Can I Get Temporary Maintenance While the Divorce is Pending?

Can I Get Temporary Maintenance While the Divorce is Pending?

You have just been served with divorce papers.  You’re world is crumbling down around you.  You have been a stay-at-home parent for years and now you are staring down the likelihood of trying to reenter an unforgiving job market. You feel like someone has just struck a match to your entire world.  How will you be able to support yourself and the children?

We have previously discussed maintenance but we have never really delved into temporary maintenance.  Temporary maintenance is just that, maintenance that is temporarily ordered to be paid while the divorce is pending.  Temporary maintenance is awarded in situations where there is a need by one party and the other party has the ability to pay.

A request for temporary maintenance begins with filing a motion with the court requesting temporary maintenance.  This motion must be accompanied by your last three pay stubs or income information if you are self-employed.  Obviously, if you are unemployed, you can skip this step.  The motion must also include an affidavit detailing your monthly expenses and income and, finally, information about the income of the party from whom maintenance is sought.  This financial affidavit is vital to your success.  Estimating your monthly expenses too low will have you struggling by the end of the month.  If you estimate too high, you will lose credibility with the court.  It is imperative that you work closely with your attorney to develop this affidavit as accurately as possible.  The motion itself, is an opportunity for you to lay out to the court the factual basis for any special relief that you may also be seeking such as service on the marital debt.

Unlike post-judgment maintenance in which the court has to take into consideration the division of marital property and debt before making the determination, the court primarily looks to each party’s income, living arrangements in making a temporary maintenance decision.  The length of the marriage and lifestyle the parties enjoyed during the marriage also come into play.  The fact that a stay-at-home mother can temporary live with family while the divorce is pending may not be persuasive on a judge.  There is an old case in Kentucky in which the Court of Appeals said that a wife should not be reduced to the standing of a “scullery maid” simply because she is getting divorced.

Some things to keep in mind in dealing with temporary maintenance.  The first is that temporary maintenance is not appealable in Kentucky because it is not part of a final order.  Likewise, just because it is ordered (or denied) at a temporary hearing does not necessarily mean that the court will not change its mind at the final hearing.  Therefore, you can either strengthen your case or destroy it in the interim between the temporary hearing and the final hearing.  Finally, the court has broad discretion in whether to award temporary maintenance and whether to continue it as part of the final judgment.

Photo courtesy of torbakhopper

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