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Temporary Maintenance and Pendente lite support in New York
Part 3

Actions commenced on or after October 25, 2015

DRL 236 B(5-a)

22 NYCRR 212.16(k)

By J. Douglas Barics

March 2016


For Part 1 of this article, See Introduction to Maintenance



NY Spousal Support and MaintenanceMaintenance may be requested as ancillary relief as part of an underlying divorce, and at the conclusion of the case, all issues surrounding maintenance will be decided; whether or not it is granted, the amount, and the duration will be set by the court absent an agreement between the parties.


Since it may take years for a divorce to be finalized, often one party may need an award of maintenance well in advance of the trial to carry him or her while the divorce is ongoing. These awards pending the trial are known as pendente lite awards. Following the revisions to pre-trial maintenance, pendente lite maintenance is now called temporary maintenance, and is calculated by a combination of various formulas found in Domestic Relations Law 236 B(5-a).


Either spouse may request temporary maintenance by making a motion pursuant to DRL 236 B(5-a). For any motion seeking maintenance, additional requirements are found in 22 NYCRR 212.16(k) which in order for the motion to be considered. DRL 236 B(5-a) was significantly amended in 2015, and these revisions apply to any divorce or annulment filed on or after October 25, 2015.


A request for temporary maintenance is made by motion, this requirement is now specified by DRL 236 B(5-a)(a) which provides that it is available upon application by any party. To make an application, a party is required to make a motion.


Temporary maintenance motions are made either by order to show cause or notice of motion, and are normally decided only upon the motion papers alone. These include the supporting affidavit of the party seeking maintenance, and exhibits should include the signed statement of net worth, tax returns, W-2, 1099, and any other relevant exhibits used in support of the motion. 22 NYCRR 212.16(k) sets forth the required papers needed.


The original D.R.L 236 B(5-a) was signficantly amended, and as of January 25, 2016, all new temporary maintenance is now determined under the revised section 5-a. The revised section 5-a cured many of the defects in the original statute. It also is consistent with the approach for post divorce maintenance under DRL 236 B(6).


The following is presented to match the order of the statute, for ease of reference.


A. Application


The temporary maintenance provisions of DRL 236 B(5-a) shall apply if either party makes a motion for temporary maintenance, unless there is is an agreement to the contrary.




B. Definitions


    (1) "Payor" means the spouse with the higher income.


    (2) "Payee" means the spouse with the lower income.


    (3) "Length of marriage" means the time from the date of marriage through the date the action is commenced.


    (4) "Income" is the same definition for child support in DRL 240 and F.C.A. 413, with no subtraction being made for maintenance paid by the payor to the payee.


    (5) "Income cap" is the first $175,000 of the payor's income. This figure is adjusted every two years and in 2016, is currently $178,000.


    (6) "Guideline amount of temporary maintenance" is the amount of temporary maintenance arrived at under C or D of the temporary maintenance provision


    (7) "Self-support reserve" is the same as the self-support reserve defined in the child support standards act.


    (8)"Agreement" is a matrimonial agreement made pursuant to DRL 236 B(3).



C Guidelines when Payor's Income is less than Income Cap


    (1) Temporary Maintenance Guidelines when the payor is paying child support to the payee:


      (a) (20% of payor's income) – (25% if payee's income) = __________.


      (b) 40% X (payor's income + payee's income)= _________


      (c) Answer to (b) – (payee's income) = _________


      (d) Take the lower of (a) or (c).


      (e) The amount in (d) is the temporary maintenance. But if it is less than or equal to zero, then temporary maintenance shall be zero.


      (f) Temporary maintenance shall be calculated prior to child support, and will be subtracted from payor's income and added to payee's income for determining child support.



    (2) Temporary Maintenance Guidelines when the Payor is receiving child support or when there is no child support.



      (a) (30% of payor's income) – (20% of payee's income) = ________.


      (b) 40% X (payor's income + payee's income) = ________.


      (c) answer to (b) – (payee's income) = ________.


      (d) Take the the lower of (a) or (c)


      (e) The amount in (d) is be the temporary maintenance, but if it is less than or equal to zero, temporary maintenance is be zero.


      (f) Temporary maintenance shall be calculated before child support. Temporary maintenance shall be deducted from the payor's income and added to the payee's income when determining income for child support.



D. Guidelines when Payor's Income Exceeds the Cap



    (1) For income to the cap, apply section C.


    (2) For income over the cap, additional temporary maintenance is at the court's discretion using factors in section H.


    (3) The court is required to state the factors it considered and its reasoning, either by written order or on record. This provision cannot be waived.



E. Self Support Reserve


If guideline temporary maintenance reduces payor's income below self support reserve, the guideline amount shall be (payor's income) – (self support reserve). If income is less than self support reserve, rebuttable presumption of no temporary maintenance.



F. Duration of Temporary Maintenance


Temporary maintenance orders no longer automatically continue until they terminate. The Court now has the authority to set a duration to temporary maintenance based on length of marriage.


G. Termination of Temporary Maintenance


Temporary maintenance automatically terminates upon death of either party or when the judgment of divorce is granted.


H. Temporary Maintenance Guidelines are Required Unless There is a Finding they are Unjust or Inappropriate



    (1) Factors used when adjusting temporary maintenance awards from a guideline amount.


    The guidelines for temporary maintenance will be used, unless the court makes a finding they are unjust or inappropriate. If so, the court must use one or more of the following factors in its reason for adjusting the guideline amount.


      (a) the age and health of the parties;


      (b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;


      (c) the need of one party to incur education or training expenses;


      (d) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;


      e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;


      (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;


      (g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;


      (h) the availability and cost of medical insurance for the parties;


      (i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;


      (j) the tax consequences to each party;


      (k) the standard of living of the parties established during the marriage;


      (l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and


      (m) any other factor which the court shall expressly find to be just and proper.



    (2) Deviation from guidelines requirements


    If the court adjusts the temporary maintenance from the guidelines upon finding the guideline award is unjust or inappropriate, the court is required to set forth its reasons in either a written decision or on the record. This requirement cannot be waived.


    (3) Unrepresented parties


    If either party is unrepresented, the court is required to inform the unrepresented party of the guideline amount of temporary maintenance before it enters a temporary order.



I. Right Remains to Enter into an Agreement


The temporary maintenance provision does not prevent the the parties from entering into an agreement that differs from the presumptive award of temporary maintenance.



J. When the Payor Defaults or Provides Insufficient Disclosure


This provision is a penalty that may be utilized only when a payor defaults or fails to present sufficient evidence determine income.


A support order made under this section will be based on the needs of the payee or the standard of living of the parties, whichever is greater.


If the new evidence is later found, and it would result in the guidelines giving an even greater award, the maintenance order may be retroactively increased without any showing of a change in circumstances.



K. Prior Order Made Before Amendment to Statute


If there is an order issued before the amendments to DRL 236 B(5-a) were adopted, the new guidelines themselves shall not constitute a change of circumstances for a modification of a temporary maintenance order.



L. Prior Agreement Made Before Amendment to Statute


If there is a prior agreement made before the amendments to DRL 236 B(5-a), the revisions to temporary support themselves do not constitute a change of circumstances to warrant a modification for a temporary maintenance order.



M. Allocation of Family Expenses During the Divorce


As part of a temporary maintenance award, the court is authorized to determine the determine the responsibilities of each spouse towards ongoing family expenses.



N. No Prejudice to Final Maintenance


An award of temporary maintenance does not prejudice either party regarding their request for a post-divorce maintenance award.




An order of temporary maintenance is considered an appealable order under CPLR 5512 and is appealable as of right under CPLR 5701 as it was issued following an motion made on notice. The right to appeal a temporary order begins when the order is entered and must be taken within the timeframe set forth in CPLR 5513. Note that an appeal from a temporary order terminates upon the final order (Matter of Aho), but an appeal from a final order may raise any issues arising from non final orders pursuant to CPLR 5501 unless the appeal from temporary order was abandoned and dismissed pursuant to the Court of Appeals holding of Rubeo v National Grange Mutual Insurance Co. 93 N.Y.2d 750 (1999).


As a practical matter, most appeals from pendente lite orders are denied, with the remedy being a speedy trial to resolve any unjust pendente lite order. See Vistocco v Jardine 116 AD3d 842 (2nd Dept. 2014),  As a general rule, only the most egregious temporary support orders will be modified by an appeal.


Continued in Part 4


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The article "Temporary Maintenance and Pendente Lite Spousal Support in New York Part 3 Actions commenced after or after October 25, 2015" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.


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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.



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