Meenakshi H. Rajan, Esquire ©
Part 3 of 3
Part I: What is a “PL Hearing”? / Part 2: How is a “PL Hearing” Decided?
A Pendente Lite (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, as discussed in the first two articles of this three-part series, “What is a PL Hearing?” and “How is a PL Hearing Decided?” But what can someone do if a PL decision is wrong?
There are two common situations in which a PL Order may be wrong:
Changed Circumstances
If circumstances change in the time between the entry of the PL Order and the present, the PL Order may require modification.
For example, in a child support case, the cost of work-related day care may change substantially after the PL Order is issued, resulting in a need to modify child support. As another example, in a spousal support case, a spouse may experience a significant change in income or living expenses (e.g. change in employment, or change in rent/mortgage cost after a move), making it appropriate to modify spousal support.
In the examples given above, a party may or may not choose to petition for a re-calculation of PL support, depending on the length of time between the change in circumstances and the final hearing. If the final hearing is scheduled to occur soon, it may be cost effective to wait to recalculate PL support at the final hearing, rather than having a second PL hearing. At the final hearing, the court has the authority to adjust the child support or spousal support amount that should have been paid pendente lite (see further discussion below).
Sometimes a party may not have a choice to revisit PL matters, as many courts also only authorize one PL hearing per case. However, if there is a long time between the changed circumstance and the final hearing, or a dire financial need, judges may authorize a second PL hearing. This is increasingly true during the COVID-19 pandemic, when cases are continued frequently, and there can be a long time between starting a lawsuit and the final resolution.
Error in Underlying Facts
A second circumstance in which a PL Order may be wrong is when the numbers used in the original calculation of support were never correct. For example, if one party underestimated or failed to disclose his or her actual income, the PL support figures would have been based on false or inaccurate information.
In this situation, the Supreme Court of Virginia has ruled that the PL Order can be corrected retroactively. In Everett v. Tawes, 298 Va. 25, the Court ruled that because PL Orders are “interlocutory”, meaning temporary orders, not final orders, a trial court always has authority to correct an error during the pendency of the case. That means a judge will determine what PL support should have been and award an arrearage or reimbursement based on the corrected number.
PL Orders are temporary. That’s good news if they are incorrect, because mistakes can be addressed and fixed – either at the final hearing or while the case is ongoing.
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.