One of the biggest concerns for individuals embarking upon divorce litigation, and the most common area of motion practice during the pendency of a divorce, involves interim access to a divorcing couples’ assets and interim payment of expenses/support. In the vernacular of family law attorneys, these issues fall under the category of “pendente lite support.”
The interim financial issues incident to divorce can often seem as daunting as issues concerning ultimate resolution, while also being ripe for litigation if the parties are not acting reasonably. The cause of the dissension stems from the reality that the shared marital enterprise is over. Further, if the parties aim to separate immediately, the reality of having to support two households with the same income often creates burdens that require unique solutions. Worse yet, if one party controls all of the earnings and all of the assets, the other party is at their mercy absent court intervention.
Ultimately, when presented with a request for pendente lite support, the Court will aim to maintain the status quo. At times, this is simpler said than done due to various factors, the least of which is the parties’ inability to agree or accurately set forth their true monthly expenses. When the parties are outspending their earnings, the problems become even more pronounced. In the end, however, the Court will ensure that the set expenses (i.e., household expenses (mortgage, utilities, etc.), car payments, insurance, debt obligations, etc.) are covered, at which point the personal expenses (i.e., food, gas, entertainment, clothing) will be covered with the remaining funds in an equitable manner so that neither party is left with nothing, despite both parties likely having less than they wish.
As to covering the costs of litigation, the Court typically has two options. If the parties’ incomes are sufficient to generate a surplus, litigation costs will first be paid from earnings. Otherwise, the Court will look to the parties’ assets or impending bonuses and tax refunds to cover these costs. By incorporating two simple words, “without prejudice”, the Court can effectuate a preliminary division of the parties’ assets while leaving open the determination of whether one party is due a credit upon final resolution of the matter. Fortunately, Courts generally recognize the need to fund litigation expenses and will endeavor to find a workable solution so that both parties can pay these fees.
The key takeaway, therefore, is that when staring down the inevitability of a divorce, one can take solace in the fact that if reasonable compromise between spouses fails, the Court is more than willing to step in and ensure that the bills are paid, that there is food on the table, and that each party has a fair opportunity to utilize their assets to fund the impending litigation.
Contact an experienced family law attorney today to review your divorce case.