Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing. Pendente lite is latin for “while the action is pending.” Pendente lite orders are not intended to settle the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case. They are supposed to tide things over, so to speak, until the rest of the case can be decided. There are various things that your New York City or Long Island Divorce Lawyer might ask the court to rule upon in a pendente lite motion. Motion practice usually consists of motions, opposition, cross-motions and any reply papers.
Custody and parenting time might be a part of a pendente lite order. This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children. Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved. The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon. A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time. Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.
Exclusive use and occupancy of the marital residence might be requested. Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property. The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties. In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate. Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property.
Related to exclusive use and occupancy requests are Orders of Protection and a request for an order for the carrying charges of the property to be paid while the divorce is pending. Both of these items are frequently made a part of a Pendente Lite motion. Temporary Orders of protection should be based on what is called a Family Offense being properly alleged. An order of protection can be in favor of a party and/or their children depending on the circumstances. Please see my other blog entries and website for more details on Orders of Protection and Family Offenses.
Temporary child support and temporary maintenance are two of the most frequent requests in a pendente lite motion. Both of these I have discussed in greater detail in other blog entries and my website. If you are interested in more information about child support or maintenance, feel free to call my office. Currently, under the law in New York, there is a presumptive amount of maintenance that should be ordered while a case is pending. The court may deviate from this award but only upon consideration of seventeen factors enumerated in the statute. Likewise, there is a formula for the guideline amount of child support. In the Second Department, in fixing Pendente Lite support, the Court is not required to apply the Child Support Standards Act amount but may rely on it for guidance. Usually the court will consider the guideline amount and very often apply that. If there is going to be a deviation the Court should look to the factors enumerated in the statute that allow for it. A reason to deviate from the guidelines that is more likely to come up in a pendente lite or temporary award, than a permanent award, is the duplication of expenses like shelter costs which would be a part of any carrying costs ordered.
Child care expenses, educational expenses, uncovered health expenses, auto expenses, temporary counsel fee awards, expert fees, and other items may be ruled upon by a court in a Pendente Lite motion. The foregoing is not meant to be an exhaustive list but rather an outline of the kinds of issues that might be ruled upon while the divorce case is pending. Requesting or opposing a Pendente Lite motion is an important and tricky practice. This office has experience on both ends of Pendente Lite motions. Feel free to call about a free initial consultation. It would be our pleasure to speak with you about it.