Pendente Lite

The term pendente lite is a Latin term that translates to mean “pending the litigation.” For example, pendente lite is used to describe court orders that are put into effect while litigation is still pending, in order to facilitate fair administration of justice. Pendente lite orders are most commonly issued in divorce actions. In divorce actions, pendente lite orders are typically issued to provide temporary support to the spouse who makes less money, in order to get him or her by until a permanent order can be made. To explore this concept, consider the following pendente lite definition.

Definition of Pendente Lite

Pronounced

pen-den-tay-  lee-tay

Noun

1. During the suit; while litigation continues

Origin

1720-1730       New Latin  (“with a lawsuit pending”)

Pendente Lite Motion

A pendente lite motion is the first motion drafted in a divorce case. As the term pendente lite is Latin for “while litigation is pending,” a pendente lite motion is one that is drafted while a matter, such as a divorce, proceeding. For example, pendente lite motions are typically drafted to urge the court to grant financial support to the less monied spouse, while the remaining issues are litigated.

Pendente lite is not to be confused with “lis pendens.” While the Latin term lis pendens also translates to mean “a pending lawsuit,” a lis pendens is a physical document that is filed in the public record, and concerns real estate transactions. Specifically, a lis pendens acknowledges that there is an ongoing lawsuit, and that the lawsuit may have an effect on the property’s title.

Because no one wants to invest in a piece of property that is tangled up in a lawsuit, a lis pendens notice essentially keeps the property in limbo until the lawsuit is resolved. Lis pendens are often filed in matrimonial actions when there is a disagreement insofar as the selling or dividing of the marital home.

Pendente Lite Relief

Pendente lite relief may be especially necessary in cases where the spouses are living apart. This is to help the spouse who makes less income support another residence while the case is ongoing. The initial request for pendente lite relief can be one of the most important, as well as one of the trickiest, moves one can make in a divorce case. This is because the first impression the judge may get from reading these papers can last throughout the remainder of the case, and can color the ultimate outcome.

The judge’s first impression may be considered again over the course of a trial or during settlement negotiations. If the party that is requesting the pendente lite relief starts off on the wrong foot with the judge, either alone or with his lawyer, the repercussions of that misstep may be felt for a very long time. A judge’s poor opinion can affect everything from client relations to even the costs of litigation due to the case being drawn out for longer than expected over what have become unfavorable decisions.

A pendente lite order may last until the case is marked settled, either at the conclusion of trial or with a settlement agreement. Once a pendente lite order has been entered, it becomes incredibly difficult to change its terms. It is therefore crucial that the attorneys in the case prepare and file the initial papers carefully and properly in order to ensure that the right impression comes across and that their clients receive a fair decision from the court.

Pendente Lite in Divorce and Child Custody

When it comes to pendente lite in divorce and child custody, even spouses who share equal custody time can request relief from the court. What is interesting is that even if a couple does not want to get divorced and only wants to live separate from each other, remedies like temporary child support and spousal support are still available. All one needs to do is file an application with the court for the type of relief desired. The parties do not even need to hire an attorney, as their state’s family court handles these sorts of cases.

It is best to hire an attorney for pendente lite in divorce and child custody matters if the party to a divorce action is unsure of his or her rights. An attorney can potentially be more effective at protecting his client’s rights, than the client might be if he were to pursue pendente lite in divorce and child custody on his own. This is because the attorney knows the law, and therefore may be better equipped insofar as drafting the pendente lite motion.

Pendente Lite Example in a Case with a Stay-Away Order of Protection

The following example of pendente lite relief was determined in a case wherein the husband was ordered to “stay away” from his child by the court. In September of 2004, after dating for about three years, a couple known in the court documents only as C.G. (wife) and F.G. (husband) were married. They had one child together and, while they did not establish an official custody order, the child undisputedly resided primarily with the wife.

In January 2016, the Supreme Court of Richmond County, New York issued a temporary “Stay Away” Order of Protection (also known as a Restraining Order) against the husband, which directed him to stay away from the child, subject to future orders of the court that would decide his parental rights and access. The Court ultimately gave the father visitation twice per week, under the supervision of the child’s maternal grandparents.

The wife then filed a pendente lite motion with the court requesting several forms of relief:

1. Temporary custody of the child
2. Exclusive use and occupancy of the couple’s home
3. An order directing all visits between the father and the child to be supervised by a professional
4. Pendente lite child support, spousal support, and fees for her attorney and expert witnesses

In her pendente lite application, the wife argued that the husband – a Sergeant with the New York City Police Department – made more money than what he had represented to the court. She further argued that the income he was making was not wholly representative of his earning capacity. In addition to his employment income, she argued, his parents regularly provided him with significant financial support, and he could therefore afford to give her more money, as requested in her motion.

The wife offered transcripts of allegedly recorded conversations between her and the husband, and between her and the husband’s mother, as proof of these transactions. Despite the father’s denial that his parents provided him only with “occasional help,” the transcripts provided by the wife reflected the purchases of such things as luxury vehicles and expensive clothes made in his parents’ names.

The wife went on to claim that, in addition to all of this income, the husband must have been making money somewhere else as well. This assumption was based on assumption, because the husband was planning on purchasing a million-dollar home, and an $85,000 engagement ring for his girlfriend. The husband admitted to earning rent money from an investment property he owned in Staten Island, but he argued that the monthly mortgage that he had to pay every month exceeded the rental income he would make. He denied receiving any other income than what he made with the Police Department.

The wife, on the other hand, worked as an insurance underwriter. According to the paycheck stub she provided to the court, she made nearly $150,000 less per year than the husband claimed as his earnings – and that was solely from his employment with the Police Department. This figure did not include any other income, including the “occasional help” he would receive from his parents.

Ultimately, the court decided to award pendente lite relief as follows:

• Temporary spousal support: $942 bi-weekly, to be paid until the signing of the final divorce documents.
• Child support: $842 bi-weekly, on the same schedule as the spousal support payments.
• Retroactive payments of child support and spousal support: The husband was ordered to pay arrears for support, as an additional $400 per month on top of his support obligations until the arrears were paid in full.
• Carrying charges and expenses: The wife was ordered to pay the mortgage, utilities, and carrying charges on the home, as well as her personal expenses, while that was the wife’s primary residence.
• Child care and unreimbursed medical expenses: The husband was ordered to pay 90% of any “reasonable and necessary” medical or child care bills presented to within 20 days of receipt.
• Attorney fees: The husband was ordered to pay $16,000 for the wife’s attorney’s fees within 30 days of the court’s decision, then another $18,000 within 60 days of the date of the decision.

Insofar as the remaining issues that the pendente lite motion had covered, the court had this to say:

“Husband’s application regarding parental access shall be addressed by the ongoing Orders of this Court. Husband’s application for an expedited hearing on Wife’s family offense petition shall be addressed at the Compliance Conference in this action which has been previously scheduled for September 1, 2016. Husband’s applications regarding a duty use exception for his firearms and possession of the parties’ Mercedes were previously ruled upon by this Court. Wife’s application for expert fees is denied at this time, without prejudice to renewal upon the completion of depositions and document discovery in this action. All other issues raised either in Wife’s motion, or Husband’s cross motion, not specifically addressed herein, or previously resolved or withdrawn, are hereby referred to the trial of this action.”

Related Legal Terms and Issues

• Child Support – Court-ordered payments made by one parent to the other for the support of the couple’s minor children.
• Redact – To censor text for legal or privacy purposes.
• Spousal Support – An allowance paid to an individual by their former spouse after they divorce or separate.