General Assembly Changes Law Related to “Pendente Lite” (Temporary) Support

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General Assembly Changes Law Related to “Pendente Lite” (Temporary) Support

By Krista N. Yancey, Associate Attorney

The Virginia General Assembly has recently changed the law pertaining to pendente lite support orders. The amendment—which overwhelmingly passed in both the Senate and House of Delegates and will become effective July 1, 2016—provides that “[pendente lite support] shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise.”[1] The amendment also allows the court, upon a party’s request, to specify the particular source from which the ordered support should be paid.

In Virginia, property is divided at divorce using the “equitable distribution” approach. Property is valued and classified as either “marital” or “separate” property. In very general terms, marital property is property acquired with marital funds, often earnings during the marriage, and separate property is property acquired with separate funds, usually from earnings before the marriage, after the date of the parties’ separation, or from gifts.[2] Marital property can be divided by the court at divorce, whereas separate property cannot.

Typically, parties are separated for several months to a few years before their property is divided—either by mutual agreement or at the order of a judge. Often, this period between separation and a final resolution is one of uncertainty. For reasons good or bad, it is not uncommon that marital property has been devalued or depleted once the time has come for the property to be divided. At trial, in considering how to divide property, courts may consider the effect of one party’s dissipation of marital assets (also referred to as the concept of “waste”) as a negative contribution to the marriage. However, the devaluation of marital property or depletion of marital funds is not always waste. Marital funds often need to be spent on living expenses, attorney’s fees and other costs related to the marriage and divorce.

During this uncertain time, pendente lite orders can be helpful. Pendente lite orders are temporary orders that remain in place until the final resolution of all divorce matters, and can be achieved by agreement or after a brief hearing before a judge. Pendente lite hearings are not full trials; the issues and evidence presented are limited.

Pendente lite orders allow for at least a temporary resolution to the issues that affect parties’ daily lives most. While the applicable statute explicitly states that pendente lite orders “shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause,”[3] the temporary custody and visitation schedules and support amounts set by these orders can establish a routine or pattern for the family.

In the past few decades, several Virginia cases have established that marital property can be used to pay pendente lite child and/or spousal support.[4] Absent an order from the court “preserving” the marital estate (i.e., explicitly preventing either party from withdrawing from marital accounts or otherwise depleting equity in marital property), the support payor may use marital funds to pay temporary support.

Unfortunately for the support recipient, this can lead to the depletion of his or her share of marital property, come time for the final division of the assets. Without a court order or agreement preventing the practice, the support payor may pay support from a joint bank account or a retirement account or may even be able to draw on a line of credit on marital property, such as the family home. Case law is clear that the use of marital funds to pay temporary support is not considered waste.

This recent change in the law helps preserve the value of the support recipient’s share of marital property. In general, this amendment benefits support recipients. It prevents the party ordered to pay support from using marital property to pay temporary support, thereby preserving the value of marital property yet to be divided.

The domestic relations attorneys of Compton & Duling, L.C. have experience with pendente lite and final divorce, support and equitable distribution proceedings as well as achieving resolutions out of court. Contact Compton & Duling, L.C. at (703) 583-6060.

Disclaimers: This article is limited in scope and depth. We recommend retaining an attorney licensed in your jurisdiction because each particular family situation is unique. This article is not intended to create an attorney-client relationship with the reader. Further, this article is not intended to provide tax or financial planning advice.

[1] S.B. 70, 2016 Gen. Assemb., Reg. Sess. (Va. 2016).

[2] See Va. Code § 20-107.3 for the full statutory definitions of marital and separate property

[3] Va. Code § 20-103(E).

[4] See e.g., Wright v. Wright, 61 Va. App. 42, 737 S.E.2d 519 (2013); Thomas v. Thomas, 40 Va. App. 639, 580 S.E.2d 503 (2003); Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (1990).