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Pendente Lite Support

Very often one of the first questions asked regarding filing for divorce is, “How will I survive if my Husband/Wife stops supporting me financially?” The answer is simple. During the pendency of a divorce the support spouse has an obligation to maintain the financial status quo. Further, the Courts have the equitable power to establish alimony and support orders in connection with a pending matrimonial action. Lepis v. Lepis, 83 N.J. 139, 145 (1980).

“The state has long recognized the power of the judiciary to prevent irreparable harm and to preserve the status quo through the device of awarding temporary financial support pending a full investigation of a family case.” Mallamo v. Mallamo, 280 N.J. Super. 8, 11 (App. Div. 1995). Support during the pendency of a divorce, otherwise known as Pendente lite support, provides the means to preserve the status quo in a matrimonial matter pending a full investigation of the case. Id. at 11-12. “Maintenance of the status quo involves payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage.” Rose v. Csapo, 359 N.J. Super. 53, 60 (Ch. Div. 2002).

The statutory authority for a pendente lite support motion can be found in N.J.S.A. 2A:34-23 which provides, in pertinent part:

“Pending any matrimonial action brought in this State or elsewhere… the court may make such order as to the alimony or maintenance of the parties… as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders.”

The burden is on the party seeking the interim order to make a prima facie showing of the need for the support and the amount of support necessary to preserve the status quo. Schiff v. Schiff, 116 N.J. Super. 546, 562 (App. Div. 1971) certif. den. 60 N.J. 139 (1972). “When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.” Lepis, supra, 83 N.J. at 152.

A pendente lite decision is arrived at based on the facts that are before the Court at this time and can be modified prior to the final judgment of divorce and at the time that the final judgment of divorce is entered. Mallamo, supra, 280 N.J. Super. at 12. “The temporary nature of the pendente lite support order is illustrated by the general rule that provisions of a pendente lite order do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to a judgment prior to entry of final judgment.” Id. at 12.

As the parties’ circumstances change it may be necessary for the supporting or supported spouse to request a modification of the pendente lite support determination. The moving party seeking a modification of support bears the burden of demonstrating changed circumstances. Schiff, supra, 116 N.J. Super. at 546, 563. A temporary change in economic circumstances is insufficient to warrant a modification of support; rather, the change must be permanent. Lepis, supra, 83 N.J. at 151. See also, Bonanno v. Bonanno, 4 N.J. 268, 275 (1950).

If you are thinking of divorcing your spouse or are worried you are not receiving appropriate support during the pendency of divorce please contact our office to schedule a free, no obligation, consult to discuss your case.

– Posted by Valerie R. Wane, Esq.

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