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.”

The First Department further found that it was proper to impute an annual income to the husband of $2.29 million when it computed maintenance, since this was his income on the most recent tax return. A court need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential. The court properly took into account the husband’s income from his investments, voluntarily deferred compensation, and substantial distributions, which was $50.5 million the previous year.

Under the circumstances of this case, however, we deem it appropriate to charge the interim awards against the one-half share of the marital property to which defendant is entitled under the prenuptial agreement. In so doing, we find it significant that the parties provided in the agreement that each waived any right to the separate property of the other, that living expenses were to be paid out of the marital property, and, as previously noted, that the marital property would be equally divided in the event of divorce. We also find it significant that, here, the equal division of the marital property to which the parties agreed will leave each of them with substantial wealth.

The First Department also noted that Domestic Relations Law § 237(a) authorized the court in its discretion to direct either spouse to pay counsel fees to the other spouse “to enable the other [spouse] to carry on or defend the action or proceeding.” Here, the court’s award of interim counsel fees of $50,000 and expert fees of $35,000 was warranted under the circumstances where the parties’ assets appeared to be anywhere from $77 million to $90 million. In any event, the amounts awarded were significantly less than the $200,000 and $75,000 amounts the wife had requested for interim counsel and expert fees, respectively. While there were some funds in the wife’s possession, the appellate court noted that the husband is in a far better financial position than his wife.

The wife should not have to deplete her assets in order to have legal representation comparable to that of plaintiff.

Allan D. Mantel, Esq., Kevin M. Donough, Esq., and Adam J. Turbowitz, Esq., of Stein Riso Mantel, LLP, of Manhattan represented the husband; Charles Fox Miller, Esq., of Boies, Schiller & Flexner LLP, of Manhattan, represented the wife.