What’s the Law for Temporary Child Support or Pendente Lite Child Support?
If you’re contemplating pursuing a divorce case, or if your spouse has recently filed a marriage dissolution proceeding, you certainly have some major questions. Included on the list is questions about temporary child support or pendente lite child support in New York divorce cases. Pendente lite child support is the type of child support that is in place while a divorce case is proceeding. There are a variety of factors that come into play in regard to temporary child support in a New York divorce case.
The New York Child Support Standards Act
Child support in the state of New York is governed by a law known as the Child Support Standards Act. The Child Support Standards Act established the presumptive amounts of child support to be utilized in cases in both the New York Supreme and the New York Family Courts. The Child Support Standards Act can be utilized in establishing temporary child support in a divorce case.
Pursuant to this law, general parameters are established for a child support order. The primary basis upon which a child support determination is made pursuant to this law, including on a temporary basis, is the income of the parents. The calculation of child support is undertaken by utilizing established guidelines. The established guidelines must be followed in a final child support order at the conclusion of a divorce case. The guidelines do not need to be used for a temporary order.
Available Financial Information and a Temporary Child Support Order
As a practical matter, financial information necessary to calculate a child support order at the beginning of a divorce case may not be fully available. Due to this limitation, a judge is granted greater discretion when it comes to establishing a temporary child support order. As mentioned a moment ago, a judge doesn’t even need to utilize the child support guidelines at this juncture.
If there is adequate financial information available during the earlier stages of a divorce case, a judge is encouraged to rely upon the guidelines. Indeed, appellate courts in New York have overturned child support orders in situations like this when the guidelines were not utilized.
Retroactive Application of Temporary Child Support Guidelines
When a temporary child support order is issued in a divorce case, the award should be and nearly always is made retroactive. In other words, when a judge issues a temporary order in a divorce case, the judge postdates that order back to the date that the divorce petition was filed. In addition, the permanent order can be postdated in this manner as well.
Temporary Child Support Agreement
Courts encourage parents to negotiate and reach agreements between themselves when it comes to issues pertaining to the children. This includes matters like child custody, visitation or parenting time, and child support.
Parents can negotiate an agreement regarding temporary child support when a divorce case commences. As is the case with the court itself, in negotiating a temporary child support order, parents have more latitude than exists in regard to a permanent order.
Even though parents make an agreement regarding a temporary child support order, the court must review the agreement. The court must approve the child support amount agreed to by the spouses.
In this process, the court will consider what in the best interests of a child. Even though parents make an agreement, that agreement must be in the best interests of the child or children at issue in the case.
Changing a Temporary Child Support Order
If a temporary child support order is issued by the court, and one parent believes it is not proper, a motion to amend or change it may not be entertained by the court. New York appellate court cases have established that the remedy in this type of situation is a speedy divorce trial.
The same holds true if the parents agreed on a temporary child support order. The one exception would be if support existed for a contention that one parent overreached when it came to negotiating a temporary child support order. In other words, if a party to the case threatened or somehow coerced the other parent to sign off on an agreed temporary child support amount.
There may be instances in which parents reach an agreement to alter an existing temporary child support order. If the agreement is to increase an existing order somewhat, the court is likely to approve that type of change. With that said, if the parents move to lower the child support obligation established in a temporary order, the court might be more reluctant to take that step, even though the parties agreed to an alteration.
Mediation is sometimes utilized when it comes to a variety of issues pertaining to children in a divorce case. There are limitations when it comes to mediation and child support.
First, there is a good amount of existing latitude when it comes to temporary child support that sometimes eliminates even the possible need for medication. Second, a mediator typically is not involved in a divorce case at the preliminary juncture of the proceedings. Finally, when it comes to a final support order, the child support guidelines dictate the parameters, leaving little room for variance.
Retain an Experienced New York Divorce Attorney
Due to the complexities associated with the vast majority of divorce cases, including temporary child support issues, you best protect your legal interests by retaining the services of a skilled New York divorce lawyer, like a member of the legal team at Spodek Law Group. You can schedule an initial consultation to learn more about the divorce and temporary child support process.
An initial consultation also permits an experienced Spodek Law Group divorce attorney the opportunity to evaluate your case more generally. Legal counsel will also provide answers to questions that you might have about temporary child custody, as well as other elements of your marriage dissolution proceedings. Spodek Law Group charges not attorney fee for an initial consultation with a member of the firm’s legal team