Preparation Of Pendente Lite Applications

Categories: Child Custody

The pendente lite phase of the case and the results of a pendente lite application are critical for setting the tone for the balance of the case, and often affect whatever final decisions or agreements are reached. If an inequitable result occurs early on, it could seriously compromise one party’s case. Typically, pendente lite motions provide judges with an introduction to the parties, including the details of the marriage, separation, children, and other relevant factors surrounding the case. As a rule, first impressions are usually important, and the pendente lite application is no exception.

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Understanding the Importance of Pendente Lite Applications

Depending on the results, pendente lite applications have the potential to create leverage for the balance of the case, spur client management and relations problems, and to escalate litigation costs attributable to the entrenchment of the “winner” and the commitment of the “loser” to retake lost ground.
It is therefore essential to provide judges with sound, hard evidence at the pendente lite phase, that will enable them to deal fairly with both sides pending the submission of final proofs. An unfairly skewed pendente lite award can thwart fair outcomes and is simply one of the worst things that can happen to both parties.

Should You File for Pendente Lite Support if there are Voluntary Arrangements?

Money being paid or received voluntarily might quickly become the status quo. Consequently, if the arrangement is unacceptable to either party, a pendente lite support application should be filed to establish a more appropriate support amount.
If too much support is being paid voluntarily, payor spouses should know that this should be modified, in order to avoid the risk of an adverse inference being drawn that there was an ability to pay that particular sum. The ultimate risk is that the payment might likely continue to be ordered in the future. If insufficient support is being received, on the other hand, the recipient spouse should be made aware that the continuation of that practice will likely create the inference that the money paid is sufficient to satisfy the needs of the payee spouse.
For any number of reasons, many clients adopt skewed arrangements they have reached between themselves. If the disadvantaged spouse is ours, we must explain the likely legal consequences of the risky interim decision.

Is Proof Sufficient for Filing a Motion for Pendente Lite?

Evidence on a pendente lite motion is not as clear as what will be presented at the conclusion of the case, following the completion of discovery. For example, when people have lived a lifestyle beyond that which is reflected on their tax returns, it will be difficult to prove it at the pendente lite phase of the case. We need to present our client’s data by way of documentation. If documentation is nonexistent, then photographs can be employed to illustrate lifestyle.

Pertinent Rules of Court to Know

  • R. 1:6-1 Applicability of Rule

Rule 1:6 shall apply to all trial courts, except the municipal courts and except as otherwise provided by R. 3:26-2(d) (motions for bail reductions), R. 5:5-4 (motions in civil family actions), and R. 6:3-3 (motions in the Special Civil Part).

  • R. 1:6-2 Form of Motion; Hearing

(a) Generally. An application to the court for an order shall be by motion, or in special cases, by order to show cause. A motion, other than for bail pursuant to R. 3:26-2(d) or one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally. Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought and shall be accompanied by a proposed form of order in accordance with R. 3:1- 4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed. If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6. The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought.
(b) Civil Motions in Chancery Division and Specially Assigned Cases. When a civil action, by reason of its complexity or other good cause, has been specially assigned prior to trial to an individual judge for disposition of all pretrial and trial proceedings and in all cases pending in the Superior Court, Chancery Division, all motions therein shall be made directly to the judge assigned to the cause, who shall determine the mode and scheduling of their disposition. Except as provided in R. 5:5-4, motions filed in causes pending in the Superior Court, Chancery Division, Family Part, shall be governed by this paragraph.
(c) Civil and Family Part Discovery and Calendar Motions. Every motion in a civil case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non-compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter. The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have been fixed. Discovery and calendar motions shall be disposed of on the papers unless, on at least two days notice, the court specifically directs oral argument on its own motion or, in its discretion, on a party’s request. A movant’s request for oral argument shall be made either in the moving papers or reply; a respondent’s request for oral argument shall be made in the answering papers.
If too much support is being paid voluntarily, payor spouses should know that this should be modified, in order to avoid the risk of an adverse inference being drawn that there was an ability to pay that particular sum. The ultimate risk is that the payment might likely continue to be ordered in the future. If insufficient support is being received, on the other hand, the recipient spouse should be made aware that the continuation of that practice will likely create the inference that the money paid is sufficient to satisfy the needs of the payee spouse.
(d) Civil and Family Part Motions/Oral Argument. Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right.
(e) Oral Argument Mode. The court in civil matters, on its own motion or on a party’s request, may direct argument of any motion by telephone conference without court appearance. A verbatim record shall be made of all such telephone arguments and the rulings thereon.
(f) Order; Record Notation. If the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall so note indicating whether the findings and conclusions were written or oral and the date on which they were rendered. If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. If the order directs a plenary or other evidential hearing, it shall specifically describe the issues to be so tried. A written order or record notation shall be entered by the court memorializing the disposition made on a telephone motion.

  • R. 1:6-3 Filing and Service of Motions and Cross-Motions

(a) Motions Generally. Other than an ex parte motion and except as otherwise provided by R. 4:46-1 (summary judgment) and R. 5:5-4 (c) (post judgment motions), a notice of motion shall be filed and served not later than 16 days before the specified return date unless otherwise provided by court order, which may be applied for ex parte. Thus, for example, if the return date of the motion is a Friday, the motion must be filed and served not later than the Wednesday, 16 days prior. If a motion is supported by affidavit or certification, the affidavit or certification shall be filed and served with the motion. Except as provided by R. 4:49-1(b) (motion for new trial), any opposing affidavits, certifications or objections filed pursuant to R. 1:6-2 shall be filed and served not later than 8 days before the return date unless the court relaxes that time. Thus, for example, if the return date is on a Friday, any response must be filed and served no later than Thursday of the prior week. Reply papers responding to opposing affidavits or certifications shall be filed and served not later than 4 days before the return date unless the court otherwise orders. Thus, for example, such papers must be filed and served on Monday for a return date of the following Friday. No other papers may be filed without leave of court.
(b) Cross-Motions. A cross-motion may be filed and served by the responding party together with that party’s opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion. A cross-motion relating to the subject matter of the original motion shall, if timely filed pursuant to this rule, relate back to the date of the filing of the original motion. The original moving party’s response to the cross-motion shall be filed and served as provided by paragraph (a) for reply papers. The court may, however, on request of the original moving party, or on its own motion, enlarge the time for filing an answer to the cross-motion, or fix a new return date for both. No reply papers may be served or filed by the cross-movant without leave of court.
(c) Completion of Service. For purposes of this rule, service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing.

  • R. 1:6-4 Superior Court; Place for Filing Motions, Orders to Show Cause and Orders

The original of all motion papers, orders to show cause and orders in civil actions in the Superior Court shall be filed in accordance with R. 1:5-6(b), except that in all actions in the Chancery Division or specially assigned to a judge of the Law Division or, if the judge to whom the motion is assigned is known, a copy of all motion papers shall also be filed with the judge.

  • R. 1:6-5 Briefs

The moving party’s brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return date. Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte.

  • R. 1:6-6 Evidence on Motions; Affidavits

If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

  • R. 1:10-3 Relief to Litigant

Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule. In family actions, the court may also grant additional remedies as provided by R. 5:3-7. An application by a litigant may be tried with a proceeding under R. 1:10-2(a) only with the consent of all parties and subject to the provisions of R. 1:10-2 (c).

  • R. 4:42-9 Counsel Fees

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except
(1) In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5…
(b) Affidavit of Service. Except in tax and mortgage foreclosure actions, all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought. If the court is requested to consider the rendition of paraprofessional services in making a fee allowance, the affidavit shall include a detailed statement of the time spent and services rendered by paraprofessionals, a summary of the paraprofessionals qualifications, and the attorney’s billing rate for paraprofessional services to clients generally. No portion of any fee allowance claimed for attorney’s services shall duplicate in any way the fees claimed by the attorney for paraprofessional services rendered to the client. For purposes of this rule, “paraprofessional services”, shall mean those services rendered by individuals who are qualified through education, work experience or training who perform specifically delegated tasks which are legal in nature under the direction and supervision of attorneys and which tasks an attorney would otherwise be obliged to perform.
(c) Statement of Fees Received. All applications for the allowance of fees shall state how much had been paid to the attorney (including, in a matrimonial action, the amount, if any, received by the attorney from pendente lite allowances) and what provision, if any, has been made for the payment of fees to the attorney in the future.
(d) Prohibiting Separate Orders for Allowances of Fees. An allowance of fees made on the determination of a matter shall be included in the judgment or order stating the determination.

  • R. 5:3-1 Applicability
  • R. 5:3-2 Closed Hearings
  • R. 5:3-3 Appointment of Experts

(a) Medical, Psychological and Social Experts. Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts’ opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person’s family. The court may also direct who shall pay the cost of such examination. The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.
(b) Economic Experts. Whenever the court concludes that disposition of an economic issue will be assisted by expert opinion, it may in the same manner as provided in Paragraph (a) of this rule appoint an expert to appraise the value of any property or to report and recommend as to any other issue, and may further order any person or entity to produce documents or to make available for inspection any information or property, which is not privileged, that the court determines is necessary to aid the expert in rendering an opinion. The court may also direct who shall pay the cost of such expert appraisal or report.
(c) Selection of Experts. Experts appointed hereunder may be selected by the mutual agreement of the parties or independently by the court. The court shall establish the scope of the expert’s assignment in the order of appointment. Neither party shall be bound by the report of the expert so appointed.
(d) Investigation by Experts. Any expert appointed by the court shall be permitted to conduct an investigation independently to obtain information reasonable and necessary to complete his or her report from any source, and may make contact directly with any party from whom information is sought within the scope of the order of appointment. The parties shall be entitled to have their attorneys and/or experts present during any examination by a court appointed expert. The expert shall not communicate with the court except upon prior notice to the parties and their attorneys who shall be afforded an opportunity to be present and to be heard during any such communication between the expert and the court. A request for communication with the court may be informally conveyed by the expert by letter or telephonic means, where after further communications with the court, which may be conducted informally by conference or conference call, shall be done only with the participation of the parties and their counsel.
(e) Submission of Report. Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.
(f) Use of Evidence. An expert appointed by the court shall be subject to the same examination as a privately retained expert and the court shall not entertain any presumption in favor of the appointed expert’s findings. Any finding or report by an expert appointed by the court may be entered into evidence upon the court’s own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties.
(g) Use of Private Experts. Nothing in this rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of an expert by the court, upon the same or similar issues.

  • R. 5:3-5 Attorney Fees and Retainer Agreements in Civil Family Actions; Withdrawal

(c) Award of Attorney Fees. Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of interspousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons. A pendente lite allowance may include a fee based on an evaluation of prospective services likely to be performed and the respective financial circumstances of the parties. The court may also, on good cause shown, direct the parties to sell, mortgage, or otherwise encumber or pledge marital assets to the extent the court deems necessary to permit both parties to fund the litigation. In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
(d) Withdrawal from Representation.(1) An attorney may withdraw from the representation prior to the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, upon the client�s consent and in accordance with R. 1:11-2(a)(1). If the client does not consent, the attorney may withdraw only on leave of court as provided in sub paragraph (2) of this rule.
(2) After the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, an attorney may withdraw from the action only by leave of court on motion on notice to all parties. The motion shall be supported by the attorney’s affidavit or certification setting forth the reasons for the application and shall have annexed the written retainer agreement. In deciding the motion, the court shall consider, among other relevant factors, the terms of the written retainer agreement and whether either the attorney or the client has breached the terms of that agreement; the age of the action; the imminence of the Matrimonial Early Settlement Panel hearing date or the trial date, as appropriate; the complexity of the issues; the ability of the client timely to retain substituted counsel; the amount of fees already paid by the client to the attorney; the likelihood that the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; the burden on the attorney if the withdrawal application is not granted; and the prejudice to the client or to any other party.

  • R. 5:3-7 Additional Remedies on Violation of Orders relating to Parenting Time, Alimony, or Support

(a) Custody or Parenting Time Orders. On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3, any of the following remedies, either singly or in combination: (1) compensatory time with the children; (2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent; (3) modification of transportation arrangements; (4) pick-up and return of the children in a public place; (5) counseling for the children or parents or any of them at the expense of the parent in violation of the order; (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children; (7) participation by the parent in violation of the order in an approved community service program; (8) incarceration, with or without work release; (9) issuance of a warrant to be executed upon the further violation of the judgment or order; and (10) any other appropriate equitable remedy.
(b) Alimony or Child Support Orders. On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver’s license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further violation of the judgment or order; and (8) any other appropriate equitable remedy.

  • R. 5:5-1 Discovery
  • R. 5:5-2 Case Information Statements

(a) Applicability. The case information statement required by this rule shall be filed and served in all contested family actions, except summary actions, in which there is any issue as to custody, support, alimony or equitable distribution. In all other family actions, a case information statement may be required by order on motion of the court or a party.
(b) Time and Filing. Except as otherwise provided in R. 5:7-2, a case information statement or certification that no such statement is required under sub-paragraph (a) shall be filed by each party with the clerk in the county of venue within 20 days after the filing of an answer or appearance. The case information statement shall be filed in the form set forth in Appendix V of these rules. The court on either its own or a party’s motion may, on notice to all parties, dismiss a party’s pleadings for failure to have filed a Case Information Statement. If dismissed, said pleadings shall be subject to reinstatement upon such conditions as the court may deem just.
(c) Amendments. Parties are under a continuing duty to inform the court of any changes in the information supplied on the case information statement. All amendments to the statement shall be filed with the court no later than 20 days before the final hearing. The court may prohibit a party from introducing into evidence any information not disclosed or it may enter such other order as it deems appropriate…

  • R. 5:5-4 Motions in Family Actions

(a) Motions. Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions. When a motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement.
(b) Page Limits. Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), a certification in support of a motion shall not exceed fifteen pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed twenty-five pages. A reply certification to opposing pleadings shall not exceed ten pages.
(c) Time for Service and Filing. A notice of motion, except for motions brought pursuant to R. 1:10-3 and motions involving the status of a child, filed more than 45 days after the entry of the written judgment of divorce or annulment, other than an ex parte motion, shall be served and filed, together with supporting affidavits and briefs, when necessary, not later than 29 days before the time specified for the return date. For example, a motion must be served and filed on the Thursday for a motion date falling on a Friday 29 days later. Any opposing affidavits, cross-motions or objections shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week. If service is made by mail, 3 days shall be added to the above time periods.
(d) Advance Notice. Every motion shall include the following language: NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a cross-motion. Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves.The response and/or cross-motion must be submitted to the court by a certain date. All pre-divorce motions, all enforcement motions (also known as motions for enforcement of litigant’s rights: R. 1:10-3), or motions that deal with the status of children must be filed 16 days before the return date. (Since most motion days are on a Friday, motion papers must be filed on the Wednesday 16 days before.) Therefore, a response and/or cross motion must be filed eight days (Thursday) before the return date. All post-judgment motions, including all motions for modification of alimony, child support, custody, or parenting time/visitation must be filed 29 days (Thursday) before the (Friday) return date. Therefore, a response and/or cross-motion must be filed 15 days (Thursday) before the return date. If you mail in your papers you must add three days to the above time periods.
Response to motion papers sent to the court are to be sent to the following address: ______________. Call the Family Division Manager’s office (_______) if you have any questions on how to file a motion, cross-motion or any response papers. Please note that the Family Division Manager’s office cannot give you legal advice.
(e) Tentative Decisions. In any Family Part motion scheduled for oral argument pursuant to this rule, the motion judge prior to the motion date may tentatively decide the matter on the basis of the motion papers, posting the tentative decision and making it available to the parties. After such tentative decision has been made, unless either party renews the request for oral argument, that request shall be deemed withdrawn and the tentative decision shall become final and shall be set forth in an appropriate order. If, however, either party renews the request for oral argument, the motion shall be argued as scheduled. This tentative motion decision process shall be subject to the general supervision of the Family Presiding Judge of the vicinage.
(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

  • R. 5:6A Child Support Guidelines

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.
A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines.

  • R. 5:6B Cost-of-Living Adjustments for Child Support Orders
  • R. 5:7-2 Application Pendente Lite

(a) Support Pendente Lite. Applications for support, counsel fees and costs pendente lite, whether made with the complaint or by notice of motion thereafter, shall be accompanied by a completed case information statement in the form set forth in Appendix V to these rules pursuant to R. 5:5-2. If this form has previously been submitted, amendments thereto must be filed with the court no later than eight days prior to the motion hearing date. A completed case information statement shall accompany the response to the application pendente lite. If previously submitted, amendments thereto must be filed with the court no later than eight days prior to the hearing date.
(b) Restraints; Contempt. If pendente lite relief is sought, by way of preliminary restraint or to hold a party in contempt, the application shall be on petition and order to show cause.

  • R. 5:7-4 Alimony and Child Support
  • R. 5:7-5 Failure to Pay; Enforcement by the Court or Party; Income Withholding for Child Support

Suspension and Revocation of Licenses for Failure to Support Dependents; Execution of Assets for Child Support; Child Support Judgments and Post-judgment Interest

  • R. 5:7-6 Consolidated Enforcement and Modification Proceedings
  • R. 5:8-1 Investigation Before Award

In family actions in which the court finds that the custody of children is a genuine and substantial issue the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5. During the mediation process, the parties shall not be required to participate in custody evaluations with any expert. The parties may, however, agree to do so. The mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. The court, on good cause shown, may extend the time period. The date for conclusion of mediation shall be set forth in any Case Management Order(s). If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both. In other family actions the court may, if the public interest so requires, order such an investigation. The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require. Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides. Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.

  • R. 5:8-5 Custody and Parenting Time/Visitation Plans, Recital in Judgment or Order

(a) In any family action in which the parties cannot agree to a custody or parenting time/visitation arrangement, the parties must each submit a Custody and Parenting Time/Visitation Plan to the court no later than seventy-five (75) days after the last responsive pleading, which the court shall consider in awarding custody and fixing a parenting time or visitation schedule. Contents of Plan. The Custody and Parenting Time/Visitation Plan shall include but shall not be limited to the following factors:
(1) Address of the parties.
(2) Employment of the parties.
(3) Type of custody requested with the reasons for selecting the type of custody.
(a) Joint legal custody with one parent having primary residential care.
(b) Joint physical custody.
(c) Sole custody to one parent, parenting time/visitation to the other.
(d) Other custodial arrangement.
(4) Specific schedule as to parenting time/visitation including, but not limited to, weeknights, weekends, vacations, legal holidays, religious holidays, school vacations, birthdays and special occasions (family outings, extracurricular activities and religious services).
(5) Access to medical school records.
(6) Impact if there is to be a contemplated change of residence by a parent.
(7) Participation in making decisions regarding the child(ren).
(8) Any other pertinent information.
(b) The court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children.
(c) Failure to comply with the provisions of the Custody and Parenting Time/Visitation Plan may result in the dismissal of the non-complying party’s pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.

  • R. 5:8A Appointment of Counsel for Child

In all cases where custody or parenting time/visitation is an issue, the court may, on the application of either party or the child or children in a custody or parenting time/visitation dispute, or on its own motion, appoint counsel on behalf of the child or children. Counsel shall be an attorney licensed to practice in the courts of the State of New Jersey and shall serve as the child’s lawyer. The appointment of counsel should occur when the trial court concludes that a child’s best interest is not being sufficiently protected by the attorneys for the parties. Counsel may, on an interim basis or at the conclusion of the litigation, apply for an award of fees and costs with an appropriate affidavit of services, and the trial court shall award fees and costs, assessing same against either or both of the parties.

  • R. 5:8B Appointment of Guardian ad Litem

(a) Appointment. In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child. A guardian ad litem may be appointed by the court on its own motion or on application of either or both of the parents. The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon. In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1. Interviewing the children and parties.
2. Interviewing other persons possessing relevant information.
3. Obtaining relevant documentary evidence.
4. Conferring with counsel for the parties.
5. Conferring with the court, on notice to counsel.
6. Obtaining the assistance of independent experts, on leave of court.
7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
8. Such other matters as the guardian ad litem may request, on leave of court.
(b) Objection or Refusal of Appointment. A proposed guardian ad litem shall have the right to consent or to decline to serve as such, notice of such decision to be in writing to the court with copies to counsel. The parties shall have the right to object to the person appointed as guardian ad litem on good cause shown.
(c) Term. The term of the guardian ad litem shall be coextensive with the application pending before the court and shall end on the entry of a Judgment of Divorce or an Order terminating the application for which the appointment was made, unless continued by the court. The guardian ad litem shall have no obligation to file a notice of appeal from a Judgment or Order nor to participate in an appeal filed by a party.
(d) Fee. The hourly rate to be charged by the guardian ad litem shall be fixed in the initial appointing order and the guardian ad litem shall submit informational monthly statements to the parties. The court shall have the power and discretion to fix a retainer in the appointing order and to allocate final payment of the guardian ad litem fee between the parties. The guardian ad litem shall submit a certification of services at the conclusion of the matter, on notice to the parties, who will thereafter be afforded the right to respond prior to the court fixing the final fee.

Content of Pendente Lite Motions

Most pendente lite motions include the following requests:

  • Contribution to monthly Schedule A, B and C expenses as set forth in the Case Information Statement. This can be accomplished by direct payment or by way of alimony, child support, or any combination of the three, with varying tax consequences.

Practice Tip: There are some instances when it could be damaging to allow the supporting spouse to be obligated to pay all of the Schedule A and B expenses. There is no incentive for the supported spouse to budget under those circumstances. This could have the undesired effect of prompting the supported spouse to spend excessively, or to fail to cut back on spending when current economic conditions warranted. While this is not necessarily problematic when the couple continues to live together under the same roof, it becomes quite the problem following separation, when the supporting spouse has roof and transportation expenses of his own. Another potential problem in utilizing this pendente lite approach post-separation, even if you are representing the recipient spouse, is that the adjustment to the realities of a post-divorce diminished income base is unnecessarily and unrealistically prolonged. This creates problems in the minds of any children, as well, as they to need to become acclimated to a different economic situation. The best approach in certain circumstances is to have the supporting spouse pay a certain dollar amount so that the supported spouse knows what the budget will be each month, so the household may be run within it.
In cases where family economic resources are tight, with credit cards being employed to bridge the gap, your pendente lite support request should require that, at the very least, the minimum payment be made on all credit cards every month to avoid unnecessary an avoidable finance charges. This also has the positive effect of preserving the parties’ credit rating pending litigation. It is also important to argue for well-reasoned allocations between child support and alimony, giving due consideration to the net tax effect of various support scenarios, which you can advance to the Court. Always attempt to maximize available family income through the allocation of alimony and child support by taking into account the tax brackets of each party. Allow the spouse who will receive the greatest benefit from tax deductions to take them, while seeking some other concession in return.

  • Continuation of medical and dental insurance and contribution to the payment of any unreimbursed health care expenses; Continuation of all other insurance, including homeowners, life and automobile policies.

Practice Tip: The importance of maintaining all insurances cannot be over-emphasized. If your client believes that there is a danger that the supporting spouse would allow policies to lapse, or even delete the supported spouse and children as beneficiaries, application should be made for a pendente lite alimony award to include the costs associated with the various insurance premiums, and then have the bills directed to your client for payment. This would have the beneficial effect of guarding against the potential for uncovered catastrophic loss while improving your client’s peace of mind.

  • Reasonable restraints regarding the dissipation, encumbrance or transfer of marital assets;

Practice Tip: Be careful not to routinely engage in wide-ranging restraints or preliminary injunctions with respect to the use of various accounts. Some higher earners often have minimal salaries, but huge bonuses that arrive all at once at the beginning of the new year or perhaps in two payments (one at the end of the year and another one at the beginning of the next year. Consequently, marital lifestyles are maintained by using the savings from these bonuses. Assuming that we are attempting to maintain an approximation of the same lifestyle pendente lite, the payer client�s ability to spend this money pendente lite must likewise be maintained. The relatively high expenses, characteristic of such marital lifestyles, cannot be met unless such savings accounts are used, as they were during the marriage.
This being said, it is always important that restraints from encumbering assets be requested, because spouses will often attempt to borrow against marital assets to artificially bolster their spending power pendente lite. This should only be allowed if both parties agree or upon order from the court, however, the practice should generally be discouraged.
The restraints sought should prevent both parties from taking on any additional loans of any kind, as well as directing both not to apply for or receive any additional credit. Any digression from these restraints should be done strictly through mutual consent of the parties following consultation with their attorneys and financial advisors, if need be. When putrid market conditions wreak havoc with the pendente lite family economics, belt-tightening must be employed the same way it would have been had the family remained intact. For most families, this typically involves instituting cutbacks, rather than liquidating assets.
Yet another useful restraint that can be applied for pendente lite involves restraining the parties from changing their investments. As a marriage is being dissolved, one party should not be allowed to have the last word on all of the investment decisions without consulting with and agreeing to them with the other party.

  • Payment of attorney fees and costs in accordance with R. 5:3 5, including an evaluation of any prospective services likely to be performed; and
  • Appointment of experts, if necessary, in accordance with R. 5:3 3, including provisions for the payment of their fees.

Other relief can include requests for temporary custody and parenting plans, a best interests investigation, complimentary custody/parenting mediation, and the appointment of Counsel for Child, Guardian ad Litem or Parent Coordinator; exclusive possession and use of marital home, a particular vehicle, or any other specified marital property; the return of or accounting for any marital property that had previously been removed; various forms of declaratory relief; the continuation of any duties regarding marital properties, such as continuing in the role of landlord or caretaker; and the production of discovery and execution of authorizations and releases.
Practice Tip: One nice discovery piece, which can be accomplished pendente lite, is to request that the court compel each party to provide a list of all assets in his or her name, or in which he or she has an interest within 5 days. Since fair to include certain assets on the parties CIS can typically be explained away later on by an assertion that the CIS in question was highly preliminary, court ordered directives are likely to provide a more comprehensive list. Another pendente lite discovery request would specifically require both parties to confirm and disclose the existence and location of any safe deposit boxes they might have, or have control of, along with an inventory of the contents. Obviously, there are some situations where the should be done pursuant to an ex parte order to show cause. This would have the effect of cutting down on the possibility of the box being cleaned out in reaction to the discovery request.
On yet another note, it is wise to strongly consider asking that all support payments be made payable through Probation. While the various Probation Departments are not without their problems, months your client’s account is set up, support payments are typically monitored quite effectively. Clients our typically quite pleased to know that probation will enforce their support order, while sparing the client the costs of filing a support motion.

Are Case Information Statements Necessary When Applying for Pendente Lite Support?

The CIS with all required attachments is typically the most important attachment to a pendente lite motion. As a word of caution, the CIS can be used against the client’s interests if care is not taken in completing it. Do not give a blank CIS to the client and then publish it for all the world to see the client’s raw work product. This could lead to disaster. The fact of the matter is that most raw CIS submissions are filled with potentially damaging errors.
Instead, there are steps that should be pursued before the client fills in the CIS and steps to be taken thereafter, prior to arriving at a smooth draft. One useful practice involves having the client bring the most recent state and federal tax returns, W-2s, 1099s, and three sequential paystubs from all employment with them to an office consultation early in the process. These documents should then be copied against an 8 ½ x 11 background. The lawyer or paralegal should then go over the documents with the client, being careful to circle any entries, such as certain payroll deductions and itemized deductions on the tax returns, which warrant clarification.
Many clients are uncertain about what some of their payroll deductions are and, more often than not, the legends explaining them are not attached to the pay stubs or are undecipherable. Draw straight lines from each circled entry to the margin of each page, while asking the client to explain each item, and print the explanation for each in the margin at the end of the corresponding line. Clients may well have to consult their tax preparers and payroll departments to accomplish this. If the legends are available, which explain the various payroll deductions, they should be a part of your file.
Another helpful practice involves providing your client with a copy of a Notice to Produce Documents, to assist them in assembling documents they have, and as a guide to discovering the documents they do not have but need. If some of the requested documents are in the other parties’ possession, we not only have a guide as to what to include in a Notice to Produce to be propounded upon the other party, but we also have the beginnings of a Rider to attach to our client’s CIS, setting forth all the documents that we did not have access to in preparing our client’s CIS.
When the filled-in CIS is received back from the client, it must be carefully reviewed to ensure that the CIS reflects the client’s real circumstances, as sought to be presented and as will be demonstrated through proofs.
The client must be advised that, although the CIS may be amended during the course of the case, every time the CIS is completed, it must be accurate to the extent of the client’s reasonable perceptions, as of the date of completion. After all, Case Information Statements are completed and signed under oath and under penalty of perjury. Clients must be made aware that the submission of knowingly erroneous sworn documents can be used for impeachment purposes at trial and to impugn the client’s credibility.

What to Look Out For in a Raw Case Information Statement Review

Your review of the client’s raw Case Information Statement (and the other party’s filed one) should include the following:

  • Comparison of the income information on the CIS with the income information on the tax returns
  • Comparison of the tax payments and deductions as set forth in the CIS with that which appears on the filed tax returns
  • Comparison of the last three paystubs and projections of annual earnings for the current year (based upon year-to-date figures) with year-end earnings, as evidenced by the prior year’s filed tax returns, W-2s and 1099s
  • Comparison of the income earning assets appearing on the CIS assets balance sheet with the actual income set forth on the previously filed tax returns
  • Comparison of the unreimbursed business deductions appearing on the filed tax returns with the transportation costs appearing on Schedule B of the CIS
  • Comparison of the itemized monthly tax reserve appearing on Schedule C of the CIS with the annual federal, state and local taxes as evidenced by the filed returns
  • Analysis of any bonus computation, with possible carry over to the following year for tax purposes
  • In appropriate cases where you already have the other party’s CIS, review of any direct payments claimed to have been made by the payor spouse, which are or will be included or omitted in the payee spouse’s CIS, such as roof, automobile, medical and educational expenses
  • Recognition of expenditures appearing on Schedules A-C of the CIS, where there might not have been similar expenditures in the past, conversely, recognition of any previously existing recurring expenses which may have been omitted on the current CIS (these are of course interview questions for your client, concerning his or her CIS, and about the other party’s filed CIS)
  • Comparison of the monthly itemized expense for debt service appearing on Schedule C of the CIS with the existing credit card debt appearing on the CIS liabilities balance sheet, ensuring that “double-dipping, does not occur
  • Comparison of the monthly itemized expense for car payments appearing on Schedule B of the CIS with any existing car loan appearing on the CIS liabilities balance sheet, ensuring that “double-dipping, does not occur
  • Comparison of the itemized monthly costs for life issuance appearing on the CIS with the total life insurance cash surrender values, which were accumulated during coverture
  • Comparison of the monthly savings component appearing on the CIS with the assets actually accumulated during coverture

Remember, the CIS presents the first impression to the Judge of your client’s initial economic needs. It is also the initial repository of information about a party’s ability to pay. Your client’s (or the other party’s) pay stubs may not accurately set forth earnings for the current year, which will necessarily reoccur the following year. If separate pay stubs are not provided for bonuses, there is clearly the potential for inaccuracy going forward, since the bonus may not be the same next year. The pay stub may also reflect both an old salary level and a salary increase during the same year. It is important to use riders to explain exactly what the income means, as well as the actual periodic regularly reoccurring income level.
In fact, as a general rule, if anything in your client’s CIS is potentially unclear, always employee the use of schedules and riders to clarify and justify the numbers provided. Define your client’s terms so that the CIS cannot be to impeach her client’s credibility in the future. Frequently, the provision of information is estimated, particularly toward the beginning of your case. Make sure that you indicate on the CIS the instances in which your figures are estimated, by keying-in the letters “est”,next to your entries. Another approach, where estimations may be too attenuated, is to include the letters “TBD”, (to be determined) next to any blank entries that might otherwise be filled in.
It is important to consider whether you want to distinguish between the needs of a spouse and the needs of children in the CIS. This may be difficult to accomplish early on in the pendente lite support phase of your case. In cases where the family continues to live at the same residence, making a distinction between spousal and child-related expenses may be unnecessary, since your client is still living in an intact family setting. In that case, what was done during the precomplaint household is what should arguably continue. Case Information Statements filed when the family is still living together provide a useful baseline for marital lifestyle analyses. One might even consider drafting an adjunct CIS reflecting what the intact family budget was, even after the parties have separated.
The CIS requires us to accurately identify the number of people whose needs are to be addressed by the support request. After your client reviews the credit card statements, check register entries, etc. in order to get a handle on family expenses, the approximations arrived at are likely reflective of expenses relating to the intact family. If your client is attempting to approximate a budget for the client living separately, with or without children, adjustments need to be made. As the case gets older, it is increasingly important that these adjustments be made. One useful feature in allocating expenses, particularly when you are representing the payor spouse, is that you can clearly illustrate to the judge that your client has expenses too.
The allocation of expenses between parent and children also facilitates post judgment review on applications for modification to both spousal and child support (if ease of future review is what you are going for).
As early as the pendente lite stage, the Court must separate the sums needed for spousal support, versus those sums representing the needs of the children. Consider using the additional budget columns appearing on the Schedule A-C section of the CIS to itemize your client’s needs. It is our obligation to present information to the Court, by way of evidence and testimony, supportive of the claim that certain expenses reflect the needs of the spouse versus those of the children. The Court is required to make the determination of alimony before entering an award for child support. Pressler, Current N.J. Court Rules, Appendix IX A to R.5:6A, “Considerations In the Use of Child Support Guidelines; 19, Determining Child Support and Alimony or Spousal Support Simultaneously, (2004). If we fail to present to the Court a basis upon which to make the allocation between alimony and child support, then we have failed to properly present the alimony issue.
There is no easy way to allocate a child’s expenses. It is much easier to subtract out the expenses of the other spouse. The Comments to the Child Support Guidelines discuss their underlying economic basis. However, the Guidelines cannot be mechanistically applied to calculate what portion of a family budget represents the child’s needs, and what portion represents those of the dependent spouse. While the financial considerations of the Guidelines can certainly be used as a reference point, we should shy away from the use of arbitrary percentages to calculate allocations, without some further persuasive proofs or testimony.

Calculating Costs in Pendente Lite Applications

  • Roof Expenses

Avoid using an arbitrary percentage of the current housing costs. If three people are living under the same roof, do not assume that your client’s expenses are simply one third of the total. In thinking through this issue, consideration of the Child Support Guidelines may be helpful. They assume, as the number of children increases, that the marginal cost associated with each child does not rise in direct proportion. The needs of the dependent spouse are constant, regardless of the number of children. Do not forget about the many pleasures of home ownership, including the costs of broken plumbing, snow removal, leaky roofs, and yard work. There are often cases where one spouse routinely did many of these things. (we have even heard a few husbands actually offer to continue doing lawn care and household maintenance, in lieu of paying alimony). Will the fact of this lost handy spouse result in additional expenses for the remaining spouse? Typically, it would.
In most households, continuing expenses associated with equipment and furnishings are quite predictable. Clients often overlook many of them, however. While the new Maytag washer and the wall-length entertainment unit with flat-screen TV purchased last year may quickly come to mind, the smaller items such as bedding, window treatment and knickknacks often miss the cut. They do, however, add up.

  • Transportation

Your client’s car payment, leasing costs, registration, and license fees (one-month pro rata portion, as with all non-monthly expenses), insurance, maintenance, fuel, and commuting expenses, if applicable, are all included here. Identify the type of vehicle your client has typically driven over the past three to five years. Consider making adjustments if the car currently in use is typical of the marital lifestyle, or if it’s an out-of-repair clunker, necessitated by current conditions. Consider also (for future reference) if it will be replaced during the alimony term. Remember that pendente lite applications do not happen in a vacuum. The ultimate desired outcome of your case must also be reflected and consistent with your pendente lite application, including the supporting CIS.
Do not arbitrarily use a percentage of the automobile insurance cost (which is more than likely covered under a multiple car family policy) to arrive at your client’s allocation. The cost to insure your client’s car on an individual policy and in light of the driver’s past experience will determine the actual cost of the automobile insurance. Both parties stand to have significantly different premiums when separate policies are used post-dissolution.

  • Personal Expenses

I will first mention to always include a savings component, if appropriate. This is often omitted, even on final versions of the CIS. Determine if savings was a regular part of the marital lifestyle or is needed to maintain lifestyle later on. If so, it should definitely be added as a budget item. See Khalaf v. Khalaf, 58 N.J. 63 (1971).
Concerning expenses in general, particularly when you are representing the supported spouse, it is important to subtract any such expenses that are more closely related to your client. This is easier done with some consumption categories than with others. For example, a reasonable food budget for individual adults may vary widely on a case-by-case basis. Food budgets for children may be approximated by considering the number of children, their known eating habits, all in the context of the family’s overall eating tendencies.
As the Zen saying goes, your clients must train themselves to see their consumption habits through new eyes. Otherwise, a lot could get overlooked. Don’t undervalue the costs of vacations, even short getaways, entertainment and gifts. Direct your client to go back several years to arrive at an average representative of the marital lifestyle.
How does one best present proofs of lifestyle? The more precise the proofs, the easier it will be for the trial court to make a decision in your favor. Obtain the records that were used by the family, reflective of money spent prior to the separation, e.g., credit card statements, check registers, and the like.

  • Client Mindset

Another consideration in preparing the budget contained in the initial CIS concerns the fact that your client may not feel favorably disposed to making rational decisions with regards to their post-divorce life, especially early on in the pendente lite phase. The pendente lite budget, therefore, may not fairly and accurately address the actual post judgment needs of your client. The Court Rules anticipate that the CIS will be amended, and further mandate that parties are under a continuing duty to revise the statements as needed. R.5:5 2(c). The budget utilized in support of a pendente lite motion should therefore be annotated with language to the effect that the budget is subject to change.
It is usually necessary to prepare multiple budgets in any case involving alimony. The pendente lite budget will almost always differ from the budget presented at Trial. Clients should begin focusing on their post judgment plans early on, especially when the parties are still living under one roof. Will the marital home be sold? If not, who will remain? What will future employment to involve? How will childcare be handled?

  • Other Considerations

Remember that the pertinent measuring unit for the marital lifestyle is not the lifestyle enjoyed at the date of the filing of the complaint, but rather the lifestyle enjoyed until the parties separated. Hughes v. Hughes, 311 N.J. Super. at 31. Therefore, if your client is the monied spouse and there has been a significant increase in income between separation and the filing of the complaint, waste no time spelling this out in your pendente lite application. Emphasize the pre-separation level, rather than current income picture. If, on the other hand, you represent the supported spouse, you should consider relying on the language contained in Guglielmo v. Guglielmo, 287 N.J. Super. 337 (App. Div. 1996), stressing what some have called the marital momentum theory.
In making our pendente lite applications, sometimes issues of underemployment may arise. If earning capacity is in issue, then you might need to retain employment and vocational experts to evaluate the party’s actual capacity to earn, and this can be requested in the context of your PL application. Concerning claims of voluntary underemployment, see Dorfman v. Dorfman, 315 N.J.Super. 511 (App. Div. 1998).

How Does One Pursue Pendente Lite Counsel Fee Awards?

  1. Understand the statutes, court rules and case law authorizing a pendente lite award of counsel fees.
  2. Provide adequate financial information and argument so that the Court can conclude that an award of pendente lite counsel fees is reasonable and just.
  3. N.J.S.A. 2A:34 23:
    The court may order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just. In considering an application, the court shall review the financial capacity of each party to conduct the litigation and the criteria for award of counsel fees that are then pertinent as set forth by court rule [R.5:3 5(c)]. Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.
  4. Provide a properly drafted affidavit of services along with your pendente lite application.
  5. Be reasonable in your billing practices.
  6. Challenge pendente lite counsel fee requests by the opposing party where the requirements for making such an application have not been met.
  7. Challenge the amount of the opposing party’s request, if unreasonable.
  8. Let your CIS create a clear picture of the relative financial circumstances of the parties.
  9. Consider requesting the sale or encumbrance of marital assets pendente lite, in order to fund the litigation when no other sources are readily available.
  10. Raise the relative “reasonableness and good faith of the positions advanced by the parties’ argument [R. 5:3 5] when the bad position or behaviors of the other party calls for it.