One of the universal themes in divorce matters is that the court is supposed to try to maintain the status quo while the case is pending. In many cases where there is barely enough money to go around to support an intact family, after the parties separate and the money has to be spread amongst two households, the financial squeeze gets even worse. Often that means bad news for the supported spouse because she/he has less money to live while the case is pending. It often means worse news for the supporting spouse who may have to shoulder a much higher burden then he/she will have to pay after the case is over. That is why people often continue to live together while the case is pending. But can this get fixed by a Mallamo adjustment.

Mallamo is a case that says that pendente lite support awards are “temporary financial support pending the resolution of the [matrimonial litigation]” and “are subject to modification prior
to entry of final judgment and at the time of entry of final judgment.” It is often based upon incomplete or preliminary information. Accordingly, Mallamo authorizes a trial judge to adjust a pretrial award after considering the evidence and credibility of the parties, when a judge is in a better position to determine whether the means of the parties align with the pretrial award. Id. at 16. Mallamo, however, does not require courts to adjust pendente lite orders after trial.

While a court, in theory, can adjust pendente lite Orders up or down at trial, it practice, absent changes of circumstances or glaring provable errors, you don’t often see pendente lite Orders reduced at trial – particularly because the status quo is being maintained. For instance, if the pendente lite order is based upon a high mortgage or rent expense, even though the final support may be less, those actual costs remained the same during the pendente lite period.

This exact issue came up in the case of Remy v. Remy, an unreported (non-precedential) Appellate Division opinion released on July 8, 2024. In this case, the court granted $3,875 per month in pendente lite support – $2,875 for shelter and transportation expenses and $1,000 for unallocated expenses. At trial, the court awarded $1,857.50 per month in alimony and $172 per week in child support -or about $1,272 per month less than the pendente lite award. Husband’s request for a Mallamo credit was denied and he appealed.

The Appellate Division rejected the claim for a Mallamo credit as “…wholly without merit because
he is comparing ‘apples to oranges’…” Citing to the Slutsky case, the Court noted that:

“a retroactive change “in the ordered pendente lite support should be considered when the amount initially awarded based on limited information at the inception of a matrimonial matter is later determined ‘woefully inadequate’ or ‘obviously unjust’ once all facts and circumstances are fleshed out at trial.”

In short, because the issues are apples and oranges, the court found that Husband offered no proof “that the pendente lite awards were too high based upon incorrect information”… the pendente lite awards were too high, based on incorrect information or calculations, were woefully inadequate, or
obviously unjust once all facts and circumstances were “fleshed out at trial.”

On the other hand, I have blogged about other cases where pendente lite support was adjusted up. In one case, the court added a savings component to the pendente lite support. In another, after trial, the judge found that the pendente lite support was inadequate to meet the marital lifestyle and retroactively adjusted the support upwards.

So the bottom line is that while Mallamo adjustments are possible after a trial, in the typical case, if granted, it is more likely to go up than down.

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