How Should My Lawyer Prepare A Motion For Pendente Lite Relief?

As a divorce lawyer with a law firm in East Brunswick, New Jersey for the past few decades, my associate attorneys and I have filed countless motions for pendente lite relief on behalf of our clients. As explained in a previous blog by my law firm, pendent lite is the period between the filing of the Complaint for Divorce in a New Jersey Family Court until the case is ultimately resolved (either by way of a settlement or a trial). The law of pendente lite mandates that both spouses must maintain the status quo of the marriage during this period of time. If at any point during your divorce you discover that your spouse has made changes to the existing marital situation with respect to your children or finances, you must immediately contact your lawyer to have the situation addressed.

Examples include a sudden refusal to pay certain household bills that your spouse was always responsible for. Your spouse dropping you from an insurance policy is another common ground for such a motion. If the husband and wife are separated, pendente lite, then a motion may be required to establish a temporary custody and parenting time arrangement. Finally, attorneys’ fees for the necessity of having had to pay your lawyer to file this motion should be sought as well.

Such an application begins with a Notice of Motion for Pendente Lite Relief. This document specific states the outstanding issues to be addressed by the judge assigned to your case.

Next is your Certification in which you provide specific facts about your case and why you are asking for the court’s assistance. The Certification shall also include any evidence (i.e., exhibits) to help prove your allegations.

Then a Proposed Form of Order is generated with the hope that, with a successful motion, the judge will sign this document that then results in an official Court Order. A Certification of Service is required so that the court knows that your spouse is on “notice” of the application. Finally a Certification of Services is attached in order to make a successful claim for the lawyer fees that you incurred during this process.

Below, please find sample, hypothetical complete “motion package” containing all of the forgoing legal documents. My office is here for you if you are facing a divorce.

Edward R. Weinstein, Esq.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Weinstein Professional Building

214 Highway 18 North, Suite 2A

East Brunswick, New Jersey 08816

732-246-0909

Attorneys for Plaintiff, KATIE HOLMES

VIA LAWYER’S SERVICE

TO: TOM CRUISE (Defendant Pro-Se)

1 Main Street

East Brunswick, New Jersey 08816

SIR/MADAM:

PLEASE TAKE NOTICE, that on Friday, March 14, 2016, at 10:00 in the forenoon or as soon thereafter as counsel may be heard, the undersigned, LAW OFFICES OF EDWARD R. WEINSTEIN, LLC (EDWARD R. WEINSTEIN appearing) attorneys for the Plaintiff, Ms. KATIE HOLMES, shall move before the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, located at 120 New Street, New Brunswick, New Jersey, for an Order as follows:

1. 1. Compelling Defendant to pay unallocated support to Plaintiff in the amount of $30,268 per month, retroactive to February 18, 2014, payable through the Middlesex County probation department;
2. 2. Compelling Defendant to pay $10,325.64 for the balance of outstanding utility bills associated with the marital residence;
3. 3. Compelling that the marital residence be placed for sale immediately by a mutually agreed upon real estate broker;
4. 4. Awarding Plaintiff exclusive use and occupancy of the marital residence;
5. 5. Requiring Defendant to be solely responsible for medical and hospitalization insurance on behalf of the Plaintiff and the unemancipated children of the marriage, SURI CRUISE;
6. 6. Requiring Defendant to be solely responsible for all unreimbursed medical, dental, hospitalization, psychiatric and prescription drug expenses for Plaintiff and the unemancipated children of the marriage, SURI;
7. 7. Compelling Defendant to maintain Plaintiff as the sole and exclusive beneficiary of any and all life insurance coverage that he maintains either individually or through the course of his employment, to keep same in full force and effect during the pendency of this action and to provide proof of all insurance coverage currently in effect;
8. 8. Preventing Defendant from destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties;
9. 9. Preventing Defendant from selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of either party, whether personal or real, and whether separate or jointly held;
10. 10. Preventing Defendant from disposing, giving up or transferring possession of books, papers, documents or other materials concerning the Defendant and particularly his financial affairs;
11. 11. Compelling Defendant to pay the sum of $4,000 as and for pendente lite counsel fees;
12. 12. Awarding any such further relief as the Court deems equitable and just.

PLEASE TAKE FURTHER NOTICE that oral argument is hereby requested if timely opposition is filed;

PLEASE TAKE FURTHER NOTICE THAT a Notice to Litigants is attached hereto,

as required by R. 5:5-4(d), and that a proposed form of Order is submitted pursuant to R. 1:6-2.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Attorneys for Plaintiff, Ms. KATIE HOLMES

_________________________________________

By: EDWARD R. WEINSTEIN

Dated:

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 motions must be filed on the Tuesday 24 days before the return date. A response and/or cross motion must be filed fifteen days (Thursday) before the return date. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than eight days (Thursday) before the return date. No other response is permitted without permission of the court. 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: Superior Court, Family Intake Reception Team, Middlesex County, 120 New Street, New Brunswick, NJ 08901. Call the Family Division Manager’s office (732-519-3205) 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.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Attorneys for Plaintiff, Ms. KATIE HOLMES

BY: ________________________________________

EDWARD R. WEINSTEIN

Dated: February 18, 2016

Edward R. Weinstein, Esq.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Weinstein Professional Building

214 Highway 18 North, Suite 2A

East Brunswick, New Jersey 08816

732-246-0909

Attorneys for Plaintiff, KATIE HOLMES

I, KATIE HOLMES, of full age, hereby certify, as follows:

1. 1. I am the Plaintiff in the above-captioned matter. The facts as set forth herein are

within my personal knowledge. I submit this Certification in support of my Motion for pendente lite support so that I am able to pay my basic monthly living expenses and care for my children.

BACKGROUND

1. 2. The Defendant and I were married on June 22, 1995 in a religious ceremony in Brooklyn, New York. One child was born of the marriage, to wit: SURI CRUISE (Age 6).
2. 3. Throughout our marriage Defendant and I have had a good relationship. However two years ago Defendant had heart surgery and his demeanor towards me drastically changed thereafter. Defendant has become cold towards me after his surgery and began abusing alcohol and pain killers.
3. 4. In the beginning of January of 2016, Defendant dropped the bombshell on me that he would be leaving the marital residence. I came to discover that for several months prior he had been having an affair with another woman and that he was abandoning our 20 year marriage and our children for her. Defendant moved out of the marital residence on January 6, 2016.
4. 5. Defendant now refuses to meet his financial obligation to me and his child. I am left without adequate support and do not have money to meet my basic monthly expenses while Defendant is living on easy street.
5. 6. I am in desperate need of this Court to award temporary support for me and my children so that we are able to live during the divorce proceedings.

NEED FOR PENDENTE LITE SUPPORT

1. 7. Defendant is a famous actor and earned $996,643 in 2013. Defendant’s W-2 is attached hereto as Exhibit A. Based on Defendant’s most recent pay stubs (attached hereto as Exhibit B), Defendant is projected to earn $925,628 in 2016.
2. 8. Meanwhile, I earned $19,589 in 2013 and am projected to earn a similar salary for 2016. My W-2 and recent paystubs are attached as Exhibit C.
3. 9. Defendant has been the primary wage earner throughout our entire marriage. I stayed home for a majority of the marriage to raise our children and take care of the family.
4. 10. Since abandoning the marital residence, Defendant has given me a minimal amount of support and I am not able to meet my basic living expenses. When I ask Defendant for money to pay our mortgage and other household bills he becomes erratic and enraged.
5. 11. During the marriage Defendant was responsible for paying the majority of our living expenses and now refuses to help me maintain the same, claiming he has no money.
6. 12. Defendant has stated that he does not care how I pay for our bills and that the same is not his problem. For example, our furnace broke right before the February 13, 2016 snowstorm and Defendant did nothing to help me and most importantly his children stay warm during the storm. I have had to hire a repairman to fix the heater and now worry that I will be unable to pay other bills this month because of this unforeseen expense.
7. 13. I now have no choice but to file this application so that I can afford to continue supporting myself and my children.
8. 14. It is my understanding that Defendant will make over $925,000 this year while I earn $19,589 per year. I have attached my Case Information Statement as Exhibit D.
9. 15. My monthly expenses about $4,900 per month. I earn approximately $1,632 per month. On the other hand, Defendant earned $100,469 in January of this year alone. Based on my expenses I will have a large shortfall each month if Defendant continues his refusal to help me.
10. 16. I do not have the financial ability to support myself and my children without Defendant. Defendant has been the one paying for our expenses throughout our marriage and he should be compelled to continue doing so during the pendency of our divorce.
11. 17. I fear that if Defendant is not ordered by Your Honor to pay me monthly support I will be unable to maintain the marital residence and will default on the mortgage. While I understand that the home may have to be sold, I do not want to default on the same while we are still living there.
12. 18. I need Defendant to contribute to my support so that I can continue maintaining the marital residence and adequately care for our two unemancipated children. It is therefore respectfully requested that Defendant pay me $30,268 per month in unallocated non-taxable pendente lite support, payable through the Middlesex County Probation Department, as and for support.
13. 19. Defendant is in a significantly better financial position than I am. Since he abandoned me, Defendant has been living comfortably with his parents without worrying about any living expenses, while I have been living in a home with no heat wondering where money for food will come from each week.
14. 20. Defendant was always the primary wage-earner during our marriage and continues to enjoy a dramatically higher income than I do, therefore putting him in a vastly better condition financially.
15. 21. Based on my current expenses for me and my children, considering Defendant’s and my respective income, I believe unallocated monthly spousal and child support of $30,268.00 is appropriate. I request that the Court require Defendant to pay this amount effective with the filing of this Motion.

OUTSTANDING HOUSEHOLD EXPENSES

1. 22. Since Defendant abandoned the marital residence I have been unable to pay for our basic living expenses and now risk having our utilities shut off.
2. 23. The following are the outstanding utilities at this time (invoices are attached as Exhibit E)
   1. a. PSE&G
   2. b. Sayreville Water Dept.
   3. c. Cablevision
   4. d. JCP&L
   5. 24. The total sum for our outstanding utilities is $10,325.64. I am unable to pay these balances on my meager salary and need Defendant’s help.
   6. 25. Defendant has always been responsible for paying the household expenses and should be compelled to come current on the same.

EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL RESIDENCE

1. 1. 26. The Defendant moved out of the marital residence on January 6, 2016 and has shown no intention of returning to the family.
   2. 27. Despite moving out on January 6, 2016, Defendant arrives at the house whenever he sees fit and even goes into the home when I am not present.
   3. 28. Defendant’s behavior makes me extremely uncomfortable, especially since he is very abrasive with me when he comes to the home.
   4. 29. In addition, it is disruptive to our children to see Defendant coming and going as he pleases as they are going through enough at this time without having to see their father showing up randomly and then leaving again.
   5. 30. It is respectfully requested that I be given exclusive use and occupancy of the marital residence.

COUNSEL FEES

1. 1. 31. As the Court can see from the attached W-2 statements there is a significant disparity between my income and Defendant’s. As a result, I do not have the same financial ability to retain counsel. My initial retainer was completely funded by monies that I borrowed from friends. Once that retainer is exhausted I will not have the ability to keep paying for counsel and will not be able to borrow any more money. I should not be prejudiced because I do not have the same salary as the Defendant and hope that the Court will see my need for counsel fees. I therefore request that Defendant be compelled to contribute $10,000.00 towards ongoing fees.

CERTIFICATION

I certify that the foregoing statements made by me are true, aware that if any of the foregoing statements are willingly false, I am subject to punishment.

____________________________________

KATIE HOLMES

Date: February 14, 2016

Edward R. Weinstein, Esq.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Weinstein Professional Building

214 Highway 18 North, Suite 2A

East Brunswick, New Jersey 08816

732-246-0909

Attorneys for Plaintiff, KATIE HOLMES

THIS MATTER, having been opened to the Court on the application of Plaintiff, Ms. KATIE HOLMES, through her counsel, LAW OFFICES OF EDWARD R. WEINSTEIN, LLC (Edward R. Weinstein, Esq. appearing); and notice having been given to Defendant, Mr. TOM CRUISE, self-represented; and the Court having heard the arguments and reviewed the submissions of the parties; and for good cause shown;

IT IS, on this ___ day of ________, 2014;

ORDERED, as follows:. Defendant is hereby Ordered to pay unallocated support to Plaintiff in the amount of $30,267 per month, retroactive to February 18, 2016; Defendant shall pay $10,325.64for the balance of the parties outstanding utility bills associated with the marital residence;. Support payments shall be made through Middlesex County Probation via wage garnishment;

1. The marital residence shall be placed on the market for sale immediately by a mutually agreed upon broker, and both parties shall fully cooperate with the sale of the same;.

2. Plaintiff shall have exclusive use and occupancy of the marital residence during the pendency of the Divorce action

3. Defendant shall be responsible for medical and hospitalization insurance on behalf of the Plaintiff and the unemancipated children of the marriage;

4. Defendant shall be responsible for 100% of all unreimbursed medical, dental hospitalization, psychiatric and prescription drug expenses for Plaintiff and the unemancipated children of the marriage. Defendant shall maintain Plaintiff as the sole and exclusive beneficiary of any and all life insurance coverage that he maintains either individually or through the course of his employment and shall keep the same in full force and effect during the pendency of this action and shall provide proof of all insurance coverage currently in effect;

5. Defendant shall refrain from destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties;

6. Defendant shall not sell, transfer, assign, mortgage, encumber or in any other manner alienate any of the property of either party, whether personal or real and whether separate or jointly held;

7. Defendant shall not dispose, give up, transfer possession of books, papers, documents or other materials concerning him and particularly his financial affairs;

8. Defendant shall remit $10,000.00 as and for pendente lite counsel fees to Law Offices of Edward R. Weinstein, LLC within ____ days of the within Order;

___________________________________

HONORABLE __________________J.S.C.

Edward R. Weinstein, Esq.

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

Weinstein Professional Building

214 Highway 18 North, Suite 2A

East Brunswick, New Jersey 08816

732-246-0909

Attorneys for Plaintiff, KATIE HOLMES

I, Edward R. Weinstein, Esq., of full age, hereby certify, that on February 18, 2016, I caused an original and two (2) copies of the within Notice of Motion to be filed with the New Jersey Superior Court, Middlesex County; and two copies to be served upon Defendant, Pro-Se, via hand-delivery.

I certify that the foregoing statements made by me are true, aware that if the statements are willingly false, I am subject to punishment ______________________________________________

EDWARD R. WEINSTEIN, ESQ.

Date: February 18, 2016