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.