Pendente Lite Motions

Pendente Lite Motions

By J. Douglas Barics
Suffolk and Nassau Divorce Attorney

A pendente lite motion is a request for early court intervention to address pressing issues that cannot wait until your case is over. You may benefit from a pendente lite motion if:

• Your spouse is not paying child support
• Your spouse makes significantly more than you and is not helping financially
• You cannot afford to pay some or all of your legal fees
• You cannot afford to pay some or all of experts necessary to obtain a fair share of the marital assets
• Your spouse is verbally or physically abusive
• Your children are at risk from your spouse’s behavior

How to Obtain Pendente Lite Relief

When a temporary agreement is not possible, a pendente lite motion must be filed. The requirements for a pendente lite motion are as follows:

• A divorce or annulment action must be filed. No matter how pressing the pendente lite relief is needed, it cannot be awarded without an underlying matrimonial case being commenced.
• Service of the Summons in the divorce or annulment is not required to be done first. The Court can order that service of both the pendente lite motion and the summons can be done at the same time.
• An Request for Judicial Intervention (RJI) must be on file.
• The motion may be either a notice of motion or an order to show cause
• The pendente lite motion should be brought before the preliminary conference if possible, but it is not a requirement to do so.
• A net worth statement must be included as an exhibit.
• When counsel fees are requested, an attorney affirmation must be attached that includes the following information:
  • The amount of money received by the attorney to represent the moving party
  • The hourly rate of the attorney
  • The amounts paid or amounts outstanding owed to the attorney
  • Additional costs or disbursements
  • The monies the attorney has been promised to be paid by someone other than the client

Pendente Lite Child Support

Pendente lite child support will often use CSSA guidelines, but the court is not required to do so if circumstances warrant.

Pendente Lite Maintenance

Pendente lite maintenance is determined by a formula. It uses two calculations to determine temporary spousal support and uses the calculation which gives the lower dollar amount.  The temporary maintenance calculator is available at the New York State Unified Court System Homepage. Below is a direct link.

 

Temporary Maintenance Calculator

 

Pendente Lite Counsel Fees

Under Domestic Relations Law 237, there is a presumption that the spouse with more financial resources must pay temporary counsel fees to the spouse with less resources. This presumption can be rebutted based upon the specific facts of each case.

All requests for pendente lite counsel fees must include:

• The attorney's retainer agreement
• The retainer agreement must comply with 22 NYCRR 1400
• A statement of net worth
• A statement by the attorney that includes the amount paid already, the hourly rate, the amounts owed, and whether or not anyone else has agreed to pay counsel fees
• An affidavit by the spouse seeking counsel fees explaining in greater detail the financial circumstances of the parties.

Pendente Lite Expert Fees

If your spouse has a business, hidden accounts or hidden income, a forensic accountant may be necessary. Domestic Relations Law 237 authorizes the court to award expert fees. In order to request a payment towards your own expert, an affidavit from the proposed expert is necessary which details his or her qualifications, the rates, the anticipated work, and the estimated cost. See Ahern v Ahern for the case which established these standards.

Pendente Lite Exclusive Occupancy

If your spouse is making unsafe to reside together by threatening you, your children, or if he or she is threatening to destroy physical property, or if he or she has taken up an alternate residence elsewhere, an application for pendente lite exclusive occupancy may be appropriate while the divorce or annulment is pending.

Pendente Lite Custody and Parenting Time

Courts have the authority to award both temporary custody and a temporary parenting time schedule. Custody and parenting time is extremely fact specific and each case will depend on its unique facts. Pendente lite parenting time will often be address when one parent is being deprived of meaningful access to the children. Pendente lite custody is generally reserved for cases involving domestic violence or when there are undisputed facts of one parent being absent from the children's lives.

Pendente lite motions can be critical in obtaining short term orders that will directly affect the course of the divorce.  The affidavits and the net worth statement will determine if the pendente lite motion is won or lost. However, once the motion is decided, the statements in the supporting affidavits and financial disclosure is extra discovery to your spouse and anything said in these affidavits can be used against the moving party in a trial.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about obtaining a fair pendente lite order, or defending against an unreasonable request for pendente lite relief. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.