could easily be one to two years. Divorces amongst the wealthy are particularly complex, requiring careful identification and valuation of myriad assets and can take a particularly long time to resolve. You certainly don't want your attorney to rush your case, but at the same time, you may want or need financial payments from your spouse to continue your way of life. Pendente lite support payments provide temporary spousal maintenance (support or alimony) while your case is pending.

Why Maintenance Is Awarded at the End of Your Case

When a court awards spousal maintenance in a divorce case, it is awarded as part of the entire financial package. Your divorce case will include property distribution which is a very complex process. The court must first obtain a complete accounting of all the assets and debts involved. Then separate and marital assets must be designated, with only marital assets distributed in the divorce. Next, the assets and debts must be accurately valued. Then the court will decide how the assets are distributed.

There are a wide number of assets that must go through this process, including real estate, securities, retirement assets, business ownership, vehicles, collectibles, jewelry, art, and much more. If you have minor children, the divorce will also include a child support award, which must also be calculated. 

Property distribution, child support, and maintenance are issues that must all be decided simultaneously as part of the complete divorce package awarded by the court. Since they are financial matters, they are intertwined, and each impacts the other. Due to this process, the court cannot decide on maintenance until the other issues are also decided, all at the end of the case.

Why Temporary Maintenance Is Ordered

Because it can take more than a year for a complex high net worth divorce to be decided by the court, New York state allows spouses to seek temporary maintenance while the case is ongoing. In marriages where one spouse is the moneyed spouse with control of most of the assets and a high income, the non-moneyed spouse is at a disadvantage while the case is ongoing. 

The couple lived together and had a certain standard of living that they and any children enjoyed. Once the couple separates, the non-moneyed spouse suddenly is left with a much lower income and access to fewer assets. In recognition of the fact that no one should be penalized just for filing for a divorce, or because their spouse chooses to file for divorce, New York courts have a law in place that allows for payment of temporary maintenance to the non-moneyed spouse throughout the pendency of the divorce case. Without this payment, many people could find it challenging to remain in their homes, pay their bills, support their children, or continue their lives at the level they are accustomed to. 

How to Seek Temporary Maintenance

To seek temporary maintenance in your divorce case, your attorney will file a motion with the court, attaching documentation, including tax returns, statements of net worth, W-2s, 1099s, and other proof of income and assets. The judge will make a decision based on the motion. It's possible to file a motion for temporary support as soon as your divorce case is filed so that you can begin to receive payments as quickly as possible. 

Calculating Temporary Maintenance

In New York, there is a detailed formula used to calculate the amount of temporary maintenance. There is an income cap (at the time of writing, that cap is $184,000), which applies to the formula used. In cases with income below the cap, the formula is used to establish the amount of maintenance. High net worth divorces involve income far above the cap, and in those cases, there is a different rule that applies. The court must first calculate the amount of support due for the income below the cap. 

Then, the court may set an additional amount for the income that is over the cap based upon a variety of factors including:

  • Whether the spouses have done things that prevent the other from keeping or finding employment
  • Whether either spouse has a home they owned before the marriage or whether the spouses owned a home together before they were married
  • Wasteful dissipation of marital property by either spouse
  • The present or future earning capacities of the spouses, including their work history
  • The need for one spouse to seek an education or training to support themselves and the cost of that education or training
  • The availability and cost of health insurance for the spouses
  • The age and health of the spouses
  • Tax consequences to the spouses
  • Reduction in or loss of the non-moneyed spouse’s earning ability because they delayed or skipped receiving employment, training, career opportunities, or education while married
  • Domestic violence  between the spouses
  • Child support awards in the case
  • Care provided for family (children, stepchildren, disabled adult children, elderly parents or in-laws) during the marriage that has inhibited one spouse's earning capacity
  • Availability and cost of health insurance for the spouses
  • Any other factor the court finds it is appropriate to consider

Other Things to Know About Temporary Maintenance

In addition to understanding how the court calculates temporary maintenance, there are some other important facts to understand. The court will make an award of temporary maintenance. However, it does not prevent you and your spouse from entering into a settlement agreement about temporary and ongoing maintenance should you come to an agreement. In addition to setting maintenance, the court can also allocate the cost of family expenses among the spouses, which is payable in addition to the temporary maintenance. 

The award of temporary maintenance is separate from an award of final maintenance in the case, and the court must re-evaluate maintenance as part of the final order. However, practically speaking, if a temporary maintenance award is made, it's very likely there will be an award of maintenance as part of the judgment of divorce.

Temporary maintenance is an important financial tool that can be used during a divorce to ensure that the non-moneyed spouse can maintain a standard of living while the case is being decided. 

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Dror Bikel

Dror Bikel is a Manhattan-based divorce and child custody lawyer. He founded and leads Bikel and Schanfield, New York’s best-known firm for high-conflict matrimonial disputes.

As founding partner of the Manhattan-based firm, Bikel & Schanfield, LLP, Dror Bikel’s 20+ years of trial and litigation experience offers invaluable insight in facilitating settlements, mediating disputes and obtaining superior results for his clients. A recipient of the New York Super Lawyers Award, Mr. Bikel is voted among the Top 5% New York State Family Law Attorneys.

To connect with Dror: 212.682.6222 or [hidden email] or online
To learn more about Bikel & Schanfield: bikellaw.com
To learn more about Dror's book The 1% Divorce: When Titans Clashsuttonhart.com

For media inquiries or speaking engagements: [hidden email]



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