How to File a Motion for a New Pendente Lite Hearing for a Divorce
By Beverly Bird
Pendente lite orders don’t last forever. They’re temporary until a judge rules on a final divorce decree, or until you and your spouse agree to a settlement the judge signs into a decree. If a judge issues a pendente lite order that you think is unfair, you can challenge it when you ultimately go to trial, or change it in your settlement agreement. However, you might not want to wait that long, especially if you're headed for trial. Judges often figure that if the terms of a pendente lite order work well while your divorce is pending, there’s no reason not to make them permanent in a decree.
Familiarize yourself with the family court rules in your state. If you want to file a new pendente lite motion, this implies you’ve already filed one and you’re not happy with the judge’s decision. The courts in most jurisdictions do not allow you to simply file the same motion again, hoping to achieve a better result. You must usually challenge the judge’s decision by filing a motion asking him to reconsider his opinion. In most jurisdictions, this is a motion for reconsideration.
Read More: Reconsideration of Divorce Decree
Research the grounds for reconsideration in your state. This might involve consulting with an attorney or visiting a law library, if you have access to one that’s open to the public. The court rules in most jurisdictions don’t permit you to rehash the same information in a motion for reconsideration. You must present new evidence. Alternatively, you can try to prove the judge misunderstood the information you presented the first time, or he overlooked or misinterpreted a point of law.
Prepare your motion packet. In most states, this consists of at least two documents: the motion itself and an affidavit or certification explaining your position. The court clerk can usually tell you what documents are required in your jurisdiction and often provide you with forms for each. Generally, your motion document will tell the court you’re seeking reconsideration and your affidavit will explain why you believe the judge erred.
File your motion with the court. Special deadlines usually apply to motions for reconsideration. In most jurisdictions, you have a very limited period of time in which to file. For example, in New Jersey, you have only 20 days. The court clerk will assign you a date for a new hearing.
If you miss the deadline for filing a motion for reconsideration in your state, you might still be able to modify your pendente lite order before trial. You would usually have to prove a change of circumstances and file a motion for modification instead of a motion for reconsideration. For example, you might have been ordered to pay child support in a certain amount, but you lost your job after the judge issued the pendente lite order, so you think your child support should be adjusted downward to reflect your changed financial circumstances.
Motions for reconsideration usually involve complex points of law. You may need access to case law, written histories of other cases similar to yours where judges made different decisions. Your odds of successfully overturning or modifying your original pendente lite order usually increase a great deal if you enlist the help of an attorney.
- Divorce Magazine: Preparation of Pendente Lite Applications
- Rochester Family Lawyer: Pendente Lite Motions and Available Relief
- Eric C. Rome: Alimony FAQ
- Divorce Source: All About New Jersey Family Court Motions
- Justia US Law: 2010 West Virginia Code – Motion for Reconsideration of Family Court Order
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.