Brian D. Perskin & Associates

Pendentite Lite applications set the tone of the case.  A pendente lite motion requests relief during the pendency of the action, until a final decision is made and the case concludes.  A well written application asks the Court to make temporary decisions with respect to maintenance, child support, parental access, payment of household bills, and generally a continuation of the present standard of living until a final decision is made.  In this motion, it is important to convey your side of the story to the Judge.  You should include details of your marriage in a way that persuades the Judge to look upon you favorably.   Remember, you never get a second chance at a first impression.  Make sure your motion is detailed, well written, and most importantly well reasoned.  It is alright to stretch a little, but do not ask for things that are ridiculous. Over the last twenty years, I have read motions drafted by other lawyers that are poorly written and make little sense.  An example of a well written one is below.

(a)        Temporary custody of the unemancipated child of the marriage, to wit: to the Plaintiff pursuant to Section 240(1-a) of the Domestic Relations Law;

(b)        Temporary maintenance in the amount of $_______ per month as and for the support of the Plaintiff , pursuant to Domestic Relations Law Section  236(B)(6);

(c)        Temporary child support in the amount of $_______ per month as and for the support of the unemancipated child of the marriage, pursuant to Section 240(1-b) of the Domestic Relations Law;

(d)        Directing the Defendant to make all such payments retroactive to the date of  this application;

(e)        Directing the Defendant to maintain life insurance policies on the Defendant’s life, and to name the Plaintiff and the child of the marriage as irrevocable beneficiaries of said policies, and to provide the Plaintiff with proof thereof at least annually;

(f)        Directing the Defendant to maintain a comprehensive health insurance policy for the benefit of the Plaintiff and the child of the marriage, and to provide the Plaintiff with all necessary health insurance forms;

(g)        Exclusive use and possession of the marital residence, pending the final determination of the above-captioned action for divorce, pursuant to Domestic Relations Law Section 234;

(h)        Enjoining the Defen­dant from removing any items of personal property located in the marital residence (other than his clothing and personal effects), and enjoining the transfer of any personal property, real property or any interest in personal property or real property acquired by the parties during the time of the marriage until further order of the Court;

(i)         Exclusive use and possession of automobile pending the final determination of the above-captioned action for divorce, pursuant to Domestic Relations Law Section 234;

(j)         An Order of Protection, pursuant to Domestic Relations Law Section 240, directing that the Defendant refrain from all abusive, violent or offensive conduct toward the Plaintiff and that Defendant remain away from the marital residence ;

(k)        A Restraining Order, pursuant to CPLR Section 5222, prohibiting and restraining the Defendant from removing any funds, whether marital in whole or in part, from any bank, brokerage firm, or other institution, wherever situated and without limitation; encumbering, pledging, selling or otherwise transferring or hypothecating any and all assets, whether marital in whole or in part, wherever situated and without limitation;

(l)         A Preliminary Injunction, pursuant to CPLR Section 6311, enjoining, forbidding and restraining Defendant , Defendant ‘s agents or employees from disposing, transferring, encumbering, altering or alienating any and all marital assets of the parties hereto, specifically including granting defendant access to any safety deposit boxes in his possession or in possession of any financial institution;

(m)      A direction that if Defendant has transferred, encumbered, pledged, sold, or otherwise hypothecated any assets, whether marital in whole or in part, that any and all proceeds of such transaction or transactions be forthwith placed into an interest-bearing escrow account to be there held until further order of the Court;

(n)        Directing the Defendant to pay interim counsel fees, pursuant to Domestic Relations Law Section 237(d), in the amount of $ 25,000 .00;   and

(o)        Permitting the Plain­tiff to make further application, pursuant to Domestic Relations Law Section 237, for expert fees including without limitation appraisers and accountants fees;

Together with such other and further relief as to this Court may seem just and proper; Pending  a determination of the Plaintiff’s order to show cause it is hereby:

ORDERED, that the Plaintiff is hereby granted an order of protection; and it is further

ORDERED, that all safety deposit boxes presently located in any __________ Bank or any other financial institution in the name of the Defendant, or any entity in which the defendant has control, be restrained and enjoined and nobody be permitted to access same until further order of the court; and it is further

ORDERED: That the Defendant be enjoined from transferring any property or diluting any bank accounts in which he has control, except for ordinary living and business expenses; and it is further

ORDERED, that service of a copy of this Order and the papers upon which it is granted, together with the Summons with Notice, filed __________, upon the Defendant, _________, by personal delivery on or before the day of _________, 2010, shall be deemed good and sufficient service.


Above is a sample of the potential relief available in a pendente lite motion that may be filed by either the Plaintiff or the Defendant depending on who needs which form of relief.  It is equally important to a lawyer who can best defend your case, if your spouse files a well written and well reasoned motion .

If you are faced with such a motion, you must take great time and care in preparing your response. Your affidavit in response will become part of the Court file and could be used against use down the road.  Do not swear to something that is not true.  If a Judge perceives you as untruthful with regard to one aspect of your case, how would you expect the Judge to believe you honest with regard to the remainder of the case.  Why would a Judge award you custody of your children if the Judge believes you are a liar?  Take great care in the words you choose so that they do not hurt you down the line.


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