Between part 1 and part two of this article, we’ve talked about a lot of things that can come up in spousal support cases, including recent changes to the law that impact both the modifiability of spousal support and the tax consequences associated with it.
We’ve also discussed, pretty generally, how spousal support is awarded – either by an agreement between the parties, or ordered in court by a judge.
But HOW does that happen, particularly in litigated cases?
In an agreement case, it’s easy. You agree to some terms (though, of course, agreeing isn’t always easy in and of itself), sign the agreement, and you’re pretty much done.
If you go to court, though, it’s a different story, and you’ve got a couple of options. If you’re thinking about things strategically, and trying to figure out how to get what you want based on the choices you make at the outset – well, I’ve got to admit, I like that about you. I think it’s smart.
It’s definitely better to figure out ahead of time what your goals are, and then reverse engineer the path you hope will get you there. By articulating your goals, it’s often much, much easier to make the decision about how, procedurally, to move your case forward.
So, obviously, your goal is spousal support. But if you can’t get an agreement in place (which is often Plan A), you’ve got to look at your other options. There’s no other way around it, though: your other options involve court.
How to get spousal support ordered in court
Is spousal support is the game, you’ve got a couple different courts you can petition for relief. Let’s discuss.
If you’re also getting divorced, spousal support is often determined as part of a divorce action.
Often, in a contested divorce, the first step, after you file, is to schedule a pendente lite hearing. Pendente lite is Latin for “while the litigation is pending”, and it’s an opportunity to get temporary support (both child and spousal), among other things, ordered.
It’s temporary support – just designed to last between the time it’s ordered and until either (1) the parties reach an agreement, or (2) the court enters a permanent order. But, still, it’s often a hearing that happens pretty quickly after filing, and one that will at least get something in place to help pay the bills in the meantime. That can be invaluable, especially if he has cut you off from access to the marital money, or refuses to add any extra to allow yout o support yourself or the children.
In the meantime, while the rest of the case is unfolding, you’ll at least have some kind of temporary support, and that will give you the freedom to think about what a reasonable result will look like in the rest of your case. Once you’ve got the basic necessities covered, you don’t have to feel so frantic. That can give you time to talk to a mortgage broker, to a financial advisor, or anyone else you need in order to make a plan for your life moving forward.
Pendente lite doesn’t change the rest of the divorce. We still have the ability to either negotiate an award of spousal support, or, if necessary, to litigate it. Your pendente lite award will stay in place until those more permanent awards of support take over. (Note that I don’t mean permanent as in “forever and ever,” I just mean a permanent and final adjudication or settlement of the issue of spousal support – whether it’s awarded for a period of years or whether it’s awarded indefinitely.)
If it’s litigated, we’ll want to make an argument, like we discussed the other day, of (1) your need and his ability to pay, (2) the statutory factors for support (see the Virginia Woman’s Guide to Spousal Support Part One), and (3) the duration of your marriage.
If you’re (1) trying to get spousal support in place but are NOT yet moving your divorce forward, or (2) you’re modifying an existing order of spousal support, you may find yourself in juvenile court.
It comes as a surprise to some that you don’t have to actually go through with a divorce (or, at least, begin the process of divorce) in order to get support in place. You can file through the juvenile court at any point.
There are some advantages and disadvantages to taking this route, though, and you should be aware of them.
Advantages to Filing in Juvenile Court
Of the courts, juvenile court is the easiest and most user friendly. It’s much more possible, if you choose, to file in juvenile court without the assistance of counsel. (Though, honestly, I never recommend it.)
You can ask for your support to be awarded back to the date that you filed. Even though it’ll take a long time to get a court date (more on this in the “disadvantages” section), your petition is good from the date that you file it, not the date that it’s actually heard.
If you get a bad result in juvenile court, it’s appealable to circuit court. You’ll get a “de novo” hearing, which means brand new. None of the information from the juvenile court will follow you up to circuit court – though, by that time, you almost certainly need an attorney. If you want to appeal a final order in juvenile court, you’ll only have a few days to do so, so make sure you check with your court to make sure of the deadlines there.
You can handle a couple of other issues at the same time as spousal support, if applicable. Specifically, you can also petition for custody, visitation, and child support.
Disadvantages to Filing in Juvenile Court
Like I mentioned before, it can take a long time to get a court date. Most of the courts in our area are operating with fewer judges than necessary, and their dockets are super backed up. In Chesapeake, for example, it can take up to three months for the court to even process your petitions. Another three months before they’ll set an initial appearance. And, if your case is contested, you’ll go in for your initial appearance only to find that the court will set a trial date, which is likely to be another three to six months out, depending on how backed up the court is.
If your husband doesn’t want to handle all these issues separately in the juvenile court, he doesn’t have to. If he files for divorce in the circuit court and sets a pendente lite hearing within 21 days, he can divest the juvenile court of jurisdiction – meaning that the case will be physically removed from the juvenile court and handed to the circuit court. It…kind of ups the ante. There’s nothing you (or I) can do to stop him from doing this.
If you get a bad result and don’t note your appeal within an appropriate period of time, you lose the right to do so. The clerks can’t (and generally won’t) help you make sure you’ve got the right documents, or advise you regarding next steps. They legally can’t give legal advice (because they aren’t attorneys and aren’t qualified to do so), either.
He can appeal, too! (A good result for you, remember, is a bad result for him, and he has all of the same options available to him that you do.) That would make your case take longer and cost more, especially if you’re represented by counsel. (And, if he appeals to circuit court, you definitely need counsel!)
Which option should I choose?
It depends on your goals. If you’re ready to move your divorce forward, circuit court is the better option. If you’re hoping to stay married for awhile longer (this is usually because of health insurance or some other benefit that you’re receiving as a benefit of your marriage), then maybe juvenile court is the better choice.
It’s a good idea to talk to an attorney about your options so that you can weigh your individual advantages and disadvantages and come up with the best course of action for you. None of us have a crystal ball, and we’re all doing the best we can with the information that we’ve got. We may be making a decision based on incomplete information, but at least we’re doing the best we can to think critically, strategize, and make the best decisions possible under the circumstances.
For more information, or to schedule a confidential consultation with one of our licensed and experienced Virginia spousal support attorneys, give our office a call at 757-425-5200.