Pendente Lite-Less Filling, Tastes Great

The Pendente Lite Motion. Don't even try pronouncing it. I have heard it pronounced all different ways by both lawyers and judges. Personally, I pronounce it pen-dent-ay-leet-ay. Oh, my gosh, I just realized that it's actually pig Latin! Who da thunk!?

Your complaint or answer is filed, but alas, the children are eating ramen noodles every meal because there's no money since your deadbeat spouse has left you high and dry and is spending all their money on their new corvette. Must you wait until the divorce is finalized? Will you be living at the mission? No, hope is just around the corner in the form of a Pendente Lite Motion.

Literally, Pendente Lite means "pending the litigation." There are certain issues which can be addressed fairly quickly with a temporary order that will be in effect until another order is issued or the final judgment of divorce is entered. The most common issues addressed are custody, parenting time, child support and spousal support. Other issues which may be addressed are medical insurance, payment of specific debts or extraordinary expenses, funding the litigation, disposing of assets or restraining some one from disposing of assets. In general, you can only address issues with the Pendente Lite Motion if waiting for the issue to be resolved will be harmful in some way.

Some of the issues are fairly routine. The court will not question these. The court will not expect you to wait for child support, the kids need sneakers now! The Court will not permit your spouse to keep you away from the kids until the divorce is final, (as long as you're not an ax murderer and even then you'll probably get supervised visitation.)

Some may be more complex and you may have to convince the Court that you just have to have the issue decided now and not later. For instance, if you want to sell the coin collection to pay for your lawyer's fees, you will have to convince the Court that you don't have any other way to pay. If you want to sell the house, you have to show the Court why it has to be sold now and what exactly you plan to do with any proceeds from the sale. The Pendente Lite Motion is not a mini-divorce, it deals only with imminent issues. Your attorney will advise you as to what issues should be in your Motion.

The Pendente Lite Motion consists of several documents. The Notice of Motion: a lawyerly document which sets out the return date (the date the motion is scheduled for,) where it's going to be heard and the relief you are asking for (what do you want?) The Certification: the meat of the Motion which is written by your lawyer as if they were you, it sets out all your reasons and arguments for why you should get what you're asking for. The Notice to Litigants: another lawyerly document which states what are you are filing and what the other side can do about it legally. The Proof of Mailing: the document that certifies that the Motion has in fact been mailed to the other party. And finally, a proposed Order which, hopefully, the judge will sign. All this get filed with the court and mailed to the other side.

Your lawyer will actually pick the date the Motion is to be heard, the return date. In New Jersey, motions are heard on Fridays unless the judge specifically orders another date, which is unusual. A Pendente Lite Motion is considered a 16 day Motion which means that it must be mailed 19 days before the return date. (Don't you love it!? Actually this is because the other side has to have 16 days notice and they tack on 3 days for mailing time.) The other side will respond with a certification and also possibly a cross-motion. It is a cross-motion because they were really mad when they got your motion. A cross-motion simply means that they are also asking the judge for some things. After the other side files, you get to file a certification to respond to them. They then get one more shot at responding to your response. That is it for filing, a piece of cake, right? You are not allowed to respond ad infinitum. Here's where it gets really exciting, the cross-motion or response must be filed 8 days before the return date (mailed 11 days before.) If you have a response coming to you, you only have 4 days to get it to the Court and the other side. The last bite at the apple has virtually no time to file. Generally, you don't see people using all their response privileges, it's just not necessary most of the time. However, if your lawyer calls and tells you they need you to sign something today, get your butt to their office pronto. To get on my soap box, the time lines are regularly ignored by lawyers. If your response is going to be late you are supposed to get the judge's permission after contacting the other side to let them know and see if they will be gracious and say it's ok with them. Not to pat myself on the back, but I am the only lawyer I know who does this. I believe that the Rules of Court are there for a reason and follow them as best I can. Additionally, I think it's rude and sneaky to file your paperwork late in hopes of a postponement or to ambush the other side. Getting off soapbox now.

Any time up to and including the return date, the parties can come to an agreement and submit a Consent Order which will resolve the issues. A Consent Order will be prepared by one of the lawyers, signed by the lawyers and/or the parties and submitted to the judge who will sign it and make it official.

Assuming you can't agree, the return date is upon us. This does not necessarily mean that you will go to court. In some Counties in New Jersey the judges issues tentative orders. They fax these out to the attorneys the day before the return date. If you accept the order, it gets signed and no one goes to Court. If you don't, you end up arguing your motion. In other Counties, the judges decide whether they want oral argument, ie. to hear from the parties, or if they will decide the motion "on the papers" which means they will make their decision on what is submitted. Unfortunately, and one of my great annoyances, you may not get notification as to whether you have to be in Court until late the afternoon before. I always schedule a motion for oral argument but it is often difficult for my clients due to their work schedules and kids.

If there is oral argument, you will go to Court and your attorney will present your case to the judge. This is usually directed and controlled by the judge. The judge will ask the lawyers specific questions that they have in order to obtain the information they need to make a decision. Some tips for your conduct: do not speak unless the judge asks you a direct question. Do not make noises or funny faces when the other side says something you don't like. Do not talk to your lawyer during oral argument, they are either trying to talk or trying to listen and they will not be able to if you are talking to them, write down anything you need them to know and show it to them when there is a break in the action. Do not expect your lawyer to bring up every little thing you can think of, the judge has already read your papers and you're only going to piss him off if you repeat everything in them. Do not expect your lawyer to continue arguing when it is clear the judge has made up their mind, another sure way to piss off the judge. Trust your lawyer to know what to include and what to omit. I argued a motion the other day, when it was done, my client asked me why I did not bring up modifying the visitation schedule, I patiently, with gritted teeth, explained that I felt the judge's statement at the beginning that he was not going to modify the parenting arrangement was a pretty good indication that he did not want me to press the issue. Additionally, the judge will probably be addressing the visitation issue in round 2, a month from now. Unfortunately, your lawyer can not explain everything to you that's going on in the court room and in all fairness, you are in the dark about many of the finer points, because of this you will have to trust your lawyer.

The end result will be an order that will be binding and enforceable until there is another order or final judgment of divorce to replace it. Your kids will miss their ramen noodles now that you have money to buy healthy food like spinach. They will like their new sneakers though.

Next, nearing the finishing line-Matrimonial Early Settlement Panel.

Negotiations - The Art of Getting All the Stuff

Now that the discovery process is underway, negotiations should be starting. I like to ask my clients for a settlement proposal as early as possible. Not that I'm going to give it to the other side, it's more so I can see where my client's at and where they're going. These proposals give me all sorts of clues. When my client asks for the house, every single possession and their spouse's pay check, I know that I'm going to have a lot of splainin' to do to my client. I stock up on aspirin at that point. Other proposals are more reasonable and they tell me what is important to my client. Some focus on the children. Some focus on houses. Some focus on support. Whatever the proposal focuses on is what is most important to my client and/or is creating the most anxiety for them. Knowing this makes it far easier to negotiate for my client and also to make my client happy, (if there is such an animal in family court.)

Settlements do not have to be fair in any sense of the word, neither legally nor morally. If you and spouse agree to something that's okey-dokey with the Court even if it is totally one-sided. Once in a while I get a case where the parties do what's right, not what's the law. By that I mean, even though by law the house should probably get sold and the equity split, the parties agree to let the custodial parent live in the home for the sake of the kids. Those cases renew my faith in humanity. Ain't too many of them.

Even during the litigation I encourage my clients to negotiate with their spouse if they are still able to communicate civilly. Not only will you save a lot of money in fees, but you and your spouse know better than your lawyers what is good for you and your family. Once again my mantra: if you can do it yourself, don't pay me to do it.

Negotiations between lawyers is a whole different ballgame. A lot depends on the lawyers themselves. I deal with many lawyers who are absolutely wonderful to work with. Their goal is to settle the case as quickly as possible with the best deal for their client. I know other lawyers who are a nightmare. They ignore their client's wishes, they won't deal or compromise at all, they seem to feel the need to churn the wheels of justice even when unnecessary. Your lawyer may be doing a stupendous job for you but isn't getting anywhere because of the other lawyer. To illustrate: the house is not an issue, it's a pre-marital asset by 10 years and the parties have only been married for 2 years. The attorney from hell insists on an appraisal and won't discuss any settlement until the appraisal is done. A judge will not typically deny the request for an appraisal as the distribution of the house is an issue left for trial. Shoot me now. If the opposing attorney is this type of lawyer, don't blame your poor beleaguered attorney, they are more than likely doing everything they can.

To negotiate a deal which is good for you does require you to decide what is important to you and what you are willing to compromise on. Do you really want the house and are willing to give up your share in the pension to get it? It also requires you to be reasonable. Are you really willing to put your family through a custody evaluation and battle just because your spouse smoked pot 30 years ago? It is often difficult for litigants to negotiate unemotionally, this is why you have a lawyer. I'm not mad because your spouse insisted on buying a car last year that you couldn't afford. Let your lawyer guide you through negotiations as someone who is not only knowledgeable about the law, but is an unbiased third party. I have dealt with people who turn into 2 year olds when it comes to negotiations. I suggest the spouse get the kids for tax purposes since you don't work and they're paying alimony and support-No! I suggest that since you have 3 TV's that the spouse get one-No! I suggest that the spouse have the kids while you're working to save on daycare costs-No! This type of negotiation tactic is only going to get you a time out, not a decent settlement.

Some issues can not be settled until all the information is in. Be patient. I am not going to suggest you swap your slice of the pension pie for the house without knowing what the value of each is. That's just plain stupid and probably malpractice too. Also, don't ask me to propose that to the other side, it's a waste of time. I recently had a client who absolutely insisted, against everything I said, that I propose the most one-sided settlement as a final offer. This person actually meant it too. I told the other attorney I was faxing him a proposal, he asked if it was a good one, I flat out told him no. I couldn't lie, the proposal was worse than bad, my client was demanding every asset the parties had, I would have looked like a dimwit if I had said I thought it was a good fair proposal. After reading the proposal, the other attorney was laughing so hard when he called me that he could hardly talk. I told my client the offer was rejected and he fired me. Yahoo! Clients like that are just not worth their billable hours.

One of the basic principles of negotiation is "good faith." You must negotiate in good faith. Don't propose a deal that you have no intention of honoring. Don't propose nor accept a deal unless you fully understand that it will be binding and enforceable (ooh, sound like some legal s&m). I actually get people who accept deals and then later tell me that their spouse will never make them sell the house. On what planet do these people reside? I also deal with the opposite. I get a settlement involving support and it becomes apparent real quick that the other party has no intention of paying support. Guess what, just because your case is over doesn't mean that you'll never see your favorite judge again. Entering into a deal and not following it is a sure way to spend leisure time in Court arguing Motions for Enforcement.

There's lots of things to weigh when you're negotiating a settlement. Your attorney will know and advise you of the legal side. Only you can judge the personal side. If a settlement is better for you personally than financially there's nothing wrong with that. Unlike a lot of the world, I don't judge success with dollar signs, your happiness is far more valuable then your portfolio. Reason and compromise are are crucial. Most cases should settle. I can count on one hand the cases where I really felt there was an issue which needed to be decided by a Judge. Don't make me use my other hand.


If you are able to come to a settlement agreement, all the turmoil stops then and there. One of the attorney's will write up the agreement. Everyone will sign it. Some joyous attorney will inform the judge who will schedule a date for the hearing and voila!, you will be divorced. Makes my heart sing just to think about it.

Parting shot: if you have a lawyer who will not listen to what you want and insists that you need to wring every last cent cent out of your spouse, find a new lawyer. A lawyer who ignores their client's personal needs is only doing half their job. A good lawyer will advise you of the law and what you are entitled to and will follow your wishes even if you end up a little behind in the plus column.

Stay tuned: The Pendente Lite Motion. Lawyers proving they know Latin.

Discovery - There's a House in the Bahamas!!!?

To continue with Divorce 101. The Complaint and Answer are filed. Now it's time for discovery.

The judge will enter a Case Management Order. The Order will be developed through either a hearing, a conference or submission of a Consent Order by the attorneys. In most cases the Order is entered into by consent as there really isn't anything to fight over.

The Order sets out the time lines for the case, what discovery the parties will swap, and experts if needed. Discovery is all the information needed for the case. Be prepared, this can be massive and involve a lot of leg work. Both parties may have to swap 5 years of bank records. Assets may need to be appraised. Credit card records for years may have to be produced including exactly what was purchased. You may have to get a social security statement and/or pension statement. If there's a small business, years of business records may have to be coughed up. Courts make decisions based on proof, if you are making a claim or defending against one, you have to have the proof. It's not good enough to get on the stand and tell the judge you're wife ran up the credit card bills buying thong underwear for her boyfriend. You have to show the court the receipts or credit card statements showing the purchase and then you have to prove that the shorts weren't for you, you sexy devil.

Discovery may also include interrogatories, depositions and notices to produce. Interrogatories are sets of questions for the other party to answer. Generally interrogatories are incredibly lengthy and comprehensive, 40+ questions, 20+ pages. Usually half of the questions are already answered or don't apply so they're not as difficult to complete as you may think on first glance. Get them done as soon as possible. The notice to produce is usually sent with the interrogatories. It is a demand for certain records. Most of the time disclosure of the records is already ordered in the Case Management Order. The notice to produce puts the other party on notice that you are serious about getting these records and gives you an additionally zing if you don't get the records and have to file a motion to get them. Depositions are when the other attorney gets to question you about anything pertinent to the case their little heart desires. It is not like a hearing, there's a lot of latitude as to what they can ask. Just because they ask it doesn't mean it will be admissible in Court. Depositions are not real common in divorces but you will see them when someone is refusing to cooperate with discovery or there are complex and/or fuzzy issues.

In New Jersey you will have to file a Case Information Statement. This sets out basic information about yourself and pretty detailed information about your finances. Income, assets, debts and your budget are all included. The Case Information Statement is a royal pain to fill out but you must fill it out and file it with the Court. It is the basic document from which flows the river of divorce.

You must cooperate with discovery. I will get a request for someone's bank statement. My client will tell me it's none of their business. Wrong! It is their business and if they have to get the Court to make you give it to them, you will now be paying your ex-to-be's legal fees for the motion too. Full financial disclosure is a requirement. If someone refuses or evades disclosing something it can come back to bite you later when your settlement or judgment is overturned. Hiding assets or information is a sure way to get yourself in trouble and possibly even find yourself with a really bad judgment.

Cooperating with discovery also keeps the cost of your divorce down. If both parties are swapping all the information voluntarily it makes the lawyers' jobs easier and the billable hours less. If you can get the information yourself, do it. I'll ask people to get a pension statement. Their attitude is that's what they're paying me for. OK, have it your way. Charge for you to call human resources and get them to send it to you-$0. Charge for me to get a release from you, mail it with a cover letter to human resources requesting your pension information-your first born. If you want to pay me to do something you can easily do, you're just stupid and deserve to pay for it.

As stated earlier, even in family court, proof is needed. My clients really have trouble grasping this concept. This applies to every issue, not just the financial ones. If you want to claim that your spouse is a bad parent you will have to prove it. Your say so isn't enough. You may need an expert to complete a custody evaluation. If you want to bring up specific incidents you may need to call witnesses to the incidents or have medical reports. If you want to claim that your spouse didn't contribute financially to the marriage you have to prove it. You will need to show the paper trail of the finances. You may also have to prove that there wasn't a good reason for your slacker spouse to not fork out any money during the marriage. If you supported your doctor husband-who-has-now-run-off-with-nurse-Nancy through med school, you will have to show the paper trail of your finances during that time. You may be awfully cute and sincere, but that ain't enough for the judge to rule in your favor.

Discovery is the foundation of your case and is actually fair too complex to fully explain in this crash course. Bottom line, if your lawyer asks for something, there's a reason, give it up with a smile on your face and a song in your heart.

Next up, settlement negotiations: theirs, mine and mine.