A motion is filed with the Family Court to seek relief from the court regarding a specific issue or several issues. A party seeking relief from the court after a Complaint for Divorce has been filed requests pendente lite relief. The term “pendente lite” means “pending the litigation” in Latin and is a term utilized to describe motions that are filed to maintain the status quo of the parties while the divorce case is still pending, and the Final Judgment of Divorce has not yet been entered. It is customary for parties to file pendente lite motions requesting temporary spousal and/or child support or for payment of specific marital expenses which continue to be incurred until the parties finalize the terms of a Marital Settlement Agreement and the Final Judgment of Divorce is entered. For further discussion, see Motion or Mediate.
A supported spouse may file a pendente lite motion during the early stages of the divorce process and ask the court to make preliminary decisions regarding interim support. Often this is done prior to the start of the discovery period, therefore, the court does not have complete information as to the parties’ finances. In deciding this application, the court rarely elicits direct oral testimony from the parties and instead is authorized to make a determination based upon the affidavits of the parties submitted to the court in support of each party’s position.
Any pendente lite Order entered by a family court is “without prejudice,” which means that, in accordance with New Jersey law, the terms of the Order can be retroactively modified either upward or downward at the time of the trial. In addition, either party can file additional pendente lite motions during the pendency of the divorce litigation.
Additional motions can be filed even after the finalization of the terms of your Marital Settlement Agreement and the entry of your Final Judgment of Divorce. These include a post-judgment enforcement motion which is filed when one party does not comply with the terms of the Marital Settlement Agreement. The purpose of this motion is to request that the court enforce the terms and order the defaulting party to adhere to the terms of the Marital Settlement Agreement. There is typically a request for payment of attorney’s fees due to the filing party having to incur costs for filing the post-judgment motion, which necessity was caused by the defaulting party. For further discussion, see Post-Judgment Enforcement.
Another type of post-judgment motion is one that is filed to request an upward or downward modification or termination of child support or alimony. Pursuant to New Jersey law, the party filing the motion must provide sufficient proof that there has been a significant change in circumstances. Post-judgment motions seeking modification may be triggered by a reduction in the payor’s income, an increase in the payee’s income, disability or retirement of either party, the remarriage of a former spouse, or the cohabitation of a former spouse in the context of an alimony obligation.
In addition, post-judgment motions can be filed based upon a significant change in circumstance that impacts the welfare of a child. These modifications involving child custody and/or parenting time are often based upon children’s maturation and changes in their needs, a parent or child’s disability, or a request for one parent to relocate with the child out of the state of New Jersey. The court applies a best interest of the child standard and may schedule a plenary hearing (trial) with the parties retaining mental health experts to prepare best interest evaluations. For further discussion, see Relocation and Divorce: Can I Move with the Children?
In accordance with New Jersey court rules, there is a specific procedure for filing each of these motions and the required documents to be filed, which include a Notice of Motion, a Certification of client, Certification of Service, proposed form of Order, and a Letter Brief in which the party seeking relief sets forth the contested issues and the supporting case law to assist the family part judge in deciding the outstanding issues.
Following the filing of a pendente lite or post-judgment motion, the other side is typically afforded fifteen (15) days to file a cross-motion, and the filing party has the ability to file a reply certification to the cross-motion. The parties will then be notified as to the scheduling of the date for oral argument, or it is possible that the judge may render a decision on the written submissions.
After an Order has been issued by a judge, a party is able to file a motion for reconsideration requesting that the judge reconsider a portion or all of the granted relief in the order. There must be a strong basis for the request for reconsideration, which is permitted pursuant to New Jersey court rules, and it must not be a request for the judge to reconsider the decision based upon the same evidence previously presented to the court.
Whether you are seeking relief from the court by filing a pendente lite motion, or a post-judgment motion, or are responding to a motion that has been filed by the other party, the attorneys at Cohn Lifland can assist you through the process. Our attorneys will discuss the specific requests for relief in the context of your family law proceeding and the manner in which to obtain the best possible outcome. Regardless of the type of motion or circumstances, contact the family law attorneys at Cohn Lifland who have significant expertise in representing clients in these matters.