Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Why Must I Pay Pendente Lite Support During My New Jersey Divorce?

 As a divorce attorney in New Jersey, how the parties are going to handle their affairs while their divorce case is still pending is frequently a difficult issues for both each lawyer and New Jersey Family Courts to contend with. The first step is calculating pendente lite support, and the second is calculating post judgment support. Pendente lite is a Latin term meaning "awaiting the litigation" or "pending the litigation" which applies to court orders that are in effect while a matter, such as a divorce, is pending.  Patrick was also ordered to pay $ 50 every week in alimony. Pendente lite support is paid while the divorce-action is still going on, and not finalized. Post judgment support is made up of co-parent issues, support issues, splitting assets and so forth. 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 circumstances may alter a pendente lite award. In the paramount 1971 case of Schiff v. Schiff, the New Jersey Appellate Division held that the jurisdictional basis for pendente lite alimony is inherent, and arises out of necessity.

Pendente lite relief does not come from matrimonial law, but rather the idea of pendent lite relief comes from established legal 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 of divorce. 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 authorize temporary relief must be done with the most sensitive exercise of judicial discretion. The court must proceed with certain fundamental principles in such matters.

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.

In Schiff v. Schiff, ex-wife Claire Schiff appealed from orders of the Family Part that denied her motions to compel her ex-husband to restore alimony payments as per a settlement agreement, and for past due support payments that had accumulated between January 8, 1971, and April 8, 1971. The couple married on August 3, 1952 and had one child together who was eleven years old at the time this case arose. The couple separated, and entered into a settlement agreement on February 9, 1965. This settlement agreement covered their property rights, child custody, the care, maintenance, support, and education of the child, and support for the wife. According to the settlement agreement, Claire would receive $ 190 a week in spousal support, and $ 35 a week in child support. This agreement was incorporated into their final judgment of divorce entered on September 9, 1965.

The ex-husband filed a complaint on September 8, 1970 in which he alleged that he had suffered a heart attack in July 1968. He claimed that as a result of the heart attack and his present health condition he was forced to reduce  the amount of hours he worked, and thus suffered a “consequential loss of income.” He sought a reduction of his support obligations under the settlement agreements. In response, Claire filed a counterclaim and alleged that: (1) her ex-husband actually owed her support in the amount of $ 1,639.05; (2) she needed an additional $ 1,655 for the child’s school; and (3) an increase to her ex-husband’s support obligations because she claimed that she did not know his actual income at the time she signed the settlement agreement, and because as the child got older living expenses increased. Claire submitted an affidavit with her counterclaim which showed that her ex-husband had stopped paying the full $ 225 support obligation, and instead started paying $ 112.50 a week. All of her claims for relief were denied.

On appeal Claire argued that the trial court incorrectly treated their written settlement agree as if it was a court order for alimony and support. She also argued that the trial court granted her ex-husband pendente lite relief by reducing the support payments, when her ex-husband failed his burden to show he was entitled to pendente lite relief. The New Jersey Appellate Division started its opinion by stating that settlement agreements are enforceable so far as they as equitable and just.

The New Jersey Appellate Division agreed with Claire that when the trial court denied her order to show cause, it effectively granted her ex-husband a pendente lite reduction of the amount he was required to pay under the settlement agreement. Therefore, it must be reviewed under the rules of law that govern pendente lite motions. According to the 1957 case of Wheeler v. Wheeler, an award of pendente lite award comes under the inherent jurisdiction of the court, and arises from necessity. To succeed in in motion for pendente lite relief a moving party must prove 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. 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 trial court, the reduction in support obligation was warranted because of the changed circumstances in the ex-husband’s life. The trial court stated the changed circumstances might affect his ability to fulfill his support obligation under the settlement agreement. The New Jersey Appellate Division found that this proof did not satisfy the prima facie burden, and was clearly not enough to satisfy a motion for a pendente lite award, even for a motion to modify an order for alimony and support. The orders of the trial court were reversed. 

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