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 any pendente lite maintenance, or other interim awards, is preserved as a part of a final decision.