Divorce Litigation Takes Forever… When Does Support Start?

Divorce Litigation Takes Forever… When Does Support Start?

Given how long divorce litigation takes, when can a person reasonably expect support payments to begin?

Once a client makes a motion for support (that is, asks the court to make an order for support), it takes some time for the process to conclude. It starts with motion papers being submitted to the court. Then a judge is assigned.  Thereafter, the judge reviews the papers and gives a date by which papers must be served by the parties, and also sets a return date for the motion (that is, the date that the parties must appear before the court to argue the motion).

Between the service date and the return date, the party being served often gets a chance to submit reply papers (which express their point of view on the issue).  After the reply papers comes a chance for the moving party to submit an opposition to the reply.  With us so far?

Good. Now let’s turn to the attorneys, because they may add to the delay, too. During the motion process the attorneys for one side or the other (or both) may be engaged on another matter and may ask for an adjournment of time to submit papers.  Generally, with consent of the court, attorneys will give each other the professional courtesy of additional time to submit papers.

Finally, the attorneys and clients appear in court on the return date, however delayed, to argue the motion.  The judge often issues an order on the spot, but he or she instead may notify the parties of the court’s decision at some later date. Like attorneys, judges too may have to deal with other matters.

With all the time passing from the start of the motion papers through the time that the court finally imposes an order, it’s not unusual for clients to worry about the lack of support received during the lengthy motion process.

Does a party have to wait all that time for support to start? Pursuant to Domestic Relations Law Section 236 [B][7][a], temporary child support payments are retroactive to the date of service of the first application.  So, the date that the papers are given to the payor party is the date that the support begins. For example, if you serve your papers on May 15th and the (return) court date is June 30th and the court order is received on July 3rd, the payments are due effective May 15th.  All arrears  that have accumulated (payments due between May 15 and July 3) will be paid immediately, with the monthly (or weekly as applicable) payment to begin following the payment of arrears. (Note though, that in the above realistic example, actual payment is not ordered until close to two months after support is sought, so the party requesting support would have to deal with a period of time without support payments flowing in.)

Also note that courts are likely to reimburse the non-monied spouse for reasonable legal fees required in pursuing litigation.  Litigants often fear the court process, especially newly divorced individuals who were not employed throughout the marriage.   These litigants often fear the court process, the fees involved and the fairness of the awards.  However, our experience suggests that New York courts are fair and reasonable so long as the award sought is within the boundaries of the law, and reasonable in terms of the marital assets and standard of living obtained throughout the marriage.

It is a good idea to seek legal advice from multiple attorneys prior to heading into litigation.  At Keil & Siegel LLP we talk with you, prior to commencing litigation, about the legal fees required to litigate a divorce, the potential support to be received, and the time, delay and stress involved during the process.

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