Pendente Lite Motions And Available Relief

A divorce case could easily last for a year or, occasionally, much longer. Therefore, it is common for the parties to seek various forms of relief from the court while the action is pending.  This type of relief is commonly referred to as pendente lite and is usually obtained by making a motion, brought by an order to show cause.  Such motion is usually supported by affidavits, exhibits, and statements of net worth. A pendente lite motion may seek such things as temporary custody of children, temporary schedule of visitation with the minor children, temporary child support, temporary maintenance, exclusive possession of the marital residence, temporary order of protection, interim award of attorneys fees, interim award of expert fees, and an order restraining marital assets.  Since pendente lite motions are made on expedited basis, not all facts may be known at the time the motion is brought.  Once the relief sought in the pendente lite is granted, the court’s decision is unlikely to be reversed on appeal since numerous cases have held that the proper remedy for objections to a pendente lite order is a plenary trial.  As the court stated in Penavic v. Penavic, 60 A.D.3d 1026 (2nd Dept. 2009), “[t]he best remedy for any perceived inequities in the pendente lite award is a speedy trial, at which the disputed issues concerning the parties’ financial capacity and circumstances can be fully explored.” After the final decision is made, the trial court has the power to adjust the pendente lite relief.

The most significant form of pendente lite relief in many cases is temporary maintenance.  As the court stated in Mueller v. Mueller, 61 A.D.3d 652 (2nd Dept. 2009), “pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse . . . with due regard for the  preservation standard of living”. It is the burden of the party seeking pendente lite relief to demonstrate the need for the award sought. The standard of living previously enjoyed by the parties is a relevant consideration in assessing the reasonable needs of a temporary maintenance applicant.

One critical issue that can be addressed by a pendente lite motion is preservation of marital assets. Pursuant to Domestic Relations Law § 234, a court has broad discretion in matrimonial actions to issue injunctive relief in the interest of justice to preserve marital assets pending equitable distribution. Place v. Seamon, 59 A.D.3d 913 (3rd Dept. 2009). Such request for restraints on property transfers can be granted upon the movant demonstrating that the spouse to be enjoined “is attempting or threatening to dispose of marital assets so as to adversely affect the movant’s ultimate rights in equitable distribution”.

Pendente lite financial relief is usually retroactive to the date of filing of the motion.

For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. The courts do not lightly infringe upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage.

Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. The party seeking such relief must present detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince the court that the application is not an effort to force the other party out of the house. Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court may order that a hearing be held to resolve the conflicting versions of the facts. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted. As I have written before, such relief can also be obtained from the Family Court on expedited basis and, occasionally, on ex parte basis,  if the safety of a party is at issue.

A pendente lite motion which requests either child support, maintenance or attorneys fees, must include a statement of net worth as an exhibit, even if the statement of net worth has been filed separately.

One form of relief that is typically not available as a part of a pendente lite application, is the order directing the sale of the marital residence. Such relief can only be obtained after trial.

If a party decides to violate the pendente lite order, the proper application is contempt. Shammah v. Shammah, 22 Misc.3d 822 (Sup. Ct. Nassau Co. 2008).

Usually, a pendente lite motion sets up the parties’ positions with respect to critical issues in their divorce case.  If a lawyer is successful in obtaining the relief sought, his/her client’s position going forward will better and the client’s negotiating posture may improve significantly.  Most  divorce attorneys recognize this and are careful in making pendente lite motions.

Overpayment of Pendente Lite Maintenance and Equitable Distribution

I have previously written that the Supreme Court has wide latitude in fashioning pendente lite (interim) maintenance awards while the divorce action is pending.  But what happens if the trial court ultimately decides that the pendente lite maintenance award was excessive?  The Court of Appeals recently addressed this issues in Johnson v. Chapin, 2009N.Y.  Slip. Op. 03630 (2009).

In Johnson, the Court of Appeals held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the court may make an appropriate adjustment in the equitable distribution award.  Thus, the Court of Appeals held that the trial court did not abuse its discretion in giving husband a credit representing the amount of the pendente lite maintenance he paid that exceeded what he was required to pay under the final maintenance award.  In determining the temporary maintenance award, Supreme Court imputed an average salary in excess of $2 million to husband. However, at trial, it was established that his income was significantly lower. Given the disparity in the maintenance amounts, under the circumstances of this case, it was appropriate for the husband to receive a credit for excessive maintenance paid.

This decision is significant since it reaffirms the principle that pendente lite awards are temporary and are subject to adjustment.  An experienced divorce lawyer will not rest after obtaining a favorable pendente lite relief for the client, but will continue to work to make sure that the any pendente lite maintenance, or other interim award, is preserved as a part of a final decision.

Divorce and Other Family Law Proceedings and Attorneys Fees Award

Attorneys fees awards are often at issue in divorce cases. Such awards are in the court’s discretion. Their primary purpose to allow a non-asset spouse to prosecute on or defend the divorce action, so that the parties are litigating on an equal footing so that one spouse does not have a greater economic leverage than the other spouse.

The Domestic Relations Law (“DRL”) recognizes those economic realities in divorce litigation and allows for award of attorneys fees, either on interim basis while the action is still pending, or after the action has been concluded. Counsel fee awards are not authorized by any provision of the DRL in actions or proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

DRL §237(a) provides that

in any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, (2) for a separation, (3) for a divorce, (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and who did not appear therein where such spouse assert the nullity of such foreign judgment, or (5) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse … to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on and defend the action or proceeding as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

Where an action for annulment is maintained after the death of a spouse, DRL §237 (a) authorizes the court to direct the person or persons maintaining the action to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to defend the action.

“Expenses” is defined in DRL §237(d) and includes, but is not limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses as the court may determine to be necessary to enable a spouse to carry on or defend one of the actions or proceedings designated in §237(a).

DRL §237(b) provides that,

upon any application to annul or modify an order or judgment for alimony or for custody, visitation or maintenance of a child, made (as prescribed in §§236 or 240) or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding for the other spouse or parent as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

DRL §238 states:

In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or in any proceeding pursuant to (§§243, 244, 245 or 246), the court may, in its discretion, require either party to pay the expenses of the other in bringing, carrying on or defending such action or proceeding.

The Domestic Relations Law also provides that, in a proceeding to obtain an order of protection or to enforce such an order, the Court may require any party to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing that order. Such fees may be awarded only in favor of the person obtaining the order or seeking to enforce it.

Counsel fees and expenses may also be obtained by a person seeking to enforce a custody decree of another state under several sections of the Uniform Child Custody Jurisdiction Act and in proceedings to hold a person in contempt of court for failure to obey a non-monetary order, under certain circumstances.

Domestic Relations Law §237(c) provides for a mandatory award of counsel fees in certain enforcement proceedings. The statute provides that in any action or proceeding for failure to obey any lawful order compelling payment of support, maintenance, or distributive award, the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the petitioner’s attorney.

The Court of Appeals in DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879 (1987) noted that DRL §237 allows for flexibility. Lack of funds is not a prerequisite to an award of counsel fees. Rather, in exercising its discretionary power to award counsel fees, a court must review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.

The court determined that an award of fees for the time spent by counsel in making the counsel fee application, and in related proceedings, comports with the purpose of the statute and should therefore be encompassed within its scope. It stated that if the time spent in applying for fees was not included in the award, the purpose of the statute could be frustrated by the more economically advantaged spouse engaging in protracted proceedings on the fee application and thereby increasing the cost of obtaining counsel fees for the less affluent spouse.

In O’Shea v. O’Shea, 93 N.Y.2d 187 (1999) the Court of Appeals clarified issues related to award of attorneys fees. It concluded that courts have the discretion, in appropriate cases, to grant such awards, based upon criteria that include the circumstances of the parties and the reasonableness of their positions. The Court of Appeals also held that courts have the discretion to grant counsel fees to the wife for legal services rendered in connection with the hearing to determine the fee award.

Subsequently, in Frankel v. Frankel, 2 N.Y.3d 601 (2004), the Court of Appeals recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds,” and that “more frequent interim counsel fee awards would prevent accumulation of bills”. Quoting from the 1993 report of the Committee to Examine Lawyer Conduct in Matrimonial Actions, the Court noted that “[t]he practice of many judges to defer [pendente lite counsel fee applications] to the trial court essentially delays the awarding of fees until the final settlement or judgment, and often compromises the non-monied spouse’s ability to adequately litigate the case'”.

In Prichep v. Prichep, 52 A.D.3d 61 (2nd Dept. 2008), the Second Department held that because such awards relate directly to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. Its conclusion relied on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted.

The facts in Prichep were as follows. The divorce action was started by the husband in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. Her motion stated that, although the court previously had granted her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was earning $420,100 per year, while she worked part-time, earning $4,015 per year. In opposing the motion, the husband argued that the wife had engaged in unnecessary litigation, and incurring excessive counsel fees. Supreme Court denied the wife’s motion without prejudice to a renewal at a later date. Subsequently, the wife moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm’s request to the extent of relieving it as counsel for the wife. The wife appealed the denial of interim attorneys fees award. The Appellate Division held that an award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate ‘to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation’ “(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O’Shea v. O’Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, “a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis”. The Appellate Division reversed the lower court’s decision and awarded the fees sought.

As important as the attorneys fees are during the pendency of the divorce action, they are just as important at the end of the action. When the final application for attorney fees is made, the court must consider the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the necessity for the services; (4) the nature of the issues involved; (5) the professional standing of counsel, including background and experience; (6) the results achieved; (7) the financial circumstances of the spouses; and (8) a spouses’ obstructionist tactics. It is also appropriate for the court to consider each spouse’s settlement demands and negotiation position in determining the appropriateness of a counsel fee application. A party can obtain both interim and final attorneys fees awards in a single divorce action.