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Temporary Orders in a New York Divorce: What a Judge Can Order While the Case Is Pending

By Pieter G. Weinrieb, Esq. · Admitted NY 2005 · 42-hour certified family and divorce mediator · Published October 4, 2026

The short answer

A divorce can take months, and the law does not make anyone wait that long for support or safety. While the case is pending, the court can order temporary maintenance under a statutory formula, temporary child support under the CSSA, interim counsel fees for the less monied spouse, exclusive use of the home in the right circumstances, and temporary custody and parenting time. These are called pendente lite orders. You ask for them by motion, and they last until the final judgment replaces them.

What the Court Can Order

Temporary maintenance

When a spouse asks, the court must calculate temporary maintenance using the guideline formula in DRL §236(B)(5-a), unless the spouses have an agreement. The formula runs on the payor’s income up to a cap that the court system adjusts every two years; since March 1, 2026 that cap is $241,000. The court can depart from the guideline amount if it would be unjust or inappropriate, considering factors that include wasteful dissipation of marital property and acts, including domestic violence, that have limited a spouse's ability to earn. Temporary maintenance ends no later than the judgment of divorce. Our spousal maintenance calculator runs the formula.

Temporary child support

Temporary child support uses the same Child Support Standards Act formula as a final order (DRL §240(1-b)): 17% of combined parental income for one child, 25% for two, 29% for three, 31% for four and at least 35% for five or more, applied to combined income up to $193,000. Temporary maintenance is calculated first and counted in each parent’s income before child support is figured. The child support calculator does both.

Interim counsel fees

DRL §237(a) creates “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse,” and says that when fees are awarded, they should be awarded “on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.” In plain terms: if your spouse controls the money, the court can order them to pay toward your lawyer while the case is going on. See who pays attorney fees in a New York divorce.

Exclusive use and occupancy of the home

DRL §234 lets the court decide which spouse stays in the marital home, before or after judgment. Appellate courts treat removing a spouse from the home during the case as serious: one appellate decision put the standard as a showing that it is “necessary to protect the safety of persons or property,” or that the spouse being removed has voluntarily established another residence and a return would cause domestic strife (Taub v Taub, 33 AD3d 612 [2d Dept 2006]). Not getting along is not enough. Where there is abuse, an order of protection is often the faster route. See also can I change the locks during a divorce?

Temporary custody and parenting time

The court can set custody and a parenting schedule for the length of the case under the best-interests standard, and “there shall be no prima facie right to the custody of the child in either parent” (DRL §240(1)(a)). Before issuing a temporary custody order, the court must review the statewide registry and warrant reports the statute lists. A temporary schedule often shapes the final one, which is why it deserves attention early. For true emergencies, see emergency custody orders in New York.

The Automatic Orders Come First

Before anyone files a motion, the automatic orders are already in place. They bind the spouse who files as soon as the summons is filed, and the other spouse as soon as it is served (DRL §236(B)(2)(b)). Among other things, neither spouse may sell, transfer, hide or otherwise dispose of property except in the usual course of business, for customary household expenses, or for reasonable attorney’s fees. They keep the status quo; temporary orders change it.

How Temporary Relief Is Requested

Temporary relief is requested by motion in the divorce action. Under the court rules, the motion should be made before or at the preliminary conference if practicable, it will not be heard unless the moving papers include a statement of net worth, and a motion for interim maintenance or child support must be decided within 30 days after it is submitted for decision (22 NYCRR 202.16(k)). The statement of net worth is the backbone of any support request, so getting it right is worth the effort.

Can a Temporary Order Be Appealed?

Technically yes, but appellate courts rarely change them. The Fourth Department, which hears appeals from Erie and Niagara Counties, has said that “the remedy for any claimed inequity in an award of temporary maintenance is a speedy trial, not an appeal” (Cullen v Cullen, 166 AD2d 889 [4th Dept 1990]). In practice that means the temporary award matters, and the way to fix a bad one is usually to move the case toward a final resolution.

Frequently Asked Questions

How long does it take to get temporary support in a New York divorce?

Under 22 NYCRR 202.16(k), a motion for interim maintenance or child support must be decided within 30 days after the motion is submitted for decision. The motion must include a statement of net worth, so preparing that early saves time.

Can I get my spouse to move out while the divorce is pending?

Only in the right circumstances. DRL §234 lets the court award exclusive use of the home, but appellate courts generally require a showing that it is necessary to protect the safety of persons or property, or that the other spouse has voluntarily moved out and a return would cause strife. Where there is abuse, an order of protection is often faster.

Will the temporary order become the final order?

Not automatically. Temporary maintenance ends no later than the judgment of divorce, and the final award is decided on the full record. A temporary custody schedule often influences the final one, though, so it deserves attention early.

Can my spouse be ordered to pay my lawyer during the divorce?

Yes. DRL §237(a) creates a rebuttable presumption that counsel fees will be awarded to the less monied spouse and says that when fees are awarded, they should be awarded on a timely basis while the case is pending.

Can I appeal a temporary support order?

You can, but appellate courts rarely change temporary awards. The Fourth Department has said the remedy for an unfair temporary maintenance award is a speedy trial, not an appeal.

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About the author

Pieter G. Weinrieb, Esq. has practiced divorce and family law in Western New York for more than 20 years. Admitted to the New York State Bar in 2005, he holds a J.D. from Pace Law School and an M.A. in Humanities from SUNY Buffalo, is a 42-hour certified family and divorce mediator, and serves on the Attorney for the Child panels in Erie and Niagara Counties. He founded Weinrieb Law in Williamsville in 2011. Read his full bio.