By Jon Bonavilla
The early stages of a divorce is often a troubling time for a husband or wife. A major concern that immediately arises is financial. Often times the parties are no longer living under the same roof. The payment of bills, groceries, mortgage payments, and other daily living expenses is a worrisome issue, particularly when there are children to provide for as well.
While early negotiations with your spouse and his or her attorney can be helpful, often times it is not fruitful, particularly in the early stages of a divorce. Nevertheless, there are options to consider with your attorney. One of the most beneficial options is an initial application/motion to the Court seeking financial relief. There are several things a spouse may be entitled to early on in a divorce, specifically: temporary child support, temporary spousal support, and interim counsel fees.
Temporary Child Support
If the children are primarily residing with one parent over the other, then the primary resident parent may be entitled to child support from the other parent. This support is for food, shelter, and clothing for the children.
Pursuant to New York Family Court Act sec. 413(1)(a), the parents of a child under the age of twenty-one years are chargeable with the support of such child, and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.
Pursuant to New York Domestic Relations Law sec. 240(1-b), temporary child support should be awarded in accordance with the Child Support Standards Act.
Upon application by your attorney, the Court has the power to order your spouse to pay temporary child support while the divorce is pending. The amount of the child support will be based on the parties’ respective incomes and the number of children.
Temporary Spousal Support
If the parties are under separate roofs, it is often the case that household of the more monied spouse may be at a higher standard of living than that of the less monied spouse. Depending on the length of the marriage, and whether there is enough of a discrepancy in incomes between the parties, a less monied spouse may be entitled to temporary spousal support (also referred to as maintenance) from the more monied spouse while the divorce is pending.
The Court, upon application by a party, can make its award for temporary maintenance pursuant to the subdivisions listed in New York Domestic Relations Law sec. 236(B)(5-a) taking into consideration the income of each party as an individual and the length of the marriage.
If the Court does award temporary spousal support, this will be an additional amount of support provided to a spouse that is separate from child support.
Interim Counsel Fees
Understandably, an early concern for both parties is counsel fees, particularly for the less monied spouse because he or she may not have the financial resources available to pay counsel. However, upon application to the Court, the award of interim counsel fees (counsel fees awarded during the divorce) is available.
Pursuant to New York Domestic Relations Law sec. 237, the Court may direct one party “to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse in order to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties”. Further, “there shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse” and, the application “may be made at any time or times prior to final judgment”.
Interim counsel fees may be awarded without a full evidentiary hearing. See Lang v. Lang, 72 AD3d 1255 (3rd Dept. 2010). Most importantly, a spouse need not have exhausted all of his or her resources before counsel fees can be awarded. See Schafer v. Schaffer, 224 AD2d 1024 (4th Dept. 1996).
While interim counsel fees are not awarded in every case, depending on the financial circumstances of the parties, it is an option to be considered with your attorney. Even if the Court does not grant counsel fees immediately, it may sometimes reserve decision on this issue until later in the divorce.
It is important to discuss these financial issues with your attorney early on in the proceedings. The sooner financial support is addressed, and each party knows what they are entitled to and what they are responsible for, the more peace of mind they will have as the divorce goes forth.