E.A, Plaintiff, v. J.A, Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 010) 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 771, 772, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 814, 815, 816 were read on this motion to/for RENEWAL.

Upon the foregoing documents, it is

In this motion, plaintiff seeks renewal of this Court's November 22, 2023, order terminating temporary maintenance, relying on Foster v Foster (248 AD3D 410 [1st Dept 2026]). Defendant opposes the motion.

On August 18, 2022, this jurist, while then presiding over this matrimonial action, issued a decision granting pendente lite support. Specifically, the Court ordered defendant to pay $24,000 in monthly unallocated child support and temporary maintenance, as well as various other add-ons. The award was made retroactive to April 25, 2022, the date of the application.

In September 2023, in a cross motion under motion sequence 6, defendant moved to terminate the temporary award of maintenance. Defendant argued that the Court had discretion to do so and stressed the duration of the marriage was only 58 months, and he had already paid the temporary maintenance for 18 months. Referencing the guidelines applicable to post-divorce maintenance, he noted that duration for such post-divorce maintenance would be 18 months.

Plaintiff opposed, noting that the post-divorce durational guidance had no bearing on awards of temporary maintenance.

Following a full argument on the record, the Court remarked:

I appreciate everyone's positions here. I do understand them. I do think that the bottom line legally is that the Court absolutely has the discretion to consider a request to terminate maintenance after a significant amount of time has passed. It cannot be that the Court can't choose to consider that. You're right, the Court could choose not to and say, "Speedy trial and you've got to wait." That's true, the Court has the discretion to do that as well, just like it has the discretion to do everything you described, go past guidelines or less than the guidelines, yes. But, the bottom line is the Court has discretion to do what it thinks is appropriate on these things.

I do understand all the other dynamics, I have thought about them a lot, I've written about it in the decision. Certainly there's a lot more to look into on the assets. And, I don't know. I really don't know. And maybe you all don't know either. And you need more -- as I heard, you may need more information. But, in terms of spousal support, there are guidelines for a reason. This is a very short marriage. It may not be in the decision, but I know I spoke to the parties about this at various appearances in the past, that it would not last forever. I do believe it is appropriate at this time to end spousal support. I do not, however, simply accept Ms.Petitti's number to be used for child support. Again, that's why I asked my questions. And I do believe a lot of the expenses were intertwined and it's a little unclear, so it's not - it's not as simple. So, I believe, given the uncertainty about the expenses as described in the prior decision, it would be more appropriate to direct payment of $16,000 a month in interim child support (see November 22, 2023 transcript [NYSCEF DOC 758 pg 41-42]).

On November 22, 2023, the Court issued its order terminating temporary maintenance effective immediately.

Pursuant to CPLR § 2221(e)(2), "[a] motion for leave to renew: shall demonstrate that there has been a change in the law that would change the prior determination "

In Foster, supra, issued this April 2026, the First Department reversed an order which had granted the husband's motion to terminate pendente lite spousal support order. In so doing, the First Department held:

Supreme Court also improvidently exercised its discretion in terminating temporary maintenance based primarily on the length of the parties' marriage and the duration of interim payments already made (see Emmanuel D. v Ximena D., 73 Misc 3d 1208[A], 2021 NY Slip Op 50975[U], *11-12 [Sup Ct, Kings County 2021]). By terminating interim support because the husband had paid maintenance for a period approximating what might be deemed appropriate under the post-divorce advisory percentages, the court collapsed the statutory distinction between temporary and post-divorce maintenance and treated the advisory schedule as a de facto cap on temporary maintenance. Domestic Relations Law § 236 (B) (5-a) does not authorize such an approach. The reliance on post-divorce durational percentages to end interim support before trial effectively adjudicates the ultimate maintenance determination in advance, without the evidentiary record and statutory analysis required under section 236 (B) (6).

In this motion, plaintiff argues that the holding in Foster is new law that is binding on this Court. Further, she asserts that this Court similarly terminated temporary maintenance based on the length of the parties' marriage and the duration of the interim payments already made.

Defendant responds that plaintiff has not demonstrated a change in the law that would have changed this Court's prior determination.

Although matrimonial courts certainly retain discretion to revisit and modify or terminate a pendente lite support order as recognized in Foster, no prior binding decision has stated that temporary maintenance cannot be terminated based on the length of the marriage and the duration of the temporary payments already made. Thus, this constitutes a change in the law. That was also the basis of this Court's decision terminating the temporary maintenance. This Court is constrained to follow the holding in Foster. Therefore, renewal must be granted and the prior order vacated.

However, this legal landscape raises a few questions that must be considered. Although the post-divorce maintenance advisory schedule is not referenced, Domestic Relations Law § 236 (B)(5-a)(f) states that "[t]he court shall determine the duration of temporary maintenance by considering the length of the marriage." This directive is in direct conflict with the holding in Foster. Indeed, the section directs that Court's awarding temporary maintenance consider how long it will continue by considering the length of the marriage. If a Court can do so at the time it sets temporary support, why could it not do so after two years have passed and the parties are still litigating? If it is a provident exercise of discretion to set a limit at the outset, why is it improvident after more time has passed and more information is learned?

As a practical matter, Courts often set pendente lite support at or near the commencement of an action. Often, such awards are set without all the information that is gained over the course of the litigation. Thus, courts may be reluctant to determine at such early stage how long temporary maintenance should last. Under Foster, must courts now do so for fear that they lose discretion to do so at a later date? Might courts be hesitant now to award temporary spousal support since such award may now be one that lasts many more years than reasonable? Might courts award temporary spousal support at lower levels in consideration of the fact that the award cannot be terminated likely for many years until trial is reached?

And the impact of the ability to resolve cases must also be considered. As any matrimonial practitioner or jurist knows, temporary awards often calcify and make settlement difficult as parties receiving support may be incentivized to hold out or wait years for a trial. The inability of matrimonial courts to revisit, modify, or terminate temporary awards based on their duration (in relation to the length of the marriage) strips them of a critical tool in exercising equity and promoting settlement. Was this the intent of the Legislature? Does this promote equity? Or does this promote endless litigation?

These are not questions this Court has the authority to answer but they should be considered and this issue revisited.

In sum, the motion is granted, and the Court's November 22, 2023 order is vacated. The Court declines to set a new amount of temporary maintenance or address the fact that child support is not being paid now given that defendant has temporary custody.

Any further and related motions concerning arrears, retroactivity, or setting new temporary spousal support should be made before the current matrimonial jurist assigned to this matter.

This constitutes the decision and order of the Court.

DATE 10/2/2026

ARIEL D. CHESLER, J.S.C.

Ariel D. Chesler, J.