One of the main reasons people file on fault first isn’t because that would necessarily be their first choice. Many women would prefer to negotiate a separation agreement instead, and not only because an uncontested divorce is typically cheaper, easier, and much quicker. For a number of reasons, though, they may feel more or less forced onto the contested divorce track. I’m not here to discuss all the possible reasons why you might feel like you have to file on fault, but I am here to discuss one very, very good reason why you might choose to: because you get to have a pendente lite hearing.
Pendente lite (which is pronounced all sorts of different ways by attorneys, so however you choose to say it, you’re fine) is Latin for “while the litigation is pending.” At a pendente lite hearing (or PL, whichever you prefer) lots of issues are determined. For our purposes, one of the most important issues is support.
At the pendente lite hearing, the judge can establish temporary spousal and child support. For a lot of women, the moment they decide to separate from their husbands is also (coincidentally? I think not) the same moment that their husbands decide to totally separate finances, and have their paychecks direct deposited into another account. They’ll refuse to provide any type of support whatsoever, which leaves these women in a pretty serious financial pickle. Financial matters aren’t all that a judge can determine at a pendente lite hearing. At a pendente lite hearing, the judge can also order temporary custody and visitation, prohibit the parties from interfering or harassing each other, restrain them from wasting marital assets (like cashing out a 401(k), buying a new boat, or having a yard sale), grant exclusive possession of the marital residence, and order that no overnight guests of the opposite sex be allowed when in the presence of the children.
It’s a pretty important hearing, and, also importantly, the first opportunity for you to go to court and stand in front of the judge. A pendente lite hearing is not a time for a judge to hear issues related to fault; that’s really not the point. Instead, the purpose of a pendente lite hearing is just to provide the kind of support that the parties need to make ends meet and survive while the litigation is going on. That’s really it. It’s more to support the status quo than anything, and, for a lot of our clients, it’s incredibly important. It’s also often an incredible point of anxiety. For many women, it’s their first time facing a judge—and certainly the first time in this particular case, and it’s scary. It’s always scary to have to face a judge in a courtroom, not knowing what the outcome will be.
What can I expect to happen in my pendente lite hearing?
Take a deep breath, first and foremost. It’s scary to go to court, but it’s not the end of the world, either. And the judge isn’t going to be mean to you. That’s not to say, of course, that the judge won’t decide something that isn’t in your favor; that happens. But this isn’t really the time where we listen to issues of fault or who did what; it’s a practical presentation of evidence related to income and expenses. And, sometimes, it doesn’t even get that far.
In fact, in a lot of cases, pendente lite issues are decided on the courthouse steps (no, not literally) before the attorneys and clients even get to go in front of the judge. Attorneys don’t like going in front of judges either, in a lot of cases. I’ll just speak for myself for a minute, though, rather than generalize over broadly about attorney’s preferences. I’m not a gambler, and going in front of a judge is, for me, a little like gambling. It’s hard to know exactly what the judge will do, and it’s not a risk I love to take. I do when necessary, and have no problem doing it, but if I can reach a good, reasonable settlement without bothering the judge about it, I try to. It’s something I have in common with a lot of other attorneys. In fact, it’s pretty common for attorneys with pendente lite hearings scheduled to let the judge know that they’re trying to reach an agreement, and then spend an hour or two negotiating in the hallway before going in and facing the judge if they’re not able to reach an agreement. If they are, then they’ll either quickly memorialize their agreement in a (handwritten) order for the judge to enter, or they’ll shake on it and go back to the office and circulate a typed order that they’ll then send back to the court for entry. It happens all the time that these things are negotiated, rather than litigated.
So, if you’re preparing for a pendente lite hearing, you should know that there’s a good chance that, even if you go to court on the morning of your hearing, you won’t necessarily see the judge.
What if my pendente lite hearing IS litigated?
Well, no big deal. A pendente lite hearing is usually fairly short; an hour or less. (Though I have heard of longer ones, but it’s rare, because the judge’s dockets are awfully backed up.) Each side has roughly half of that time to present their evidence, question their witnesses, and make their arguments. Usually, the evidence and witnesses are specifically related to income and expenses. You and your husband will probably both testify, and the attorneys will use documents called income and expense sheets to show the state of your financial affairs to the judge. The judge issues a ruling, and the hearing is over. It often takes far less time than the negotiating part, because it’s really only a temporary decision anyway. After you either reach an agreement in writing or have a final order entered by the judge, those terms will take over on a permanent basis.
My attorney hasn’t scheduled a pendente lite hearing. Why would that be?
You should ask your attorney directly, but there are a lot of reasons why a pendente lite hearing might not be scheduled. For one thing, if you’re already receiving support, either informally or by agreement, it may be that your attorney thinks that what you’re receiving is MORE than what you’d receive in court. Ask him why, and let him explain his points, and make a decision whether you’d prefer to push it in court (keeping in mind, of course, that it’s always a gamble to go to court, and you could lose). I can’t read your attorney’s mind, but chances are there’s a good reason why he isn’t pushing a pendente lite hearing.
If your husband is already paying the mortgage, for example, you may feel like you’re not receiving support, but, chances are, the court would classify that as support—and might order that you receive support, though less than the mortgage, and you have to pay the mortgage, too. It’s always a risk.
Making decisions related to strategy is complicated, and that’s what you hire an attorney for. If you have questions about the way your attorney is handling your case, ask him. If he can’t give you a good answer, you’re always free to get a second opinion from another attorney. You may prefer not to, of course, because of the expense involved, but it’s not ideal to spend months doubting your attorney’s choices at every turn. Ask the questions you need to ask now so that you know when it really matters you’re in good legal hands. A pendente lite hearing is an important first step in a divorce case, so it’s important that you come prepared and knowing what to expect. For more information or to schedule an appointment with one of our attorneys to discuss an upcoming pendente lite hearing (or to file for divorce so that you can get yours scheduled), give our office a call at (757) 425-5200.