Meenakshi H. Rajan, Esquire ©
Part 2 of 3
Part I: What is a “PL Hearing”? / Part 3: What if a “PL Order” is Wrong?
In my previous article, “What is a PL Hearing?”, I explained that a pendente lite (PL) hearing occurs to resolve certain issues on a temporary basis pending a final resolution of all matters through either settlement or litigation and results in a PL Order issued by a judge. A PL Order may be necessary to protect marital property, divide household expenses, or provide financial support for a spouse or children while a divorce is pending. This article explores the issues judges may consider when deciding PL matters.
The Purpose of PL Hearings
Two central objectives of PL Orders are to maintain the family’s status quo and to facilitate each party’s ability to continue the litigation process until all issues related to the divorce are resolved through settlement or at a final hearing. In some cases, these two objectives conflict in ways that are not easily resolved.
Consider a case in which a stay-at-home dad files a motion for pendente lite relief seeking spousal support payments and additional money from his wife to pay for an attorney. On one hand, it is “status quo” for the mother to provide financial support for the living expenses of the stay-at-home dad; furthermore, in order for him to afford an attorney and continue his case to the final hearing, he needs advancement of his attorney’s fees. On the other hand, it is a completely new arrangement for the mother to support two separate households and pay legal expenses for herself and her husband. It is also an increased financial burden to her, inconsistent with the family’s normal expenses, and therefore hardly “status quo”. Judges have to balance these competing objectives when considering each party’s evidence and making a decision.
The Evidence at a PL Hearing
The evidence presented to the judge at a PL hearing will vary depending on the circumstances of the family and the relief the parties are requesting.
In all cases involving child support or spousal support, both sides must present evidence of their income. This evidence may be the parties’ paystubs, tax returns or business records, if a party is self-employed. If a party requests child support, the parties will need to prove certain expenses for the children, such as the cost of work-related day care and the cost of the children’s health insurance.
In all child support cases, the judge must consider the Virginia child support guidelines, which codify the amount of support based on the parents’ income, the number of children, and the division of custodial days between the parents for each child.
When spousal support is at issue, effective July 1, 2020, the judge must consider the revised Virginia PL guidelines for spousal support. Unlike the Virginia child support guidelines, the guidelines for spousal support are not used to calculate spousal support at the final hearing. In that instance, both parties typically provide evidence of their monthly income and monthly expenses (e.g. rent/mortgage, utilities, groceries, health insurance costs, etc.) to demonstrate either their need for support or their ability to pay support.
In more complicated situations, one spouse may argue that the other spouse does not earn as much as he or she reasonably could be expected to earn. In this scenario, the first spouse may ask the judge to “impute” income to the second spouse – resulting in the judge using a hypothetical higher income to determine the second spouse’s income for the purposes of calculating child support and/or spousal support. Although imputation of income is not a common outcome at PL hearings, in situations where one spouse resigned a higher paying position without good cause or is terminated from their position due to some malfeasance, imputation of income may be appropriate.
If a party seeks exclusive use and possession of the former marital home, that party must present evidence that the other party is not harmed by an order prohibiting him or her from entering the property. Alternatively, a party seeking sole access to the former marital home must present evidence that such an order is necessary to protect that party’s health or safety. Many judges see exclusive use and possession as an extreme remedy and are reluctant to grant it.
When one party threatens to misuse marital money – or actually has done so in the past – the other party may seek an order enjoining (prohibiting) the dissipation of marital assets. Dissipation of martial assets takes many forms, including depleting bank accounts for frivolous expenses, encumbering property with liens, and failing to properly maintain a property resulting in loss of value. A judge might require evidence that these or similar events have or are likely to occur before ordering such relief.
Other typical PL order provisions, such as maintaining a currently existing life insurance coverage and beneficiary designation or maintaining health insurance coverage almost always preserve the status quo and are routinely ordered.
Often, if both sides are represented by counsel, attorneys can negotiate the terms of a PL order without the need for a hearing and a judge’s decision. The parties’ agreement can be memorialized in a consent PL order that is then presented to the court and signed by a judge. If the parties are unable to reach an agreement, a judge will decide the terms of the PL order based on the limited evidence that can be presented during the short duration of the PL hearing (between 30 minutes and two hours, depending on the court).
If you are not currently represented by an attorney and are uncertain what PL provisions are appropriate for the specific situation of your divorce, please reach out to the attorneys at The Myerson Law Group, P.C. We can help you navigate the divorce process.