On the wife’s motion for temporary relief, Supreme Court, New York County Justice Deborah A. Kaplan in Lennox v. Weberman, awarded the wife tax-free maintenance of $38,000 per month, plus the wife’s unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000.

By its February 26, 2013 decision, the First Department modified that order, on the facts, to provide that such pendente lite relief would be treated as an advance on the 50 percent of the parties’ joint funds to which the wife is entitled pursuant to the parties’ prenuptial agreement.

Notwithstanding that the wife had waived any claim to a final award of alimony or maintenance in the parties’ prenuptial agreement, Justice Kaplan was entitled, in her discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

As to the amount of the temporary maintenance award, the appellate court found that Justice Kaplan properly applied the new temporary maintenance formula set forth at Domestic Relations Law § 236(B)(5–a)(c)(2)(a). Specifically, Justice Kaplan had listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not “unjust or inappropriate.”

Continue Reading Pendente Lite Award Prospectively Charged as an Advance Against Wife’s Share of Marital Property

Prenuptial Agreement.jpgThe premarital agreement of the parties limited their rights to obtain spousal support upon divorce. It also contained a waiver of their rights to counsel fees.

Nevertheless, recently-retired New York County Supreme Court Justice Saralee Evans awarded the wife $6,000 per month in unallocated pendente lite support (an award not specifying how much of it was spousal maintenance and how much was child support). Justice Evans also made two separate awards of interim counsel fees to the wife, each in the sum of $25,000.

In its June 12, 2012 decision in Vinik v. Lee, the Appellate Division, First Department, affirmed.

While the parties’ premarital agreement limits their rights to obtain spousal support and waives their rights to counsel fees, it does not bar temporary relief, including temporary maintenance [and] interim counsel fees.

The appellate court specifically noted that the parties’ agreements did not address custody and child support. Therefore, the waiver of counsel fees did not apply to counsel fees related to litigating child custody and support issues.

Moreover, the First Department noted that Justice Evans made her counsel fee awards based on a proper consideration of the financial circumstances of both parties together with all the other circumstances of the case. Justice Evans also properly considered the fees necessitated by the husband’s litigation tactics and to ensure that the litigation would not be “shaped . . . by the power of the bankroll” (quoting the Court of Appeals decision in O’Shea v. O’Shea, 93 N.Y.2d 187 [1999]).

The appellate court noted that under Illinois law, which governed the parties’ agreement, the result would be the same. In that state, a ban on a counsel fee award in a premarital agreement is not enforceable as to child-related issues. That would violate public policy. Moreover, Illinois law also permits an interim counsel fee award where the parties have waived counsel fees in an agreement.

The wife was represented by Nina S. Epstein of Goldweber Epstein LLP; the husband was represented by Kevin M. McDonough of Stein Riso Mantel, LLP; both of New York City.