8.1.2019

A well-drafted pendente lite motion can and should be viewed as the foundation of your case. In order to construct a good pendente lite motion you need to know your issues. For example, is your issue college costs and tuition or is your issue custody and parenting time?

Sometimes your pendente lite motion will be an omnibus motion, in other words, the “kitchen sink” motion. This is the type of motion where you ask for everything. For example: payment of the home mortgage, health insurance, car lease and insurance, Schedule C items, etc. Remember, not every motion is a “kitchen sink” motion. In fact, you want to try to avoid this type of motion if you can. However, often times, particularly if the pendente lite motion is being filed simultaneously with the Complaint, you may need to address multiple issues.

Case Information Statement

The Case Information Statement is the foundation of the pendente lite motion.

Have your client go back through his/her expenses for the year. Review charge card statements and bank statements for at least the past six months so that the client can certify to the dollar amounts in the Case Information Statement. Your client needs to recreate day to day expenses. Find the recurring expenses, including utilities, memberships, and tutors.  Get an average for things like food, clothes, etc.

Make sure the client has a summary of these issues in memo format in one place so that it is easy to refer to as needed. The last thing you want is to be in a deposition or in trial and to have your client be asked about their CIS and not be able to give a substantive and complete answer. Instead your client will gain tremendous credibility when they can answer how they came up with the dollar amounts.

Drafting the Pendente Lite Motion

Notice of Motion. The Notice of Motion is the client’s “wish list.”  In other words, your client is asking for what they need in order to function over the next months during the divorce proceeding.  The “wish list” needs to be reasonable and tailored to the parties’ standard of living prior to the filing of the divorce.  Don’t overshoot.  Both you and your client will lose credibility with the Court.

Proposed Form of Order. If the judge agrees with your position, you need a good proposed order so that the Court does not have to recreate it. 

Client Certification. The certification is your client’s story and a description of why he/she is asking for the requested relief. You want your client’s story to be clear, articulate, and easy to understand for the Court.  In other words, in the client’s certification you may want to draft certain subheadings for a preliminary statement, or for the various issues in your matter, like overhead expenses, child support, custody, Schedule C expenses, tax issues, etc. How do you put together your client’s certification? You need to debrief your client!  Ask your client for a checklist of what they need and the Notice of Motion should be the outline.

The Case Information Statement is another excellent example of where to go to for the requested relief in your motion and will assist you in drafting an outline and the Notice of Motion. The client should review the Notice of Motion and write down his/her thoughts based on the Notice of Motion.

Depending on the client, you will get a variety of responses. Some clients will simply give you comments in one page, other clients will give you a single spaced 60 page memo.  Speak to your client often and manage expectations.

This is why the debriefing with your client is so important – your client is in an emotional state and divorce can often be a traumatic experience. Your client may want to talk about certain issues, but these issues may not be relevant, or appropriate, for a pendente lite.  Good attorneys know how to sift through the relevant issues.  For example, your client may want to include references or exhibits to highlight a former spouse’s affair. But be careful. There is a time and place for everything.  Do not get into histrionics. Think instead of how to powerfully use these examples to your advantage if necessary.  And for those of you who like a “gotcha” moment, sometimes you may be tempted to save certain issues to raise in a reply. But remember all of the issues for which you are seeking relief have to be in your Notice of Motion. You cannot ask for additional relief in your reply. The distinction is that if you know that the other party may say something that’s untrue, you don’t necessarily need to address that upfront, you can address issues like that in your reply. 

Tip for social media. It is not necessary to put all the text messages into the certification and/or exhibits to address on every single text; highlight the best examples. Also, sometimes social media can be relevant to custody or parenting time issues. You may want to show the ex-spouse's irresponsibility or insensitivity to issues involving the children. Use this space wisely – don’t make it a rant for your client – the judge does not want to see it because it doesn’t matter more often or not.

Remember: do not lose credibility. If you lose credibility, your firm does too. 

You want every judge and law clerk to know that when the motion they are getting from your office is in order, it has all the necessary exhibits, and it appropriately addresses the relevant issues.

Tip for exhibits. You may want to bold them in the certification so that they pop out and can be easily identified by everyone. Make sure that your work is neat, is concise and you put it together properly. Use tabs, make an index if necessary if you have large exhibits and always remember to refer to the Rules of Court.

At the end of the day, if you file a well written motion, sections of your certification literally may be cut and pasted into the Court’s order and decision – you want to make it easy for the Court to agree with your position.

Certification of Services. Make sure you request fees and your file the Certification of Services with the Notice of Motion. In your Certification of Services, discuss the tenor of the case and why your client has incurred excessive fees that the other party should be required to pay.

If you are interested in finding out more about pendente lite motions, contact Angela Scafuri or any member of the Wilentz Family Law Team at 732-352-9871. 

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