Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending litigation. Typically, one asks for exclusive use and occupancy of the marital home, temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers.
Domestic Relations Law §236(B)(5-a) sets forth formulas in which the Court determines the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why it deemed such deviation necessary. What the statute does not address is what temporary maintenance is to cover and since the statute is vague and ambiguous, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.
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