Temporary Orders During a New York Divorce

A contested divorce in New York often takes a year or more from filing to judgment. Bills come due long before then. Children need a schedule now, not eighteen months from now. A spouse who left the workforce to raise children cannot wait until trial to pay rent. New York law answers this problem with temporary orders, which lawyers and judges call pendente lite relief, meaning relief "pending the litigation."

Temporary orders can require one spouse to pay maintenance and child support, set an interim parenting schedule, award one spouse exclusive use of the marital home, and direct the wealthier spouse to fund the other's attorney. Because these orders govern daily life for the entire case, and because they often shape the final outcome, the pendente lite motion is frequently the most consequential filing in the divorce.

What a Temporary Order Can Cover

The Supreme Court, which hears divorce actions in New York, has authority to grant interim relief on nearly every issue that will eventually be decided at trial or by settlement. Common forms of temporary relief include:

• Temporary spousal maintenance under Domestic Relations Law § 236(B)(5-a), calculated by a statutory formula.
• Temporary child support under the Child Support Standards Act, DRL § 240(1-b), including add-ons for childcare, health insurance, and unreimbursed medical expenses.
• Temporary custody and parenting time under DRL § 240, decided on the child's best interests.
• Exclusive occupancy of the marital residence under DRL § 234.
• Interim counsel and expert fees under DRL § 237.
• Temporary orders of protection under DRL § 240(3) where there are allegations of abuse or harassment.
• Restraints on property, such as orders freezing an account or barring the sale of real property beyond the automatic orders described below.

The Automatic Orders That Take Effect at Filing

Before anyone makes a motion, a set of automatic restraints already applies. DRL § 236(B)(2)(b) and court rule 22 NYCRR § 202.16-a require that a notice of automatic orders be served with the summons in every divorce action. The orders bind the plaintiff the moment the summons is filed and bind the defendant the moment the summons is served. They prohibit both spouses from:

1. Selling, transferring, hiding, or encumbering any property (real property, business interests, accounts, vehicles) except in the ordinary course of business, for customary household expenses, or for reasonable attorney's fees in the action.
2. Withdrawing from or borrowing against retirement accounts, 401(k)s, IRAs, or pensions, except for the purposes above.
3. Incurring unreasonable debt, including new borrowing against the home or running up credit cards beyond ordinary living expenses.
4. Removing the other spouse or the children from existing medical, dental, hospital, or prescription insurance.
5. Changing beneficiaries on life insurance or letting existing life, auto, homeowners, or renters policies lapse.

Violating the automatic orders can be punished as contempt of court, and judges routinely unwind transfers made in violation of them. If your spouse drained an account the week after being served, that is a matter to raise by motion immediately.

Temporary Spousal Maintenance: The Statutory Formula

Temporary maintenance is governed by DRL § 236(B)(5-a), which sets a presumptive award based on a two-part calculation applied to each spouse's income up to a statutory cap. The cap on the payor's income is currently $228,000 and is adjusted every two years. The court runs two calculations and awards the lower result.

Where the maintenance payor is not also paying child support:

Where the payor is also the non-custodial parent paying child support, Calculation A changes to 20% of the payor's income minus 25% of the payee's income, which produces a lower maintenance figure to leave room for child support.

A Worked Example

Suppose the payor earns $150,000 and the payee earns $50,000, with no child support in play. Calculation A: 30% of $150,000 is $45,000, minus 20% of $50,000, which is $10,000, yielding $35,000. Calculation B: 40% of the combined $200,000 is $80,000, minus the payee's $50,000, yielding $30,000. The presumptive award is the lower figure, $30,000 per year, or $2,500 per month.

Now assume the same incomes but the payor is also paying child support. Calculation A becomes 20% of $150,000 ($30,000) minus 25% of $50,000 ($12,500), yielding $17,500, or about $1,458 per month, again subject to the lower-of-two-calculations rule.

The court may deviate from the presumptive amount if it finds the result unjust or inappropriate under the factors in DRL § 236(B)(5-a)(h), and it has discretion over income above the cap. These awards matter most for spouses with little or no independent income; our page on divorce for stay-at-home spouses in New York covers that situation in depth. Keep in mind that for divorces after 2018, maintenance is not deductible on federal returns, though New York treats it differently, a point explained on our page about the tax implications of a New York divorce.

Temporary Child Support

Temporary child support follows the Child Support Standards Act, DRL § 240(1-b). The court determines each parent's income, subtracts FICA taxes and any maintenance actually paid, combines the parental income up to the statutory cap (currently $183,000, also adjusted every two years), and applies the statutory percentage:

• 17% for one child
• 25% for two children
• 29% for three children
• 31% for four children
• At least 35% for five or more children

The non-custodial parent pays their pro rata share of that figure. So if combined parental income is $160,000, there are two children, and the non-custodial parent earns 70% of the combined income, the basic obligation is $40,000 per year and the non-custodial parent's share is $28,000, or roughly $2,333 per month. On top of the basic obligation, the court allocates add-on expenses pro rata: work-related childcare, health insurance premiums for the children, and unreimbursed medical costs.

Both temporary maintenance and temporary child support are retroactive to the date the request was filed. If you file a motion in March and the judge decides it in July, the order runs from March, and the payor owes arrears for the intervening months. This is one reason to file early rather than waiting to see whether informal arrangements hold.

Temporary Custody and Parenting Time

Interim custody is decided under DRL § 240 based on the best interests of the child. Judges deciding temporary custody on motion papers, without a trial, tend to preserve the status quo unless the current arrangement presents a risk to the child. That gives the existing arrangement enormous practical weight. A parent who moves out and accepts alternate weekends "just for now" may find that schedule hardened into the presumed baseline by the time of trial.

Courts can also appoint an attorney for the children and order a forensic custody evaluation at the temporary stage, and they can issue a temporary order of protection where safety is at issue. If abuse or harassment is part of your case, read our page on orders of protection in a New York divorce, because a temporary order of protection can be obtained the same day the papers are presented.

Exclusive Occupancy of the Marital Home

Under DRL § 234, the court may award one spouse exclusive use and possession of the marital residence during the case, regardless of whose name is on the deed or lease. Judges generally grant exclusive occupancy in two situations: where the other spouse has voluntarily established an alternative residence and returning would cause domestic strife, or where the spouse's presence in the home endangers the safety of the other spouse or the children. An award of exclusive occupancy does not decide who keeps the house in equitable distribution; it only governs who lives there while the case is pending.

Interim Counsel and Expert Fees

New York does not want the wealthier spouse to win by attrition. DRL § 237(a) creates a rebuttable presumption that the less-monied spouse is entitled to an award of counsel fees during the case. Courts also award interim fees for necessary experts, such as business appraisers, real estate appraisers, and forensic accountants, under DRL § 237. A pendente lite motion for a non-working spouse will typically pair a maintenance request with a request for interim counsel fees, supported by the retainer agreement and billing records, which the court rules require you to attach.

How You Ask for Temporary Relief: Procedure and Deadlines

Temporary relief is requested by motion. There are two vehicles.

Motion on Notice

A standard motion under CPLR 2214(b) must be served at least 8 days before the return date, and answering papers are due 2 days before the return date. If the moving party serves 16 days before the return date and demands answering papers, the opposition is due 7 days before the return date. Example: a motion made returnable on June 20 must be served by June 12 under the 8-day rule; if served on June 4 with a demand for answering papers, the opposition is due June 13.

Order to Show Cause

Where the matter is urgent, such as a spouse cutting off support, an imminent transfer of assets, or a safety issue, counsel presents an order to show cause. The judge signs it, sets the return date and the service deadlines, and may grant a temporary restraining order that takes effect immediately, before the other side is even heard on the merits. Most pendente lite motions in divorce actions are brought this way when the need is pressing.

The Statement of Net Worth Requirement

Court rule 22 NYCRR § 202.16(k) imposes strict paper requirements on any motion for temporary maintenance, child support, or counsel fees. The motion must include a sworn statement of net worth in the official form, the movant's most recent W-2 or tax return and current pay stubs, and, for fee applications, the retainer agreement. A motion that omits the statement of net worth may be denied or held without prejudice until the papers are complete. The same rule requires both parties to exchange statements of net worth no later than 10 days before the preliminary conference, which under 22 NYCRR § 202.16(d) must be held within 45 days after the case is assigned to a judge.

In practice, most pendente lite support motions are decided on the papers, without live testimony. That makes the quality of the motion papers decisive: accurate income documentation, a credible budget, and a clear account of the marital lifestyle usually matter more than oral argument.

Living Under a Temporary Order: Enforcement, Modification, and Appeal

A temporary order is a court order with full force. If the payor stops paying, remedies include a money judgment for arrears under DRL § 244, an income deduction order taking support directly from wages, and contempt under DRL § 245, which can carry fines and incarceration.

Changing a temporary order is harder than obtaining one. New York appellate courts have said repeatedly that the remedy for a claimed inequity in a pendente lite award is a speedy trial, not endless motion practice. Appeals from temporary orders are permitted but rarely practical, since the appeal often takes as long as the divorce itself. The realistic lesson: get the first motion right, because you will likely live with the result until judgment. Any perceived imbalance can be corrected at trial, where the court can credit overpayments or account for shortfalls in the final award.

Do You Always Need a Motion?

No. Many couples resolve interim issues by written stipulation, which the court can "so order," giving it the same enforceability as a decision after motion practice. Interim agreements on support, the parenting schedule, and who pays which household bills are a standard early product of negotiation, and of divorce mediation in New York. A negotiated interim arrangement is usually faster and cheaper than a contested motion, and it avoids handing the judge an early impression of either spouse as unreasonable. Motion practice is the tool for cases where a spouse refuses to pay, controls all the money, or is using access to the children as leverage in negotiations.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].