All too often a case that results of a pendente lite application in divorce litigation, will set the tone for the rest of the case and could effect the outcome of the settlement. By Charles F. Vuotto, Jr.
|< previous page|
Preparation of Pendente Lite Applications
By Charles F. Vuotto, Jr., Esq.
It is very often the case that the results of a pendente lite application in a matrimonial litigation will set the tone for the rest of the case and may very well effect the ultimate outcome. If an unequal or unfair result occurs early on in the case, it could spell disaster to one party. It is usually through pendente lite motions that the judge who will likely be assigned to the matter, will first become familiar with the parties. This will also be the first time that the judge will learn the critical facts regarding the parties' marriage, separation, children and other critical facts relevant to the dissolution proceedings. This first impression is one of the most critical aspects of any matrimonial litigation.
It can never hurt to review some of the applicable Family Part Rules of Court that control matrimonial matters. Here is a summary of some key rules that are particularly relevant to pendente lite motions:
A brief review of these rules will assure that the requirements of a pendente lite motion are met (e.g., page limts under R. 5:5-4(b), filing due dates under R. 5:5-4(c) and Notice requirements under R. 5:5-4(d)).
CASE INFORMATION STATEMENTS
Remember, with few exceptions, R. 5:5-2 requires that a Case Information Statement be filed in every contested family action within 20 days of the filing of an Answer or Appearance. The CIS must follow the form in Appendix V of the Rules. Parties must amend their CIS's as facts change. Therefore, there are very few instances, if any, when it is not appropriate to attach a completed CIS to a pendente lite motion.
CONTENTS OF PENDENTE LITE MOTIONS
Although the contents of a pendente lite motion are fact sensitive and will change from case to case, there are certain common themes that are routinely seen. It is good to know the general areas that may be addressed in such a motion so that they are not forgotten when preparing your application.
Although this is certainly not an exhaustive list, it will certainly provide a fine outline around which a comprehensive pendente lite motion may be prepared.
Before an attorney can effectively represent a party in a divorce action, it is critical that he or she know as much as possible about the parties, their relationship, children, assets, liabilities and interactions with each other and other people. Certainly, an effective pendente lite application cannot be prepared unless the attorney is adequately educated as to all relevant facts concerning the client. In order to educate the attorney, a "Marital History" should be prepared with the client. This, in conjunction with the statutory factors and Marital Lifestyle to be more fully detailed below, will provide an extensive amount of information to the attorney to allow him or her to effectively represent the client in all aspects of the matrimonial litigation including, but not limited to a pendente lite application. Attached hereto as Exhibit "A" is an outline which can be used in preparing such a Marital History with the client.
Since this is the first time that a client will have what he or she perceives as an opportunity to tell his or her side of the story to the court (other than the Complaint or Answer and Counterclaim), there is a tendency on the part of attorneys, paralegals and clients to infuse pendente lite applications with unnecessary emotional and irrelevant issues. In light of recent changes in the Rules of Court imposing page limitations, such irrelevancies have been eradicated out of necessity. However, whether or not you are able to fit a client's emotional outpouring into the page limitations, it should be avoided. Rather, in its place, emphasis should be placed on the statutory factors that a court will ultimately need to consider if the matter is tried. It is these statutory factors which should be the focus of initial client interviews and pendente lite certifications. Attached hereto is a useful checklist which can be utilized to gather all pertinent information with regard to the statutory factors relative to custody, equitable distribution, alimony and child support. (Exhibit "B").
Judges are huge fans of the saying "less is more". Although it is often difficult to avoid the temptation to throw in everything but the kitchen sink, very often this will turn a judge off. Rather than pages and pages of text, judges are more swayed by cold hard facts backed up by supporting documents and other proofs.
Over the last two decades, the Marital Lifestyle has been a critical issue in any divorce case. The most recent pronouncement from our Supreme Court embodied in the case of Crews v. Crews, 164 N.J. 11 (2000), decided May 31, 2000, has emphasized it's importance. As one of the most commonly cited factors, the "marital lifestyle" must be given special attention, both in terms of information gathering with the client at the initial stages of the litigation and in the preparation of the pendente lite application.
It is often difficult to address the "marital lifestyle" in the abstract. Although people may say they have a high, moderate or low lifestyle, that really does not give a court enough to go on and does not adequately and effectively communicate how the parties lived. It is necessary to breakdown the components of the parties' lifestyle to effectively convey how they lived. In doing so, there are various categories of expenditures of everyday life that should be considered. Each and every one may not be applicable in every case. However, the client should be questioned about these categories to see if they apply, and, if so, a narrative description should be prepared.
If the issue of the parties' lifestyle is a hotly contested issue, it may be appropriate to retain an accountant to perform a lifestyle analysis. Various methods for communicating the parties' lifestyle to adverse counsel and the court are explored in an article written by myself and Carl D. Gensib, C.P.A., Esq., a forensic accountant, which is attached hereto as Exhibit "C".
Only after the marital lifestyle is appropriately considered can a Case Information Statement be effectively prepared. Although this presentation will not delve into the preparation of the Case Information Statement and the Child Support Worksheet, since that justifies its own seminar, it is important to note that the lifestyle analysis, if done properly, will effectively support the figures in an accurate Case Information Statement.
Although this presentation will not address the complexities of a custody case, when standard time sharing and related issues are in dispute between the parties and raised in a pendente lite motion, an effective tool for assisting the court is a detailed Parenting Plan. Although we all know that Parenting Plans are to be filed pursuant to R. 5:8-5, unfortunately this requirement is not often met. Nonetheless, when timesharing and related issues are raised in pendente lite applications, submission of a proposed Parenting Plan as part of the form of order may allow the court to adopt the proponent's plan if it is reasonably and fairly presented. A sample of Parenting Plans is attached hereto and marked as Exhibit "D".
AFFIDAVIT OF ATTORNEY SERVICES
Very often, although very dear to the heart of all attorneys, the issue of counsel fees is given short shrift in pendente lite applications. More importantly, counsel very often fail to file the requisite Affidavit of Services. If they do file such a document, it usually gives only the amount of time expended on the motion and the hourly rate of the attorney, plus disbursements. Many counsel fail to include in their Affidavits of Attorneys Services the factors required by R. 4:42-9 and R.P.C. 1.5(a). Every Affidavit of Services should include the following information:
It is this writer's position that the retainer agreement that must be executed by all matrimonial clients should be attached as Exhibit "A" to the Attorney's Affidavit of Services. Further, the bills that have been rendered to the client (appropriately redacted to exclude any privileged material) should be attached as Exhibit "B" to any such Affidavit of Services.
The paralegal will note that many of the items to be referenced within the affidavits of service can only be completed by the attorney. Some of the above factors are case specific while others will be utilized with every Affidavit of Services that the paralegal does for any one particular attorney.
It is critical to note that no portion of any fee allowance claimed for attorney's services shall duplicate in any way the fees claimed by the attorney for para professional services rendered to the client. R. 4:42-9(b). For purposes of this Rule "para professional services" shall mean those services rendered by individuals who are qualified through education, work experience or training who perform specifically delegated tasks which are legal in nature and under the discretion and supervision of attorneys and which tasks an attorney would otherwise be obliged to perform."
Remember, an allowance of fees made on a determination of the matter shall be included in the judgment or order stating the determination. Therefore, do not forget to attach a proposed form of order to a pendente lite application and provide for a separate item leaving a blank so that the court may fill in the amount of the fees if the court is intending to make such an award.
If the above guidelines are followed with the assistance of the attached guidelines, it is very likely that the court will be provided with all relevant information to permit it to make an appropriate and fair award to the benefit of your client. Although gathering and presenting all relevant facts does not guarantee the result that the client may wish, you can be assured that if these procedures are routinely followed, your client will be given the best chances of achieving his or her goals during the pendente lite stages of the divorce litigation.
We also ask that you prepare, separate from the above document, a marital history. It is necessary that you provide this marital history in order to prepare your complaint for divorce or appropriate responsive pleading, and in order for us to know the relevant issues that exist between you and your spouse. We ask that you please provide a narrative on the following topics:
CAUSE OF ACTION
Marriage and Children
1. DATE OF MARRIAGE: _____________
2. LENGTH OF MARRIAGE: ______________
3. CHILDREN: ____________________
4. DATE OF SEPARATION: _____________
5. DATE OF COMPLAINT: _____________
6. PRESENT AGE OF PARTIES: Husband (__) Wife (__)
7. INCOME OF PARTIES:
Allegations of Extreme Cruelty
8. CUSTODY AND TIMESHARING
a. Status Quo
9. b. Mental Health and Fitness of Each Parent
10. c. Mental Health of Child
11. d. Stability of Home Environment
12. e. Physical Environment of Each Party
13. f. Age and Physical Health of the Parties
14. g. Criminal History of Either Parent or Cohabitant
15. h. Ability to Provide Social Development
16. i. Ability to Provide Religious Development
17. j. Ability to Provide Intellectual Development
18. k. The Parents' Ability to Agree, Communicate and Cooperate on Matters Relating to the Children
19. l. The Parents' Willingness to Accept Custody and Any History of Unwillingness to Allow Visitation, Unless Such Unwillingness Was Based on Substantiated Abuse
20. m. The Interaction and Relationship of the Children With Their Parents and Siblings
21. n. Any History of Domestic Violence
22. o. The Safety of the Children and the Safety of Either Parent From Physical Abuse From the Other
23. p. The Preference of the Children When They Are of Sufficient Age and Capacity to Form an Intelligent Decision
24. q. The Needs of the Children
25. r. The Quality and Continuity if the Children's Education
26. s. The Geographical Proximity of the Parents' Homes
27. t. Smoking By Either Party of Member of That Parents' Household
28. u. Other Members of the Household and Their Influence on the Child
29. EQUITABLE DISTRIBUTION
a. The Duration of the Marriage
30. b. The Age and Physical and Emotional Health of the Parties
31. c. The Income or Property Brought to the Marriage by Each Party
32. d. The Standard of Living Established During the Marriage
33. e. Any Written Agreement Made by the Parties Before or During the Marriage Concerning an Arrangement of Property Distribution
34. f. The Economic Circumstances of Each Party at the Time the Division of Property Becomes Effective
35. g. The Income and Earning Capacity of Each Party, Including Educational Background, Training, Employment Skills, Work Experience, Length of Absence From the Job Market, Custodial Responsibilities for Children, and the Time and Expense Necessary to Acquire Sufficient Education or Training to Enable the Party to Become Self-Supporting at a Standard of Living Reasonably Comparable to That Enjoyed During the Marriage
36. h. The Contribution by each Party to the Education, Training or Earning Power of the Other
37. i. The Contribution of Each Party to the Acquisition, Dissipation, Preservation, Depreciation or Appreciation in the Amount or Value of the Marital Property, as Well as the Contribution of a Party as a Homemaker
38. j. The Tax Consequences of the Proposed Distribution to Each Party
39. k. The Present Value of the Property
40. l. The Need of a Parent Who Has Physical Custody of a Child to Own or Occupy the Marital Residence and to Use or Own the Household Effects
41. m. The Debts and Liabilities of the Parties
42. n. The Need for Creation, Now or in the Future, of a Trust Fund to Secure Reasonably Foreseeable Medical or Educational Costs for a Spouse or Children
43. o. The Extent to Which a Party Deferred Achieving Their Career Goals
44. p. Any Other Factors Which the Court May Deem Relevant
a. The Actual Need and Ability of the Parties to Pay
46. b. The Duration of the Marriage
47. c. The Age, Physical and Emotional Health of the Parties
48. d. The Standard of Living Established in the Marriage and the Likelihood That Each Party Can Maintain a Reasonably Comparable Standard of Living
49. e. The Earning Capacities, Educational Levels, Vocational Skills, and Employability of the Parties
50. f. The Length of Absence From the Job Market and Custodial Responsibilities For Children of the Party Seeking Maintenance
51. g. The Time and Expense Necessary to Acquire Sufficient Education or Training to Enable the Party Seeking Maintenance to Find Appropriate Employment, the Availability of the Training and Employment, and the Opportunity for Future Acquisitions of Capital Assets and Income
52. h. The History of the Financial or Non-Financial Contributions to the Marriage by Each Party Including Contributions to the Care and Education of the Children and Interruption of Personal Careers or Educational Opportunities
53. i. The Equitable Distribution of Property Ordered and Any Payouts on Equitable Distribution, Directly or Indirectly, Out of Current Income, to the Extent This Consideration is Reasonable, Just and Fair
54. j. Any Other Factors Which the Court May Deem Relevant
55. CHILD SUPPORT
Child Support Guidelines Assumptions
THE "LIFESTYLE ANALYSIS":
WILENTZ, GOLDMAN & SPITZER
: _________ COURT OF NEW JERSEY
: _________ DIVISION, FAMILY PART
: _________ COUNTY
: DOCKET NO. __________
: Civil Action
: PARENTING PLAN
The parties agree to the following terms and conditions related to the parenting of their children
This parenting plan shall determine the procedures for the day-to-day care of the children listed in Section 1.3. This parenting plan is proposed by the defendant.
Father's Address And Employment Information.
Home Phone: _____________
Soc. Sec. Number: _____________
Employer and Address: ____________
Work Phone: _____________
Mother's Address And Employment Information.
Home Phone: ____________
Soc. Sec. Number: ____________
Employer and Address: ___________
Work Phone: ____________
Dependent Children Information.
Date of Birth _____________
Soc. Sec. Number: _____________
Date of Birth: _____________
Soc.Sec. Number: ____________
TYPE OF CUSTODY ARRANGEMENT.
1. Custody of the children in this case shall be as follows:
2. The parties shall have joint legal and joint physical custody of the unemancipated children of the marriage, and shall confer on all matters of importance including those specifically delineated herein.
3. When the children are with one party, that party shall be designated the Primary Caretaker of the children.
4. Legal custody is defined in the New Jersey Supreme Court case of Pascale v. Pascale and includes the legal right to make major decisions affecting the best interests of the minor children, (including but not limited to decisions relating to medical care, religious upbringing, education, extracurricular activities and camp).
5. The parties acknowledge that Joint Legal Custody and Joint Physical Custody obligates them to communicate with each other when required for the best interests of the children.
6. The parties agree that on all matters of relative importance relating to the health, education and general welfare of the children, they will confer with each other with a view to adopt and follow those policies which are in the best interests of the children. The parties respectively shall promptly notify the other of illness and other matters or problems affecting the children and their just welfare and interest, and shall also notify the other as to their residence and telephone numbers.
7. It is expressly understood by both parties that neither shall do anything to alienate the childrens' affection or to color the childrens' attitude toward the other. On the contrary, both parties shall cooperate in every way to help the children better adjust themselves to the circumstances as they now exist, and may in the future exist. Both parties shall conduct themselves in a manner that shall be best for the interest, welfare and happiness of the children, and neither party shall do anything which shall adversely affect the morals, health and welfare of the children.
REASONS FOR SELECTION OF CUSTODY TYPE.
8. Joint legal and physical custody will provide the children with stability and continuity while fostering a normal relationship between the children and both parents. Both parents agree on the absolute necessity to provide a safe and emotionally healthy environment for the children.
EQUAL TIME SHARING SCHEDULE
9. These provisions set forth where the children shall reside each day of the year and what contact the children shall have with each parent. The plan shall commence effective with the signing this Parenting Plan.
REGULAR SCHEDULE. (DURING SCHOOL SESSION)
10. The Father shall have custody of the children from 5:00 p.m. Sunday through Wednesday morning drop off at school. The Mother shall have custody from Wednesday after school through 9:00 a.m. Saturday. On non-school Wednesdays, the transfer shall occur at 1:00 p.m.
11. The parties shall alternate weekends from 9:00 a.m. Saturday through 5:00 p.m. Sunday. The Father shall have the children on the first and third weekends of the month and the Mother shall have the children on the second and fourth weekends of the month.
12. During months when there is a fifth weekend, the parties shall share the children as follows:
The first fifth weekend of the year, the Mother shall have custody of _______ from Saturday at 9:00 a.m. through Sunday at 9:00 a.m., and she will then have _________ with her from Sunday at 9:00 a.m. through Sunday at 5:00 p.m. The Father shall have custody of Child from 9:00 a.m. Saturday through Sunday at 9:00 a.m. and will have _______ from Sunday at 9:00 a.m. through Sunday at 5:00 p.m.. The next fifth weekend the Mother shall have custody of Child from Saturday at 9:00 a.m. through Sunday at 9:00 a.m., and then she will have ______ with her from Sunday at 9:00 a.m. through Sunday at 5:00 p.m. The Father shall have custody of _______ from 9:00 a.m. on Saturday through Sunday at 9:00 a.m., and then he will have Child from Sunday at 9:00 a.m. through Sunday at 5:00 p.m.
13. The parents intend to be flexible with the time sharing schedule, making adjustments to accommodate each other's requests for special occasions.
14. In the event that either parent is unable to be with the children for any extended time (i.e. afternoon or evening) during his/her parenting time and would otherwise leave the children in the care of any third party, care of the children should be offered in the following order: (1) Other parent; (2) Grandparents; (3) Other family members, as mutually agreed to. Only after these options are exhausted shall the children be placed in the care of a babysitter.
15. The parents shall be responsible for supervising the children's homework and special projects during their respective parenting times.
16. The non-residential parent may phone the children once daily. The children shall be permitted to phone the non-residential parent as frequently as they request.
SCHEDULE FOR SCHOOL BREAKS.
17. The parties shall follow the normal residential schedule.
18. The parties shall follow the normal residential schedule.
19. During both recesses, the grandparents may opt to spend time with the children.
20. Upon completion of the school year, the children shall continue to reside with the parties under the normal residential schedule.
VACATION WITH PARENTS.
21. Each parent is entitled to one uninterrupted week of vacation during the school year and a second week of uninterrupted vacation during the summer school recess. Prior to vacationing with the children, each parent shall provide the other parent with an itinerary and emergency contact numbers where the children can be reached.
SCHEDULE FOR HOLIDAYS.
22. The parties shall have custodial time with the children for a particular holiday in odd or even years, as detailed in the charts below:
23. Each parent is entitled to two hours with the children on their birthdays. The non-custodial parent shall have the first option to take the children to dinner. If either parent opts to have a birthday celebration for the children, it shall be planned during his/her own parenting time.
24. If there are additional holidays not delineated above, parenting time for these holidays shall abide the normal residential schedule.
25. Transportation for the Father's parenting time with the children on the first and third weekends of the month beginning on Saturday morning shall be provided by the Husband. Transportation for the Mother's parenting time on the second and fourth weekends of the month ending on Sunday evenings at 5:00 p.m. shall be provided by the Mother. On the fifth weekend of the month, the Father shall pick up one child on Saturday morning and the Mother will return one child on Sunday evening. All pick ups on Saturdays will be the Father's responsibility and all drop offs on Sundays shall be the Mother's responsibility.
ACCESS TO MEDICAL & SCHOOL RECORDS
26. Each parent shall be entitled to complete information from any pediatrician, general physician, dentist, consultant, specialist or other medical or mental health professional attending to the children for any reason whatsoever and shall be provided with copies of any reports (whether oral or written.)
27. Each parent shall be entitled to complete information from any teacher, tutor or school giving instructions to the children. Each parent shall get copies of all reports from any school which the children may attend. Either party receiving notices of school schedule, teacher notes or report cards shall have the affirmative obligation to supply the other parent with a copy.
28. All schools attended by the children shall have each parent's address and phone number, and both addresses will be known as the official addresses for purposes of school records.
Day To Day Decisions.
29. Each parent shall make decisions regarding the day-to-day care and control of each child while the children are residing with that parent. Each parent shall respect the parenting skills and abilities of the other parent. Regardless of the allocation of decision making in this Parenting Plan, either parent may make emergency decisions affecting the health or safety of the children when the children are in his/her care and will notify the other parent as soon as possible. The residential parent shall immediately notify the other parent in the event of any serious illness (high fever, accident or other illness requiring medical attention), while the children are in that parent's care.
30. The Husband and the Wife shall consult and agree with each other with respect to all major decisions concerning the children's education, illnesses, operations, medical care, health, welfare and other matters of similar importance affecting the children, whose well-being, education and development shall at all times be the paramount concern of the Husband and the Wife. The parties shall always discuss such decisions together prior to informing the children of their decision.
31. Both parties shall keep each other informed of their residence and phone number, and shall promptly notify the other of any changes. If either parent is out of town for two or more consecutive nights, he or she will provide the other parent with a phone number where he/she can be reached in case of an emergency.
32. Grandparents, aunts, uncles shall be entitled to visitation upon reasonable notice to the custodial parent. Each of the parties' relatives are to choose times when the children are with their relative to visit. For instance, Ms. _____'s parents should not be attempting to visit the children during Mr. ____'s time with the children, and vice- versa. Should either parent predecease the other, the deceased spouse's parents, brothers and sisters shall be entitled to visitation upon reasonable notice.
33. In the event that any change should occur in the circumstances affecting the children's access to either parent, residential care and arrangements shall be considered by the parents in light of the then existing circumstances. These may include but not be limited to physical or mental disability, work schedule changes and financial status changes. In any scenario, every effort shall be made to facilitate continued access of the children to both parents in as close to the current residential schedule as possible.
34. If either party moves to a distance greater than fifty miles or one hour travel time to the other party, then the above provisions shall no longer apply and shall require renegotiations.
35. If a dispute should arise between the parties concerning the parenting schedule or other related issues which the parties cannot resolve between themselves, they shall first consult with the court appointed custody mediator who assisted them in arriving at the current Parenting Plan, two wit: ___________ or other court appointed custody mediator if Ms. _____ is not available, to resolve the dispute. If the parties mutually agree, they may utilize another qualified custody mediator, mutually agreed upon. The parties need not be compelled to resort to mediation in the event of an emergency
IN WITNESS WHEREOF, the parties have hereunder set their hands and seals the day and year written below their respective names.
SIGNED SEALED & DELIVERED
As to Wife