As a seasoned attorney, as soon as my law firm is hired to handle a divorce case, my associate attorneys and I immediately ask our client questions regarding the present status of their finances. A typical question that we may ask is, “is your spouse suddenly interfering with respect to your access to joint funds which prevents you from enjoying the lifestyle you did during the marriage?” Other client’s offer information such as their spouse, who has been traditionally been responsible for the monthly mortgage payment has suddenly stopped doing so. Once we learn that the other spouse has made any significant changes ranging from paying bills, blocking access to money that interferes with “day-to-day living to attempts to hide money, our lawyers immediately explain that New Jersey divorce law (i.e., pendente lite) dictates that both parties’ must maintain the “status quo” of the marriage. Let[s say, for instance, we advise our client that this is a violation of New Jersey divorce law. If so, we then explain that we shall prepare and file a motion for pendent lite relief so that a judge of a New Jersey family court shall issue an order mandating the other spouse to instantly return to the status quo of the marriage. When appropriate, we move for legal fees from the other spouse for this lawyer’s necessity in having to file the pendent lite motion in the first place. Following, please find information regarding the scope of different issues that the law of pendente lite encompasses as how the Family Part of the Superior Court of New Jersey handles such applications.
The first phase is calculating pendente lite support, and the second is calculating post judgment support. Pendente lite support is paid while the divorce is still going on. Post judgment support is comprised up co-parent issues, support issues, splitting assets, etc. The main purpose of pendente lite support is to make sure that both parties remain is the same or similar financial situation they were in before the divorce proceeding began, and to preserve the status quo throughout the divorce litigation. A change in the status quo may alter a pendente lite award. In the 2002 Superior Court of New Jersey, Burlington County case of Rose v. Csapo, the court held that a spouse’s cohabitation with another partner during the course of the divorce proceedings sufficiently disturbed and altered the status quo to warrant a modification of pendente lite support.
Interestingly, pendente lite relief does not come from matrimonial law, rather the idea of pendent lite relief has a basis in settled principles that relate to preliminary relief in evolving situations that require the preservation of the status quo, and the prevention of irreparable harm, until the final determination. For a long time, New Jersey has recognized the power of the courts to prevent “some threatening, irreparable mischief,” which should be avoided until the opportunity comes up for a full hearing of the case. However, the determination to
One such principle states that an award of pendente lite award should not be issued if the basic legal right underscoring a claim is unsettled. Another principle states that to win on a motion for temporary or pendente lite relief motion, one must make a preliminary showing of a reasonable probability of success. This principle is tempered by another principle that states, doubt as to the validity of a claim is not an adequate basis for refusing to maintain the status quo. Weighing the hardship to the parties from granting or denying relief is the final test. The amount of pendente lite relief granted should be no more than necessary to maintain the status quo until the final hearing. A court must consider what effect the maintenance of the status quo will have on the providing party. To accomplish this a judge must balance the conveniences of both parties.
At the final judgment of divorce, the court enters orders, going back to the date of pendente lite. These awards can be lower or greater than the pendente lite award, based on the evidence presented at trial. The court can only verify the incomes alleged at the time pendente lite was awarded, at the end of trial. Generally provisions of a pendente lite award will not survive a final judgment of divorce unless the order explicitly states otherwise.
To succeed in in motion for pendente lite relief an applicant must present a prima facie case. “Prima facie” is a Latin term that literally means “on its face.” It means a fact presumed to be true unless it is disproved. Prima facie proof is based on first impression, and accepted as correct until proved otherwise. To do so a court will review the pleadings and affidavits to determine the merits of the motion. When the merits of an application is in question, pendente lite relief will be denied.
The power of the courts to award temporary pendente lite relief in matrimonial actions come from New Jersey statute 2A:34-23. Pendente lite support is vital in family law cases because New Jersey Family Part courts are often flooded with cases. This means that most contested divorce matters will last a long time. Therefore the main purpose of pendente lite support is to make sure that both parties remain is the same or similar financial situation they were in before the divorce proceeding began, and preserve the status quo throughout the proceedings. According to the 1995 New Jersey Supreme Court case of Mallamo v. Mallamo, awards of pendente lite support are entered based on the submitted affidavits and case information statements. While there is usually oral argument, there is almost never a plenary hearing.
In most pendente lite cases, the dependent spouse remains in the home. The maintenance of status quo requires the supporting spouse to pay the marital bills and all the expenses necessary to maintain the standard of living the dependent spouse enjoyed during the marriage. However, a change in the status quo may alter a pendente lite award. In the 2002 Superior Court of New Jersey, Burlington County case of Rose v. Csapo, held that a spouse’s cohabitation with another partner during the course of the divorce proceedings sufficiently disturbed the status quo to warrant a modification of pendente lite support. The wife left the marital home and moved in with her long time paramour. The court found that she had entered into a new “marriage like” relationship, and so status quo was no longer a valid goal.
There must be an actual finding of cohabitation to sufficiently disturb or alter the status quo. Cohabitation requires an intimate relationship where the couple enjoys the duties and privileges that are common in marriage. This includes living together, keeping joint bank accounts, the sharing of household chores, and if the couple’s friends and families know about the relationship. As a matter of public policy, a supporting spouse should not have to be financially responsible for a dependent spouse’s new relationship. To require spousal support in such a situation would be against equity. Still, this does not mean that the court will not consider the economic need of the dependent spouse in such a situation. If there is a finding that the dependent spouse’s relationship is anything less than full cohabitation, then the court will employ the economic needs analysis. Similarly, a future change in the dependent spouse’s relationship would warrant a change of circumstances followed by a modification of pendente lite support.
To modify a pendente lite support obligation a supporting spouse must present a prima facie of cohabitation. Once a prima facie showing is established the burden of proof shifts to the cohabiting spouse to prove that he or she is not receiving any actual economic benefit. In Rose v. Csapo, the court found that the dependent spouse was legally cohabitating with her partner. They jointly purchased a home, they shared meals together, and presented themselves as a social couple. She was definitely receiving an economic benefit. It did not matter that the benefit was not at the same level to which her previous spouse provided. She had begun a new life without waiting for the court to finalize her divorce. The court ordered that her pendente lite support award had to be dissolved.
If you may be facing a divorce and have discovered that your spouse is making unilateral moves regarding your finances without your consent, we can help. Thank you.