What can a judge do at a pendente lite hearing?

Posted on Jul 23, 2021 by Katie Carter


We’ve talked many times about the difference between fault and no fault divorce, and the advantages and disadvantages of each option.

In many cases, one of the biggest advantages – and one of the primary reasons for filing on fault – is to get into court early to have a pendente lite hearing.

Pendente lite (pronounced pen-den-tay lee-tay), or PL, means ‘while the litigation is pending’ in Latin. Though Latin is a dead language, it is certainly alive and well in the law (though the only Latin most people seem to know is ‘pro bono’ – spoiler alert: we won’t take your case pro bono).

The objective of a pendente lite hearing is to make an initial, temporary determination on some important items so that both parties have some clarity and stability while the case is going on. Once the case is over – either because the parties reach a signed separation agreement or because they’ve gone to trial and a judge has entered an order – there will be a permanent result.

But what can a circuit court judge do at a pendente lite hearing?

A judge has quite a few options available to him at a pendente lite hearing.

Award temporary spousal support

One of the biggest reasons we’d file for divorce and quickly schedule a pendente lite hearing is to get spousal support awarded.

Spousal support cases are inherently tricky. One spouse has to earn significantly more than the other for spousal support to really be an issue, so the situation is definitely rife for abuse. To get spousal support in place quickly, you may have to be quick and aggressive.

The laws have recently charged regarding spousal support, too. These days, in cases where the parties’ combined income is less than $10,000 per month, the court automatically uses the Fairfax guidelines for temporary (meaning, pendente lite) spousal support. Not only that, but spousal support is no longer taxable to the person receiving it or tax deductible to the person paying it.

This can be especially important, since in many cases financial abandonment is a thing. Also, in order to continue to afford your mortgage payment or ongoing attorney’s fees, you’ll likely need some support in place. Of course, spousal support is never a guarantee, but it’s something a judge can do at a pendente lite hearing.

Award temporary child support and enter a custody and visitation order

All the stuff related to the kids needs to be determined on a temporary basis, too. For many parents, not having something in place until a permanent order is entered or a permanent agreement is reached is unrealistic.

The judge can order temporary custody and visitation, as well as child support.

A Guardian ad litem could also be appointed as well, if necessary.

Restraining Orders: No Wasting Assets, No Harassment

There are also certain restraining orders we can get at pendente lite. If he’s spending a bunch of marital money – trying to sell the home, liquidating accounts, making unnecessary purchases, etc – we can ask that he be ordered to stop. In order to meet the demands of equitable distribution later on, you’ll need the marital assets to be maintained while the case is pending. Any proceeds (say, money from the sale of an asset or whatever) can also be ordered to be placed in escrow in the meantime, too.

If he’s harassing, intimidating, or interfering with you, the court will order that this behavior stop. It’s often ordered mutually, but don’t take offense.

Exclusive Possession of the Home

If one or the other of you has moved out, even temporarily, the judge can order exclusive possession to one who has stayed behind. Generally speaking, the court will not force a party out of his home if he’s still living there; this really only happens in a case where one has left already.

The judge can also order the parties to continue to share expenses related to the home in a particular way.

Advance Attorney’s Fees

It doesn’t happen that often, but a judge can also advance attorney’s fees to one party at the pendente lite hearing.

That doesn’t mean the judge takes money and just gives it to you; it’ll be offset in equitable distribution. But, still, if your husband isn’t giving you access to the marital money and you have no other way to pay for an attorney, you can still ask that attorney’s fees be advanced to you.

What a judge cannot do at a pendente lite hearing

So far, we’ve talked about what a judge CAN do at a pendente lite hearing – but what can’t a judge do?

The biggest distinction between a pendente lite hearing and, say, a divorce trial is that, at the PL stage, we’re really not trying to hear issues related to fault. Pendente lite is really just about maintaining the status quo from the marriage and helping the parties have the resources to withstand the rest of the case.

We’re not introducing witnesses, exhibits, or testimony about someone’s fault, and this is not an appropriate place to attempt to do so.
Pendente lite is an extremely valuable opportunity. For one thing, it’s often the first opportunity to be in front of the judge, and to face your soon-to-be-ex in open court. Though in many cases, pendente lite hearings resolve BEFORE court (sometimes, even on the literal courthouse steps, or in a conference room at the courthouse on the morning of the hearing), this hearing can give you the opportunity to get much needed support and reinforcement established early on in your case.

For more information or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.