The most filed Motion or Order to Show Cause in a divorce matter is one for pendente lite or “temporary” relief.
A “Motion” is a written request containing a Notice of Motion (this lets the other party know you are filing a motion), an Affidavit (your sworn statement of the facts and allegations), an Attorney Affirmation (detailing the legal reasoning behind your request) and exhibits (any documents supporting your claim) by one party that the Court issue an order resolving some preliminary or procedural issue in the case other than the actual divorce.
An “Order to Show Cause” is similar to a motion. However, an Order to Show Cause asks the Court to set an expedited date for the parties to appear in Court and for the opposing party to “show cause” as to why the relief sought in the Order to Show Cause should not be granted.
The relief sought therein can include, but is not limited to: attorney fees; child custody; child support; spousal support; exclusive use and occupancy of the marital residence; expert fees (i.e forensic accountant; lifestyle analyst), exclusive use of an automobile; maintenance of the status quo as regards payment of the carrying charges on the marital residence; maintenance of any school tuition for the children or spouse.
Attorney and Expert Fees
In 2010, the New York State legislature passed a law making it easier for the “non-monied” spouse to seek attorney fees from the “monied” spouse. The public policy behind such law was stated succinctly by Helene E. Weinstein, Chair of the Assembly Judiciary Committee:
[T]his measure creates a statutory presumption of counsel fees to the less-monied spouse to ensure adequate representation of the less-monied spouse from the commencement of the proceeding, leaving it up to the affected parties to show why, in the interests of justice, the order should not be made.
Given the frequency of a financial imbalance between parties to matrimonial proceedings, an order for intermit counsel fees in these proceedings granted to the less-monied spouse at the outset of a case is a vital step in preventing an imbalance in the parties’ resources from affecting the proceeding’s outcome.
While you may occasionally run into a judge that feels that the only way for a case to settle and get out of his or her courtroom faster is to deny attorney fees and/or expert fees, most judges apply the law as written and award fees to the non-monied spouse. Of course, this is not to say that your spouse will not oppose this. However, unless your spouse can prove that the interests of justice require that your spouse not be awarded fees, the playing field will become level upon an application and grant of attorney fees from the Court.
Temporary Spousal Support
In 2010, the Legislature created a temporary spousal support calculator, which can be found here. Although the amount calculated is presumed correct, most Courts have interpreted the statute such that if the spouses are still living together and one spouse is paying all the carrying charges, spousal support pendente lite may be refused on the condition that such spouse continue to pay such expenses. This issue is a constant back-and-forth between the attorneys and the Court. The spouse seeking temporary maintenance will always seek to gain the most benefit for their client while the spouse that would be ordered to pay such temporary maintenance will argue that any such presumptive award should be reduced based upon a list of statutory factors similar to final maintenance factors. This creates much of the drama and litigation that occurs during the early stages of any divorce action. Of course, the parties can always agree on a set number, but, that all depends on the contentious nature of the divorce.
Temporary Child Support
Under New York Law, temporary child support is authorized under the Equitable Distribution Law. Temporary child support may be granted without a showing of immediate or emergency need and even though the parties continue to reside in the same household.
The support percentages may be used in determining support. However, as a full financial picture is normally not yet available to the Court when an application for temporary child support is made, use of the percentages is not mandatory. If the Court finds that sufficient information is available to use the percentages, the Court is free to do so.
Temporary Exclusive Use and Occupancy of the Marital Residence
If you have read thus far and ventured a guess that the determination of whether one spouse will be granted temporary exclusive use and occupancy of the marital residence is based upon a number of factors, give yourself a gold star. When one spouse seeks to basically evict the other spouse from the marital residence during the litigation of their divorce, the Court looks very closely at the following factors:
1. The financial difficulty inherent in not realizing proceeds from an immediate sale of the property;
2. The cost of maintaining the premises and the ability of the applicant spouse to do so;
3. The availability of suitable alternative housing;
4. The need of the spouse sought to be excluded to utilize the residence, such as for business purposes;
5. The personal safety of the parties;
6. The temporary custody of the parties’ children.
Of course, if one of the parties has already established another residence, and that party’s return to the marital residence during the pendency of the divorce action would cause marital strife, the case for temporary exclusive use and occupancy becomes very strong. Should one party have obtained an Order of Protection against the other, their case for exclusive use and occupancy becomes that much stronger. The Court will take all of the above factors into consideration when one spouse seeks exclusive use and occupancy of the marital residence. After all, allowing one party to exclude the other gives that party a tactical advantage over the other, especially when the Court orders the ousted party to continue paying the carrying charges thereon. Your attorney must zealously advocate on your behalf, whichever side you are on, as exclusive use and occupancy is a seminal issue in divorce litigation.
Ultimately, your application for pendente lite relief in your divorce matter is only limited by the facts of your case. It is best to present as many issue to the Court in your pendente lite application as you can. In addition to seeking temporary relief, it also serves to bring to light the issues, from your point of view, that the Court should prioritize throughout the litigation.