Long Island Family Law and Mediation Blog
Maintenance is a common consideration in many divorce cases, wherein extra support needs to be offered to a specific spouse. In many divorces, the less-monied spouse seeks temporary maintenance to help with the costs of getting legal representation and supporting themselves when the divorce is ongoing. At times both temporary maintenance and post-divorce maintenance (support given at the end of a divorce), can help to preserve a spouse’s financial wellbeing during the case and when a marriage is dissolved.
Any maintenance order given by the courts in New York, whether temporary, or post-divorce in nature, has the possibility of being retroactive. This means the party seeking support may receive payments owed backward from the moment they applied for this support. For individuals attempting to get back on track as quickly as possible, it’s important to ensure you’re getting access to all of the financial support owed.
Notably, temporary maintenance is not subject to the same advisory schedule for duration as post-divorce maintenance. Let’s take a closer look at the complexities of calculating maintenance arrears in the case of temporary maintenance.
Does Temporary Maintenance Factor into Post-Divorce Awards?
If you’re applying for both temporary maintenance and post-divorce maintenance, you may be wondering whether one award might influence the other. According to statute DRL 236 Part B, temporary maintenance orders should be without prejudice to the rights of either party for a post-divorce award. However, the party who paid the temporary maintenance and must now pay post-divorce maintenance will often be entitled to credit for any amount already paid voluntarily during the pending action of the divorce. Your Long Island or Nassau County Divorce Lawyers can make the arguments to the court on how long maintenance should last.
The case of Sinnot vs Sinnot, 194 A.D.3d 868 (2nd Dept. 2021) underlined the fact that a party’s maintenance child support and spousal maintenance obligations should be retroactive to the date when the applications for such support were made. This is often the filing date of the Summons or a Counterclaim. The supreme court in this case erred when they ordered the defendant to pay support commencing on the first day of the month after the decision to award post-divorce maintenance was established. The defendant was required to pay support on a retroactive basis, but they did receive credit for the voluntary payments given before the order was established.
For this case, the defendant was found to be eligible for credit for any child support and temporary maintenance made pursuant to the pendente lite order being given. The appeals court referred this case back to the supreme court to determine whether the payment of any arrears owed should be made either periodically, or in one lump sum.
However, this doesn’t mean that paying voluntarily before an order is given means a spouse will not need to pay any maintenance in the future. In the case of Emmanuel vs Ximena, 2021 N.Y. Misc. LEXIS 5161 (Kings County S.Ct. 2021) the plaintiff requested the courts determine he had paid spousal maintenance in accordance with statutory guidelines – meaning no further payment was necessary. The courts noted that paying pendente lite spousal support did not prevent the husband from having to pay maintenance as part of a post-divorce order.
As with most things in the family law and divorce, seeking support from the right legal professional can help to ensure you get the guidance you need to protect your best interests. This is crucial whether you’re applying for back-paid spousal or child support, or you’re attempting to apply for credit for the payments you have already made.
When Will Maintenance Calculations Change?
For the most part, the courts of New York will calculate the duration and amount of child support awarded for each case on a retroactive basis for both temporary and post-divorce awards. This means the application for the award should be the date when the payments would start. This places individuals who are ordered to pay spousal and child support in “arrears”, meaning they owe a certain amount of unpaid support to their ex-spouse. The courts are able to determine whether this amount should be paid all at once, or over the course of several months or years.
If a spouse chooses to make “voluntary” payments with the guidance of their attorney, they can do so, and receive credit back from the courts for the amount already paid. However, if a long-term award is not delivered, or support is not deemed necessary, it may not be possible to recoup these funds.
Though in most cases, the payment of pendente lite maintenance amounts does not influence the post-divorce maintenance payments of parties in a divorce, the courts may choose to act outside of these guidelines. This may happen in a case where there are specific circumstances in place. In one case, titled Jessica T. vs Keith T, 128 N.Y.S.3d 429 (Suffolk S.Ct. 2020). found the plaintiff in the situation needed to be compensated for the injuries caused by the defendant’s “abusive” litigation practices.
The plaintiff was rewarded ten years of maintenance payments, and while normally the amounts and years paid during the pendente lite periods are accounted form in the formulation of post-divorce maintenance, the defendant’s actions meant they received no credit for 6 years of pendente lite payments.
If you have any concerns about the issues addressed above, you can reach out to this office via the online contact form on this website, or through our contact number. You can schedule a free initial consultation of up to thirty minutes to address your concerns, and help you make decision about your potential divorce or family law case.