Temporary Motions (aka Pendente Lite Motions) in Virginia Divorce Cases

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In divorce and domestic relations cases, the final trial is typically set several months out. Because of this there is often a significant period of time between the filing of the complaint and the trial date. Realizing this, it may become necessary to file a temporary or pendente lite motion in order to deal with particular issues prior to the trial date. For example, in a divorce case, because it can be several months until the court decides issues, it is often necessary to get a temporary or pendente lite child support and/or spousal support order. This temporary support will last until the trial court sets the “final” amount at trial.

The most common issues that are dealt with in temporary motions include:

1. Temporary Spousal Support. In some cases, a spouse may need immediate financial support and be unable to wait months for the court to sort out the ‘final’ spousal support award. For this reason, the court may award a temporary monthly spousal support payment.

While there is no ‘formula’ for a final spousal support award, some courts do use a formula to determine temporary spousal support. For example, all Juvenile & Domestic Relations District Courts in Virginia use the formula set forth in Virginia Code Section 16.1-278.17:1. This formula sets temporary spousal support in cases where there are no children (and therefore no child support) as follows:

Monthly Spousal Support = (30% of the paying spouse’s gross monthly income) – (50% of the recipient spouse’s gross monthly income)

In cases where there is child support, the formula would be:

Monthly Spousal Support = (28% of the paying spouse’s gross monthly income) – (50% of the recipient spouse’s gross monthly income)

Note that if your case is in Circuit Court, there is no statewide formula as there is in Juvenile & Domestic Relations District Court. Each Circuit Court may or may not have its own guidelines for temporary spousal support. For example, the Fairfax County Circuit Court temporary spousal support guidelines are identical to the formula used in Juvenile & Domestic Relations District Court.

2. Temporary Child Support. As with spousal support, a party may need child support before the final trial date. The court can enter a temporary child support order to address this problem. The formula used to calculate temporary child support is the same used to calculate final child support. This formula is set forth in Virginia Code Section 20-108.2.

3. Temporary Custody and Visitation. Courts may also enter temporary orders regarding custody and visitation for minor children. However, it is important to note that different courts have different policies. Some courts will only enter such temporary orders in special circumstances, whereas other courts have a more liberal policy toward these kind of temporary orders. In fact, the various policies of each court with regard to temporary custody and visitation arrangements are so complex that many attorneys have trouble sorting through the confusion. Because of this, working with an experienced attorney is always advisable.

4. Exclusive Use and Possession of the Marital Residence. In divorce cases, the Court can order that one spouse has exclusive use of the marital residence, forcing the other spouse to leave the residence for the duration of the case. Pursuant to Virginia Code 20-103(B), such an order may be made when the party asking for it can show a “reasonable apprehension of physical harm.”

5. Preserving the Marital Estate. Virginia Code 20-103(B) also gives the court the ability to preserve the marital estate for equitable distribution. This can include a number of actions such as: limiting access to (or dissipation of) assets; ordering that the mortgage for marital real estate be paid; and similar actions. The court can also, in some circumstances, award preliminary counsel fees to permit a party to ‘carry on the suit.’