How to Defend A Motion for Temporary Support
In this post I’m going to be talking about how to defend a motion for temporary support, also called pendente lite support. This is when somebody files, in the beginning of a divorce, to get support paid throughout the divorce, but that support is not related to alimony afterwards. It’s a law in New Jersey.
I’m going to be making certain assumptions when I speak of how to prepare, including that the person filing the motion either is not working or is earning very little. If this is the case, it’s likely he or she is asking for either a substantial amount in order to have a lot of the household bills vehicle expenses, and possibly child support covered. If your situation is different or the support requested is different, you may have to tweak this information, so it applies to your situation.
Complete your own case information statement
There are a few things you need to do if you’re on the receiving end of a motion for support. The first is to make sure that you complete a case information statement. A case information statement is a very long, tedious document that you need to file in a divorce case when there’s financial issues or equitable distribution. It’s asking you everything from how much you pay in income tax each year, to the value of your assets, to what you spend on hair care in a given month.
Now, I tell all my clients, this document needs to be accurate but not exact. It’s a summary document, so they’re not expecting you to know exactly how much you spent on your hair care last month, but they want a basic average. You want to make sure your numbers are correct. Do what you can to attach bills to your case information statement that evidence those payments and those expenses. You may want to attach bank statements and credit card statements, too. You can attach your mortgage statement. You’re allowed to attach as much as you want to support your case information statement and the numbers you put into it.
This is crucial because the case information statement is, probably, the most important document that you’re going to file in your divorce case. If you’re defending a motion for temporary support, it’s certainly the most important document at that moment. You’ve got to make sure your numbers are correct, and that they add up properly.
Review the other party’s case information statement
You also want to make sure that the other person’s case information statement is accurate. This is crucial because, again, it’s a summary document. Someone who’s seeking a substantial amount of support will often, whether it’s intentionally or unintentionally, inflate their monthly expenses and their needs. Their thinking is that doing this will inflate the amount of money they receive; if you’re not careful, that actually can be the case.
You want to be able to digest the other party’s case information statement very thoroughly, so you can point out how it’s different from your case information statement. If you complete your case information statement and attach the documents I’m saying to attach, you can evidence that with the actual submission and the documents.
You also want to consider the common-sense approach, and whether it makes sense, first of all, that you would have lived a certain lifestyle like this. Do the numbers add up in a way that makes fiscal sense? For instance, do the total household expenses equal or exceed the net take home income? More often than not, it will, partly because it’s hard to estimate the exact numbers. It may also be partly because many people live beyond their means and use credit cards, and sometimes because someone intentionally inflates the numbers. You need to know which one it is. If it’s credit cards, the courts may still consider you to have to use credit cards to support that, but regardless, you’ve got to know going into it which one it is.
Filing a response
After you get your case information statement together, you’re going to have to file a response. Now, inside of that, you can file, and should file, a cross motion, which is a separate relief document to the court asking for certain things that you want the court to enter.
You may have many things that you want, but relating specifically to the relief in temporary support, you want to first ask that the court not accept an argument about status quo. Chances are, the person who follows the motion is going to argue for the court to keep the status quo, but it’s not the status quo. Still, people think that’s the case. Judges say it, but the statute doesn’t, and most people don’t realize that. The first thing you need to do is point that out, so that the court’s not trying to make you measure up to what you did in the past, because most of the time you can’t. You’re in a divorce, you may have a separate household, things are going to change. The status quo is just not feasible anymore.
Asked for a fixed monthly payment
Second, you want to ask the court that if relief is offered, you be ordered to provide a fixed sum of money, and to let the other person pay their bills. The reason for this is to avoid being an open checkbook. If bills fluctuate from month to month in the future, you don’t want to be responsible for that. You want the court to set a dollar amount, so the other person is forced to budget and be their own bookkeeper.
Request a future review of the award
You also want to ask that they review the temporary support motion in three or six months. Now, this is often hard to get, but you want to try for it and press as much as you can. Depending on the facts of your case, you may or may not get it.
The problem with temporary support is this. It’s done in the beginning of a case, with very little information. The courts could possibly make the wrong decision, on either side, whether you’re paying or you’re receiving. It’s usually not going to be reviewed at all during the whole divorce case. If you’re subject to an excessive support motion, you’re not likely to be able to change that throughout the course of the case. Judges will tell you there’s a way to retroactively modify it at the end of the case, but that doesn’t help anybody.
If you have to pay support the entire time through your divorce, getting relief at the end doesn’t help. You’ve paid the money out. If you hadn’t paid, you’d be in contempt. Once you have paid, you’re not likely to get it back, so you want to do what you can to make sure it’s going to be reviewed at some point in the near future. This way it can be based on complete information.
Require the other party to be employed
Lastly, you want to ask that the other person be required to search for a job, and to report back to the courtroom proof that he or she has been searching. You don’t want somebody to get a substantial or comfortable supportive order and decide to just sit around because the divorce will take 12 months and they’re going to have the bills paid in the meantime. You want to make an affirmative obligation that they have to be searching for a job, and they had to submit that proof to the court.
This brings us back to the three-month review. That will give more credence to the court order net, if there is a person who is not employed or underemployed. Nobody is allowed to just sit around and not earn anything, but if you don’t ask for these specific things inside of your cross motion, the court won’t give it to you, they won’t review it at all, and you may be stuck with a very long, arduous support motion.
Take care not to let a support motion derail your divorce
The problem with support motions, overall, is that it will set the tone for your entire divorce litigation. If the support is set too high, and you’re struggling for money, you’re pressured to settle your case more quickly, and less to your advantage. If you’re recipient of a support award and it’s too low, you’re also forced to resolve it for financial reasons. We hope the court will do a proper balance and get the right numbers, but it’s hard to say, and it’s usually not the case, because again, it’s early in the case and not with accurate information. This is why it’s so important to follow the above steps when you’re defending against a motion for temporary support.