Pendente Lite Orders in Virginia Divorce Cases
When you file a divorce case, you ask the court to make decisions about your property, your children, and the support that one of you will pay to the other. If you and your spouse don’t reach an agreement on these issues, there will be a trial in which both sides can present evidence and arguments in favor of the solutions they each want. After considering the evidence and arguments the judge will make a decision. That decision will be incorporated into a final divorce decree and, once the judge signs the decree, the case will be over unless someone appeals the decision to the Virginia Court of Appeals.
The trial will not be held immediately after the case is filed. Months and, in some cases, years will pass before a trial. To deal with urgent issues like temporary custody of the children, possession of the former marital residence, and temporary support while the case is pending, the parties can request a temporary order that will settle these issues while the case is pending.
The legal name for it is “pendente lite order.” The first two words mean “while the case is pending.” Unless the parties agree on the content of the Pendente lite order, there must be a hearing where they can each explain what they want and why. The hearing is shorter than a trial. There are time limits for these hearings, usually half an hour or an hour.
Pendente lite orders are only valid while the case is pending.
The final decree replaces the Pendente lite order when the case is over and becomes the controlling order. If the case is dismissed, the order ceases to have legal effect. Filing a new divorce case won’t reinstate the old Pendente lite order. The parties have to start over and seek a Pendente lite order in the new case.
Pendente Lite Orders are Temporary
One of the biggest problems with Pendente lite orders is that they are not appealable because they are only temporary. In general, you can only appeal a final order like the final divorce decree. Temporary orders are not appealable.
Appealing Temporary Orders
The only way to get a pendente lite order in front of the Court of Appeals is to allege that the judge has acted beyond the authority granted to the court by the legislature. This procedure is particularly troubling because not only does it alienate the judge, but the Virginia Attorney General will step into the case to defend the judge’s ruling. So not only do you have to fight the other party, you have to deal with the AG as well. This is not a fight you want unless your back is against the wall.
Because of the risk and expense, it is very common for the parties to agree about what the Pendente lite order will say. The lawyers write it up and give it to the judge with both signatures after words like “we ask for this” or “seen and agreed.” The judge checks it over then signs it and the order remains in effect until it is modified, the case is dismissed, or it is superseded by the final decree.
Contempt orders
Pendente lite orders are like any court order. If one of the parties violates the pendente lite order, they can be held in contempt. That means if you are ordered to return the children at 6:00 p.m. on Sunday and you keep them until Monday you can be held in contempt. If you fail to pay the support specified in the order, you can be held in contempt. If you transfer property frozen by the order, you can be held in contempt.
So before you agree to something that is in a pendente lite order, be sure you can actually do it. While it is rare, judges can put you jail you if you violate their order. Nothing annoys them more than having someone “mop the floor with my order” (as the judge put it in one of my cases where the violation was serious and deliberate). The judge you annoy in the pendente lite proceeding may preside over your trial. So be careful about what is put into the order. Once a judge has signed it, you should comply with it, even if you disagree with some of its provisions.
