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Spousal MaintenanceMaintenance May Be Ordered Retroactive to the Commencement of the Divorce

November 13, 2007

A divorce could easily stretch out for a year or more. For this reason, it is not uncommon for a spouse, dependent on the other, to make a motion for temporary maintenance (alimony or spousal support in New York) to be paid during the divorce.

Sometimes, for either strategic or economic reasons, no motion is made for temporary support. However, the failure to make the motion for pendente lite maintenance does not necessarily result in a windfall to the economically advantaged spouse. To the contrary, after trial, the advantaged spouse could be found to be arrears in maintenance and owe the other spouse a large sum of money.

As pointed out by the Appellate Division, First Division in King v. Geovanis:

"A final order of maintenance or child support shall be effective as of the date of the application therefor (Domestic Relations Law § 236[B][6][a]; [7][a])’" (Burns v Burns, 84 NY2d 369, 377 [1994]). The service of a summons with notice containing a request for maintenance or child support constitutes an application therefor (id.). Thus, since plaintiff requested maintenance and child support in her summons with notice, the filing of which commenced this action on May 14, 2003, the child support and maintenance awards should have been made retroactive to May 14, 2003.

In King v. Geovanis, maintenance was awarded retroactive to the commencement to the action for divorce, three years earlier.

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