Temporary (Pendente Lite) Relief

In addition to providing a guideline for the amount of a maintenance (alimony) award, New York’s relatively new maintenance (alimony) statute includes a presumptive range for the period of time maintenance is to be paid based upon the length of the marriage. Particularly with short marriages, what should be the impact of the length of the marriage on the award of maintenance while the divorce action is pending? Put differently, should a spouse be able to increase support, just by keeping the divorce action going?

In her August 31, 2017 decision in Barlik v. Barlik, Acting Queens County Supreme Court Justice Elisa S. Koenderman was faced with that issue.

Among the temporary relief sought by the parties in this divorce action, the parties husband cross-moved for exclusive use and occupancy of the marital residence. The wife moved, in part, for temporary maintenance and child support and for an order directing the husband to pay 100% of the carrying costs of the marital residence; an order appointing a forensic accountant to value the income from the husband’s business as well as a real estate appraiser to value the marital residence, both at the husband’s expense; and for counsel fees.

Justice Koenderman first denied the husband’s motion for exclusive use and occupancy, but granted the wife’s cross-motion for exclusive use and occupancy of the marital residence.

The Court then granted the wife’s motion for temporary maintenance and child support. As required by the statute, the court calculated the guideline amount by applying the statutory formula to the payor’s income up to the statutory cap of $178,000 (see DRL § 236[B][5-a][b][5] & [6]). Then, the court may adjust the guideline amount of temporary maintenance if it is “unjust or inappropriate” (DRL § 236[B][5-a][h][1]). The court must consider certain enumerated factors, including but not limited to the health and age of the parties; the present or future earning capacity of the parties; and care of children during the marriage that inhibits a party’s earning capacity, as well as any other factor which it finds just and proper to determine “whether and to what extent it will apply the statutory formula” to the payor’s income which exceeds the statutory cap.

Continue Reading Considering the Length of the Marriage and Other Factors on Temporary Support Awards

In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

  • awarded the plaintiff custody of the parties’ child;
  • directed the defendant to pay child support in the sum of $293.20 per month;
  • awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and
  • awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

Continue Reading The Burden At Trial to Change Temporary Custody Award; Counsel Fees Where Rules Not Followed

Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).

Continue Reading Making It Tougher To Deviate From Presumptive Formulas on Temporary Support Awards

In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.

To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement, at least in part, the parties had waived interests in each other’s pensions. Contrary to the wife’s contention, that mutual waiver was not unconscionable, and was not necessarily one-sided when it was made, as both parties had accumulated approximately three years in their respective pensions at that time. Moreover, the Court stated that the husband’s threat to cancel their wedding if the agreement was not signed did not establish duress.

The Second Department modified Justice Collins’ order insofar as it deviated from the presumptive temporary maintenance formula. Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct award of temporary maintenance.

Here, the Justice Collins had downwardly deviated from the presumptive award by awarding the wife the sum of only $1,500 per month in pendente lite maintenance. While a court may deviate from the presumptive award if that presumptive award is unjust or inappropriate, the Second Department here held, however, that it was not proper to so deviate. It was an insufficient basis to deviate that the husband “was maintaining the marital residence where he was living after the wife vacated the marital residence with the children, and the fact that the wife stayed home during a portion of the marriage to take care of the children.” Such did not render the presumptive award of pendente lite maintenance unjust or inappropriate. Accordingly, the Second Department held that it must modify the award of pendente lite maintenance to provide the wife with the presumptive award of $2,549.70 per month.

On the other hand, Justice Collins was not required to apply the Child Support Standards Act to determine the award of pendente lite child support. In that regard, any perceived inequity in the temporary child support award can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored.

Finally, the Second increased the interim award of counsel fees from $2,500 to $20,000, the full amount of counsel fees incurred by the wife to date related to the divorce issues. The husband was the monied spouse and, thus, there was a rebuttable presumption that the wife was entitled to an award of attorneys’ fees. At the time the wife moved for her award of attorneys’ fees, the attorneys’ fees she had already incurred amounted to approximately $25,000. Domestic Relations Law §237 does not provide for an award of counsel fees in actions to enforce or rescind prenuptial agreements, and approximately $5,000 of the $25,000 in fees that she actually incurred were attributable to challenging the prenuptial agreement. Therefore, at this juncture, the Second Department held the wife should be awarded interim attorneys’ fees in the sum of $20,000, rather than only $2,500.

Arnold B. Firestone, of Firestone & Breud, PLLC, of Commack, represented the wife. C. Donald Shlimbaum, of Shlimbaum & Shlimbaum, of Central Islip, represented the husband.

Calculator formulaOn June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.

The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.

Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (however, it may be condidered when making other distributive awards).

As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:

Continue Reading Legislature Passes Spousal Maintenance (Alimony) Formula

Calulator on 100sWhen one spouse is paying all the carrying costs of the home, it is appropriate to reduce the presumptive temporary maintenance formula award to the other spouse by half of those costs.

So held the Appellate Division, Second Department, in its May 20, 2015 decision in Su v. Su, affirming an order of Nassau County Supreme Court Justice Jeffrey Goodstein that directed a wife to pay of the expenses of the home in which the parties were residing while the action was pending plus temporary maintenance to the husband of $200 per month.

In the divorce action commenced by the wife, the husband moved for pendente lite relief seeking, among other things, temporary spousal maintenance in the sum of $4,500.15 per month and to compel the wife to pay all of the carrying costs associated with the marital residence, where both he and the wife continued to reside.

In his order, Justice Goodstein directed the wife to pay 100% of the carrying costs associated with the marital residence, totaling $5,003 per month.

Using the statutory temporary maintenance formula (Domestic Relations Law § 236[ B][5-a][c]), Justice Goodstein also calculated the husband’s presumptive award of temporary maintenance to be $2,057 per month, but found that “it would be unjust and inappropriate” to direct the wife to pay both all of the carrying costs associated with the marital residence plus the presumptive award of temporary maintenance. Therefore, the court downwardly deviated from that presumptive award of temporary maintenance, and awarded the husband the sum of $200 per month.

The husband appealed, contending that the Supreme Court erred in its method of calculating the presumptive award of temporary maintenance and in awarding him the sum of only $200 per month.

Here, the Second Department agreed that the “significant downward deviation from [the] presumptive award of temporary maintenance” was appropriate.

The formula to determine temporary spousal maintenance . . . is intended to cover all of the payee spouse’s basic living expenses, including housing costs of food and clothing, and other usual expenses. . . In addition, where both parties continue to reside in the marital residence and one party is ordered to pay the carrying costs, the payor spouse may be credited with half those costs.

Here, nearly all of the husband’s basic living expenses included in the presumptive award of temporary maintenance were already to be paid by so much of the order as directed the wife to pay 100% of the carrying costs associated with the marital residence, as the court calculated these carrying costs to include the monthly costs for the mortgage, gas, electricity, telephone, water, groceries, home entertainment, household repairs, appliances, laundry, gardening/landscaping, and snow removal.

Moreover, the appellate court noted, the husband failed to demonstrate that the pendente lite award of $200 per month would leave him unable to meet his financial obligations. Under the circumstances, the Second Department held that Justice Goodstein properly downwardly deviated from the presumptive award of temporary maintenance to award the husband the sum of $200 per month

Comment: Although the decision notes that the carrying costs totaled $5,003 per month, it is not clear whether each of the open-ended obligations were capped. Thus, requiring the wife to pay all of the bills for groceries, home entertainment, and repairs, etc., could be problematic. Party at the Su home: caviar and white truffles to be served.

Philip Sands, of Garden City, represented the wife. Thomas Weiss & Associates, P.C., of Garden City, represented the husband.

Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. It further provides that the court shall order the presumptive award of temporary maintenance in accordance with the formulas, unless it finds that the presumptive award is unjust or inappropriate. If so, the court must set forth, in its written order, the enumerated factors it considered and the reasons it adjusted the presumptive award of temporary maintenance.

Here, Justice Mackenzie applied the statutory formulas set forth in Domestic Relations Law § 236(B)(5-a) and arrived at a presumptive award of $784.62 per week, but found that the presumptive award was unjust and inappropriate. The court awarded the wife only $75 per week in temporary maintenance, a 96% reduction of the presumptively correct award.

The appellate court held that the record did not support any reduction of the presumptively correct award, or otherwise lead to the conclusion that the presumptive award was unjust or inappropriate under the circumstances of this case.

While an appellate court should rarely modify a temporary maintenance award, here, we conclude that justice requires an award equal to the statutorily presumptive award.

The Second Department also held that Justice Mackenzie had improvidently exercised her discretion in awarding the plaintiff an attorney’s fee in the sum of only $2,500. Considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, and considering all of the relevant factors, the appellate court increased the attorney’s fee to the sum of $7,500.

Of interest here may also be the fact that Justice Mackenzie’s order was dated June 21, 2013 (the motion having obviously been made months before that). It thus took some 20 months for the wife’s temporary support to be increased.

Erik C. Howard, of Foster, Vandenburgh, & Riyaz, LLP, of Westhampton, represented the wife. Alan M. Wolinsky, of Wolinsky, Parnell & Montgomery, LLP, of Lake Ronkonkoma, represented the husband.

Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

Continue Reading Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

The Second Department seems to have taken another bite out of prenuptial agreements. My March 25, 2013 post asked, Is it Open Season on Prenuptial Agreements? That post discussed the Second Department’s February, 2013 decision in Cioffi-Petrakis v. Petrakis and its December, 2012 decision in Petracca v. Petracca. Both cases affirmed Supreme Court Nassau County decisions setting aside the prenuptial agreements in issue,

Now, in an October 15, 2014 decision in McKenna v. McKenna, the Second Department modified an order of Nassau County Supreme Court Justice Margaret C. Reilly that had granted a husband summary judgment motion declaring the parties’ prenuptial agreement to be valid and enforceable. Justice Reilly had also denied the wife’s motion for an award of pendente lite maintenance and counsel fees.

Holding that summary judgment was not warranted, the appellate court may have increased or changed the burden needed to uphold a prenuptial agreement; changing the role of a contract’s “merger clause.” That clause declares that no factual representations not specifically referenced in the contract may later be used to claim the contract was fraudulently induced. Typically, it is a shield used to protect the agreement from attack.

In McKenna, the Second Department suggests a merger clause may be used as a sword: preventing a court from learning the wife’s actual knowledge of the husband’s finances at the time the prenuptial agreement was entered. As that knowledge could only have come from representations of the husband, the merger clause would bar proof of such representations not referenced by the agreement.

Continue Reading It Just Became Tougher To Validate Prenuptial Agreements

Spouses can be compelled to file joint tax returns. Such was among the rulings made by Essex County Supreme Court Justice Robert J. Muller on a motion for pendente lite (temporary) relief made in his May 20, 2014 decision in the divorce action, S.Z. v. C.Z. (N.Y.L.J. June 9, 2014).

The parties had been married for 25 years, when this divorce action was filed in March, 2014. They own 6 parcels of realty including the marital residence on which there is a farm. The wife left the marital residence in December, 2013 with 3 of the parties’ 9 children. 6 of the children are under the age of 21: the 3 who live with the wife, 2 live with husband, and apparently the 6th began living on his own.

Prior to reaching the tax  issue, Justice Muller made rulings on:

  • temporary maintenance for the wife (in which he denied the husband’s request that such be paid in the form of produce, meat, eggs, vegetables, etc., from the family farm);
  • child support for the under-21 6 children;
  • health insurance and expenses;
  • appraisal and counsel fees;
  • access by the wife to personal property left by her at the marital residence; and
  • access to a home equity line that apparently did not exist.

Then, Justice Muller addressed the wife’s request for an order directing the parties to cooperate in the timely filing of a joint income tax return for 2013. Granting that relief, the Court stated:

While the April 15 deadline for filing has now come and gone, defendant indicates that the parties’ accountant has filed an extension for them. This aspect of the motion is therefore granted to the extent that the parties are directed to cooperate in the filing of their 2013 income tax return prior to October 15, 2014.

Comment: It would appear that this aspect of the decision was contrary to law. In Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dept. 1997), it was held that compelling a spouse to file a joint tax return is “contrary to Federal tax law, which gives each spouse unqualified freedom to decide whether or not to file a joint return, and beyond the trial court’s equitable powers.” However, the First Department did note that any adverse financial consequences of a spouse’s refusal to sign joint and/or amended returns can be taken into account in distributing the marital property.

Debra A. Whitson, Whitson Law, of Elizabethtown represented the wife. The husband represented himself.