Arizona Family Law Lawyer & Attorney : NRG - Nirenstein Ruotolo Group

If too much support is being paid voluntarily, payor spouses should know that this should be modified, in order to avoid the risk of an adverse inference being drawn that there was an ability to pay that particular sum. The ultimate risk is that the payment might be ordered to continue in the future. If insufficient support is being received, on the other hand, the recipient spouse should be made aware that the continuation of that practice will likely create the inference that the money paid is sufficient to satisfy the needs of the payee spouse. For any number of reasons, many clients adopt skewed arrangements they have reached between themselves. If the disadvantaged spouse is our client, we must explain the likely legal consequences of the risky interim decision.

What about the proofs? Evidence on a pendente lite motion is not as clear as what will be presented at the conclusion of the case, following the completion of discovery. For example, when people have lived a lifestyle beyond that which is reflected on their tax returns, it will be difficult to prove they have been living beyond their means at the pendente lite phase of the case. We need to present our clients' data by way of documentation. If documentation is nonexistent, then photographs can be employed to illustrate lifestyle.

Content of Pendente Lite Motions

Most pendente lite motions include the following requests:

Contribution to monthly expenses. This can be accomplished by direct payment or by way of alimony, child support, or any combination of the three, with varying tax consequences. Practice Tip: There are some instances when it could be damaging to allow the supporting spouse to be obligated to pay all of the housing and transportation expenses. There is no incentive for the supported spouse to budget under those circumstances. This could have the undesired effect of prompting the supported spouse to spend excessively, or to fail to cut back on spending when current economic conditions warrant it. While this is not necessarily problematic when the couple continues to live together under the same roof, it becomes quite the problem following separation, when the supporting spouse has roof and transportation expenses of his or her own. Another potential problem in utilizing this pendente lite approach post-separation, even if you are representing the recipient spouse, is that the adjustment to the realities of a post-divorce diminished income base is unnecessarily and unrealistically prolonged. This creates problems in the minds of any children, as well, as they to need to become acclimated to a different economic situation. The best approach in certain circumstances is to have the supporting spouse pay a certain dollar amount so that the supported spouse knows what the budget will be each month, and can run the household within that budget. In cases where family economic resources are tight, with credit cards being employed to bridge the gap, your pendente lite support request should require that, at the very least, the minimum payment be made on all credit cards every month to avoid unnecessary and avoidable finance charges. This requirement also has the positive effect of preserving the parties' credit rating pending litigation. It is also important to argue for well-reasoned allocations between child support and alimony, giving due consideration to the net tax effect of various support scenarios, which you can advance to the court. Always attempt to maximize available family income through the allocation of alimony and child support by taking into account the tax brackets of each party. Allow the spouse who will receive the greatest benefit from tax deductions to take them, while seeking some other concession in return. (See Frumkes, page 1, infra for a discussion of alimony trusts).

Continuation of medical and dental insurance and contribution to the payment of any unreimbursed health care expenses

Continuation of all other insurance, including homeowners, life and automobile policies. Practice Tip: The importance of maintaining all insurances cannot be over-emphasized. If your client believes that there is a danger that the supporting spouse would allow policies to lapse, or even delete the supported spouse and children as beneficiaries, application should be made for a pendente lite alimony award to include the costs associated with the various insurance premiums, and then have the bills directed to your client for payment. This would have the beneficial effect of guarding against the potential for uncovered catastrophic loss while improving your client's peace of mind.

Reasonable restraints regarding the dissipation, encumbrance or transfer of marital assets. Practice Tip: Be careful not to engage routinely in wide-ranging restraints or preliminary injunctions with respect to the use of various accounts. Some higher earners often have minimal salaries, but huge bonuses that arrive all at once at the beginning of the new year or perhaps in two payments (one at the end of the year and another one at the beginning of the next year). Consequently, marital lifestyles are maintained by using the savings from these bonuses. Assuming that we are attempting to maintain an approximation of the same lifestyle pendente lite, the payor-client's ability to spend this money pendente lite must likewise be maintained. The relatively high expenses, characteristic of such marital lifestyles, cannot be met unless such savings accounts are used, as they were during the marriage. This being said, it is always important that restraints from encumbering assets be requested, because spouses will often attempt to borrow against marital assets to bolster their spending power artificially pendente lite. This practice should generally be discouraged and neither party should be allowed to emcumber assets unless both parties agree or the court orders it.

The restraints sought should prevent both parties from taking on any additional loans of any kind, as well as directing both not to apply for or receive any additional credit. Any digression from these restraints should be done strictly through mutual consent of the parties following consultation with their attorneys and financial advisers, if need be. When poor market conditions wreak havoc with the pendente lite family economics, belt-tightening must be employed the same way it would have been had the family remained intact. For most families, this typically involves instituting cutbacks, rather than liquidating assets.

Yet another useful restraint that can be applied for pendente lite involves restraining the parties from changing their investments. As a marriage is being dissolved, one party should not be allowed to have the last word on all of the investment decisions without consultation and agreement with the other party.

Payment of attorneys' fees and costs, including an evaluation of any prospective services likely to be performed; and Appointment of experts, if necessary, including provisions for the payment of their fees

Other Relief

Other relief can include requests for temporary custody and parenting plans, a best interests investigation, complimentary custody/parenting mediation, and the appointment of Counsel for Child, Guardian Ad Litem or Parent Coordinator; exclusive possession and use of marital home, a particular vehicle, or any other specified marital property; the return of or accounting for any marital property that had previously been removed; various forms of declaratory relief; the continuation of any duties regarding marital properties, such as continuing in the role of landlord or caretaker; and the production of discovery and execution of authorizations and releases.

Practice Tip: One helpful item that can be obtained through discovery pendente lite is a list of all the assets each party has in his or her name, or in which he or she has an interest. The movant can request the court to compel delivery of the list within five days. Since certain assets -- that should have been listed on financial disclosure or case information statements, but were not -- can typically be explained away later by an assertion that the statement in question was highly preliminary, court-ordered directives are likely to provide a more comprehensive list.

Another pendente lite discovery request would specifically require both parties to confirm and disclose the existence and location of any safe deposit boxes they might have, or have control of, along with an inventory of the contents. Obviously, there are some situations in which this should be done pursuant to an ex parte order to show cause. Such an order would reduce the possibility of a spouse emptying the box in reaction to the discovery request.

On yet another note, it is wise to strongly consider asking that all support payments be made payable through the Probation Department. While the various Probation Departments are not without their problems, once your client's account is set up, support payments are typically monitored quite effectively. Clients are typically quite pleased to know that Probation will enforce their support order, while sparing the client the costs of filing a support motion.