10 Oct 17

Can I get temporary support while we’re separated?

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It’s common for a spouse to worry about finances when they consider divorce. Perhaps you want to get divorced, but you’re worried about how you’ll support yourself and your children. Maybe the other spouse has threatened you that you’ll be left destitute if you file for divorce. You may wonder what New York law has to say about support to help you survive while your divorce case is pending in the courts.

A divorce can take time

A divorce doesn’t happen overnight. In New York, the parties have time to build their case and file discovery requests. It takes the court time to schedule hearings and trials in your case. Even when you’re able to reach a non-trial resolution in your case, it still takes some time to draft a final judgment of divorce and finalize the paperwork. That might mean that one of the spouses has a very real need for support while the divorce is pending.

Yes, you can get temporary support

The short answer is yes, you can get temporary support while the divorce pends in the court. You can get support for yourself. You can also get support for minor children. Temporary support during a separation is called temporary maintenance.

To calculate support, you can use a worksheet. It asks for information about the parties including your income. It’s important to read carefully, because the court looks at income from all sources including investment income and annuity payments. There are deductions for self-employment as well as for child support paid to children who are not part of the current divorce case. Even though the court uses a formula to determine a temporary maintenance award, the court still has the discretion to override the formula amount. If there’s a reason that the calculated amount may not be appropriate in your case, you’ll need to build the evidence, present it to the court and ask them to make a different decision.

How long does it last?

A temporary maintenance order is temporary. It ends when the final judgment of divorce goes into place. The court may not order post-divorce support even if they order temporary maintenance. They are two separate questions.

In addition, child support is different than spousal maintenance. If you have children, they have a right to support until they reach the age of majority. That is automatic, and it’s determined by formula. The court can’t say no. An order for child support doesn’t necessarily mean you’ll also get or pay spousal maintenance. They are two different questions.

What if the other side doesn’t respond?

The higher-earning spouse might try to avoid paying a temporary support award by refusing to respond to questions about their income. Refusing to participate in the process won’t stop the court from entering an order. If the paying spouse doesn’t provide income information, the court can base the spousal maintenance award on the lifestyle that the parties enjoyed during the marriage. The court can also determine the award based on the needs of the recipient. The court can change an award of temporary maintenance if the court later gets more information or determines that a party presented incomplete information about their income.

How to get temporary maintenance?

To get temporary maintenance, you need to begin a case. It isn’t enough to be separated until you file court paperwork. That makes it critical to work with a lawyer as soon as possible in order to file your paperwork and make your request for maintenance. Once your case is filed, the court orders both parties to prepare a statement of their net worth. This is a detailed statement that asks all of the relevant questions about income and expenses so that the court can determine the appropriate temporary maintenance amounts. If you’re considering a divorce, it’s important to work with an attorney to understand the possible outcomes for temporary and post-divorce maintenance.

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