Your divorce won’t get resolved overnight.
In fact, it can take years to finalize your divorce (the longest I’ve seen personally is 7 years).
But life doesn’t stop while you’re going through a divorce. Quite the opposite.
In order to address issues that arise during the divorce process, you or your spouse may file a motion with the court requesting pendente lite relief. These temporary orders can address any number of different issues.
In this guide, I’ll explain exactly what pendente lite means, how it works and give you an idea of what to expect.
With that, let’s get started.
- What is a pendente lite order?
- Common types of pendente lite orders
- What can I expect at a pendente lite hearing?
- An example of how pendente lite may be applied
- Can pendente lite orders be modified?
- What not to do if you’re seeking pendente lite orders
- More FAQs
What is a pendente lite order?
First things first. It’s pronounced pen-den-tay lee-tay (not “light”).
This Latin term has been around for about 300 years and means “pending the litigation.”
Pendente lite applies to temporary court orders that are in effect while a matter is pending. Although commonly associated with divorces, pendente lite can apply to other legal matters as well.
In a divorce, it is usually applied to provide various forms of support for a lower-income spouse while a divorce moves forward. Pendente lite is an action that makes it easier to facilitate a fair form of justice without unfair external burdens that might compromise a particular legal process.
Pendente lite orders generally stay in effect until a case is settled, either at the end of a trial or when a settlement agreement has been reached. Once a pendente lite order has been put in place, it is possible to seek a change in the orders, but the process is not easy.
All jurisdictions have individual ways of determining the amount of pendente lite that should be awarded. Some states are governed by strict statutes while others have more flexibility built in to determine how much a spouse might be entitled to receive.
For example, in California, courts can determine temporary spousal support by looking at a guideline calculator. Family law attorneys often use this calculator to assist clients in trying to anticipate what they might receive.
It is possible to bypass the courts completely when the two parties can reach an agreement through negotiation or mediation and submit it to a court for approval.
Common types of pendente lite orders
In a divorce, the most common types of pendente lite orders are temporary alimony, child support, and child custody. But pendente lite orders can be issued for a variety of issues, such as these:
- Blocking or restraining the dissipation of assets
- Maintaining health insurance and life insurance
- Payment of unreimbursed health care costs
- Paying for housing expenses
- Payment for community property debts
- Sole possession of family-owned vehicles
- Possession of the marital home
- Maintaining other marital assets such as vacation properties, etc.
- Attorney fees
- Restraining orders where domestic violence is present
- Supervised visitation if drug or alcohol abuse is present
- Payments for divorce experts (forensic accountants, custody evaluators, etc.)
As you can gather, just about anything that has an impact or a cost attached to it can be fair game in a pendente lite motion.
With important situations involving alimony, child support, and custody, it’s best to retain an experienced family law attorney to protect your rights, as opposed to attempting to navigate the legal system on your own. Making a good first impression on the court by drafting an airtight pendente lite motion is critical to obtaining the best possible outcome.
You want clear and concise direction backed by the courts when it comes to receiving funds or in determining custody and visitation issues. Having this clear direction helps you to avoid conflict as you work through your divorce.
What can I expect at a pendente lite hearing?
A judge will look closely at your marital lifestyle when trying to determine if you should be granted a pendente lite award.
This means you will have to do considerable work in advance of your hearing to gather pertinent financial records, which you will probably have to do at some point anyway if you’re in a contested divorce.
Specifically, a court will want to know more about:
- Your marital residence
- Other properties or real estate you and your spouse own
- Status of savings, checking and investment accounts
- Descriptions of real property such as cars, boats, motorcycles, airplanes, recreational vehicles or other large or expensive items
- Vacations that you have taken in the past
- Entertainment expenses
- Household furnishings and collectibles
- Employment status for each spouse
- Gifts and inheritances from family members
- Children’s expenses such as for child care, schools, tutors, after-school activities, etc.
- Available cash on hand
- Personal expenses that are run through a business
To accomplish an accurate analysis, you may need to retain an accountant who will assist you in preparing a “lifestyle analysis.”
This information is critical because often times it sets the tone for the entire divorce and could have a direct impact on the final outcome of your case. Keep in mind that with this information, a judge will start to learn critical facts about your situation and start to form an opinion at the outset. First impressions can be vital as your case moves forward.
The tendency by some attorneys is to overly focus on emotional and irrelevant issues when the court is focused more squarely on statutory issues. While some of this can be introduced in a hearing, it’s best to stick to the facts, which is what a judge will do when deciding your pendente lite fate.
Judges are more swayed by cold hard facts backed up by supporting documents and other proofs.
Also, you may have never visited a courtroom before and the prospect may be intimidating. Remember that a judge is there to decide on the facts and not to purposely be mean to you, even when they rule against you.
Oftentimes, a pendente lite hearing never even makes it to the judge. Your attorney and your spouse’s attorney may reach an agreement on temporary support without the need for a hearing.
It’s common to let a judge know that negotiations are taking place which can postpone a hearing for a couple of hours in the hopes that an agreement can be reached. A preliminary agreement is then formalized and presented to the judge for approval without actually going in front of the judge.
If your hearing is litigated in front of a judge, it is usually a short event, less than an hour in most cases.
Each side has takes time to present their evidence, question witnesses, and make their arguments. Usually, the evidence and witnesses are specifically related to income and expenses. You and your spouse 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.
After this, the judge will issue a ruling, and your hearing will be over.
Learn More: How to Prepare for a Divorce Hearing
An example of how pendente lite may be applied
Here’s an example of how pendente lite relief might play out in a court. We just wanted to give you a ballpark idea of what the outcome of a pendente lite order might look like.
The wife of a corporate executive applied for pendente lite relief with the court. In her request, she alleged that her husband made more than $250,000 annually.
By mutual agreement, she had been a stay-at-home mom for their two children over the last several years of marriage and was now seeking temporary support and attorney fees.
Ultimately, the court issued the following orders:
- Temporary spousal support of $5,000 per month
- Temporary child support of $2,500 per month
- 50/50 share of mandatory child support add-ons (unreimbursed medical expenses for the children and childcare so you can work)
- $30,000 for wife’s attorney fees
Since wife was living in the family residence, the court also ruled that she was responsible for paying the mortgage, property taxes, and other housing expenses.
Can pendente lite orders be modified?
Yes, but it’s not necessarily an easy ruling to change.
In most jurisdictions, you first need to show that there has been a material change of circumstances in order to seek a modification.
If a court issues a pendente lite order that you think is unfair, you can challenge it when you go to trial, or you can change the terms in your divorce settlement agreement.
What you’ll be battling is the perception that if pendente lite orders work well on a temporary basis, they might also work well on a permanent basis. That line of reasoning means a judge may consider making them permanent in a final divorce decree.
However, if you do want to challenge a pendente lite ruling, you’ll need to file a new pendente lite motion with the court. This will let the court know you’re not happy with the current terms and you want to change those terms by asking a judge to reconsider his initial ruling. Most jurisdictions refer to this as a motion for reconsideration.
It’s a smart move to consult with an attorney to determine if you have any grounds for reconsideration, based on the laws of your state. Most jurisdictions don’t allow you to file a motion to reconsider the same information that’s already been decided, so you’ll need to present new evidence to have your motion heard. You may also be able to try to prove to the judge that the initial evidence was misunderstood or misinterpreted during your initial hearing.
In some cases, you may have been impacted by a significant change in your personal situation, such as a job loss or serious illness. These could be valid reasons to seek a modification as well.
You and your attorney will need to prepare and file a motion explaining your reasons for seeking a modification.
In most jurisdictions, you have a limited time to apply for a motion of reconsideration, so make sure you are aware of what your particular deadline is. Generally, that deadline is fairly short, so you’ll need to act quickly.
After you file, a court clerk will assign you a date for your new hearing.
What not to do if you’re seeking pendente lite relief
Pendente lite support is intended to maintain the status quo on an interim basis. This means it is not a time for either side to enter into anything that is unreasonable or could cause the court to reconsider their decision about an award. For example…
- Don’t make any big-ticket purchases like buying a new car, taking a trip to Europe, buying expensive jewelry, or running up plastic surgery bills as you prepare to reenter the dating scene.
- Don’t make large scale renovations to your home, take out a home improvement loan or refinance your house.
- Don’t become combative with your spouse. You can do this in several ways such as denying them access to your children, moving and not telling them where you now live, attempting to move out of state, sending threatening or obnoxious correspondence or emails, refusing to share parenting information (health, school, activities) for your children, or any other number of ways that could be construed in a negative way.
- Don’t openly date with a wealthy new boyfriend or girlfriend. Don’t buy expensive gifts if you’ve got a new special person in your life. Be extremely cautious about what you post about your relationships on social media.
- Don’t cash out all of your financial accounts, or make big loans to relatives. It could easily be seen as a way to hide assets. Keep paying your bills, file your taxes, keep beneficiary designations the same and only make small but reasonable donations to charities you support.
- Don’t quit your job or take a lower-paying job as a way to get out of your temporary obligation.
- Don’t ignore court orders. (Enough said!)
- Don’t hire an attorney who is way too aggressive. Find representation that is firm and has your best interests in play at all times. But also understand where to draw the line. Do not let your emotions and the need to punish the other side get the best of you. It will only cost you in the long-run.
Is pendente lite automatically awarded in pending divorce cases?
No. You need to file a motion with the court to seek temporary financial assistance from your spouse while a divorce is in progress.
How long does temporary support last?
Until a permanent order is put in place, usually as part of a settlement, or a modified order replaces the existing pendente lite order.
Do I need to be legally separated to receive a pendente lite award?
No. You can receive pendente lite benefits while still married when your divorce case is in progress.
What can I do if my spouse found a way to have a pendente lite hearing postponed?
if you are struggling to make ends meet, and you need assistance in maintaining your household and standard of living, you should file an emergency motion with the court to compel them to rule on your pendente lite request.
What are my options if my spouse does not pay pendente lite support as ordered by the court?
It means your spouse has violated a court order and could be in some serious legal trouble. You will need to go back to court immediately to force your spouse to comply or run the risk of incurring penalties.
Can I punish an unfaithful spouse by seeking a large pendente lite support award?
No. Adultery is not an acceptable reason to seek a pendente lite award. Temporary support is purely practical and provides the resources necessary until you are able to work out a final settlement agreement. There is no punitive element attached to it.