Long Island Family Law and Mediation Blog
Last week, I blogged about temporary or pendente lite maintenance. This blog will discuss temporary child support or pendente lite (while the case is pending) child support in New York cases. Pendente lite child support is the child support that is either agreed upon or awarded by a court while a divorce or legal separation proceeding is pending and not yet resolved. In Family Court child support cases, the amount that is paid while the case is pending and not yet resolved is called temporary child support.
The Child Support Standards Act dictates the presumptive amounts of child support to be applied in both the Supreme Court or Family Court cases. The law for Supreme Court cases is found in the Domestic Relations Law Section 240 [1-b]. The Family Court Act contains the provisions in Family Court Act Section 413. Courts may use the Child Support Standards Act in applications for pendente lite or temporary child support but they are not required to do it. Davydova v Sasonov, 109 A.D.3d 955, 957-958, (N.Y. App. Div. 2d Dep’t 2013).
Often times the economic information in order to calculate the guideline child support amount is not available at the preliminary stages of a case. That is part of the reason that the law allows a court to use its discretion on whether to apply the guideline amount of temporary child support in a pendente lite or temporary order. Although, even when the information is available, the cases state that the courts are not required to apply the guidelines to the temporary or pendente lite orders. If the data is available, however, an order is likelier to hold up on appeal if a court goes through the analysis required by the Child Support Standards Act as it could be error, if the data is available, to not apply the Child Support Standards Act without supplying a good reason for a deviation. After going though the analysis, deviations from the guideline amount are permissible under enumerated circumstances.
The law states that the temporary or pendente lite award should be retroactive to the application for it. So, this would usually mean when a petition is filed or a motion made in a divorce. The amount of a permanent order can go back to the filing date of the case and any amount paid while the case was ongoing should be considered in calculating any arrears.
So, if a court does not use the Child Support Standards Act in making the temporary or pendente lite award, how does it come up with an amount? An additional amount of child support on top of what a party was voluntarily paying all along for household expenses was held to be proper because the additional support amount and the expenses were sufficient to cover the reasonable needs of the spouse and children while the case was ongoing. George v. George, 192 A.D.2d 693, 597 N.Y.S.2d 129, 1993 N.Y. App. Div. LEXIS 4318 (N.Y. App. Div. 2d Dep’t 1993)
It has been held, too, that it is permissible to order both child support and the carrying charges on the marital residence to be paid despite the argument that this results in a double shelter allowance. Otto v. Otto, 13 A.D.3d 503, 787 N.Y.S.2d 375, 2004 N.Y. App. Div. LEXIS 15592 (N.Y. App. Div. 2d Dep’t 2004). When applying the Child Support Standards Act to an award, the carrying charges should not be ordered in addition to guideline support because shelter is something that the guideline amount is supposed to cover. But, when the court properly exercises its discretion in not applying the Act to the temporary orders, the double shelter argument would not apply.
Usually the remedy for what is claimed to be an improper pendente lite or temporary support award is to order a speedy trial, rather than to correct the temporary or pendente lite order. But, in situations where the order is so prohibitive so that the payor can not meet his or her allowable needs as to be an injustice, the order might be changed before a trial.
In previous blog entries the calculation and criteria in calculating the guideline amount of support is enumerated. Please click around the blog and site for more information about various family law topics. As always, feel free to call about your free initial consultation. It is our pleasure to assist.