On behalf of Duff & Kronfeld, P.C. posted in Family Law on Thursday, January 17, 2013.
For those of you who have not met Sally (a fictional character) and Henry (also a fictional character), from my last blog, these characters have been married for 12 years and have three young children. Henry is a partner in a prestigious D.C. law firm and Sally is a stay-at-home mom. Henry met an associate, Cassandra, at his law firm and has decided to leave Sally for a more exciting lifestyle. To pay for his new found freedom, Henry stats diverting funds from joint accounts into accounts titled solely in his own name.
What is a pendente lite hearing?
Pendente Lite is a Latin term meaning “pending litigation.” Once a complaint for divorce is filed, there will be a waiting period before a final trial will take place. Due to the Court’s crowded docket, it could easily take up to a full year to have a custody and equitable distribution trial. Hence, a pendente lite hearing is held in order to determine whether interim spousal support and/or child support is warranted while the case is being litigated until the final hearing.
Sally needs both spousal and child support now, since she has no income. At the pendente lite hearing, we need to present the Court with evidence of each spouse’s income. Obviously, Sally has no income, so her part is easy. Henry on the other hand, is a little more complicated. Henry has his salary, his bonuses and his partnership share of the profits. The best evidence we can have for Henry’s income are the parties’ tax returns and Henry’s leave and earning statements from his employer.
In my last blog, we discussed the types of financial documents I asked Sally to bring to my office. What if Henry removed all the financial documents from the house? In many instances, opposing counsel and I will work out an agreement to provide us with the documents we need for the pendente lite hearing. If not, we will send out discovery requests consisting of interrogatories and a request for production of documents to Henry for him to provide us with the necessary information.
In Fairfax, we are limited to 30 minutes for a pendente lite hearing. Normally, I will proffer Sally’s testimony and opposing counsel would be entitled to cross-examine Sally. When I say, “proffer” I mean that I personally present Sally’s testimony. For example, I would say on Sally’s behalf, “Sally is not employed and has no outside sources of income. It was a joint decision for her to quit working when they moved to Virginia in 2001. They have a daughter who is 10 years of age and two twin boys who are 8 years old. Exhibit 1 is a copy of their joint tax return showing that Henry earned $350,000.00 in 2011.” Henry’s attorney will, then, present his evidence in the same manner.
The Fairfax County Circuit Court generally will decide the amount of support based upon Virginia guidelines. Attached is the support guideline worksheet I prepared on Sally’s behalf which provides that Henry is to pay Sally $10,326.00 per month in spousal and child support. In addition to the support, I may also ask the Court to deviate upward from the guidelines due to Henry’s income, or I may ask the Court to order Henry to pay half or all the mortgage on the marital home. I would expect Henry to claim that his firm has had to lay off associates and staff due to the economy, and he is not likely to get any bonus this year. Sally’s response is that is very speculative and that Henry has made over $350,000.00 over the past several years.
Just remember: there is life after divorce! If you have any questions regarding your specific circumstance, please contact me at 703-591-7475 for a 30-minute complimentary telephone consultation.
Stay tuned for my next blog: discovery, what it entails and why many cases are won or lost during the discovery phase of a case.
Please note that if there is an emergency such as a parent planning to remove the child from the United States or one of the parties is beaten up, you will get a trial date immediately to deal with the “emergency” issues.