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Divorce and custody matters don’t simply have a “before” and “after.” These legal processes take time. Before a divorce or breakup, couples manage their finances and time with their children together. Afterwards, a divorce decree or final child custody determination set the terms by which they must abide. But what happens in between? Without an ongoing relationship, or the structure of a consent agreement or court order, parties can find themselves plunged into uncertainty. Who’s paying the mortgage? Who drives the family car? Where are the kids living, and with whom? In Maryland, a pendente lite hearing is often how these, and other questions, get answered if the parties are unable to agree to a cooperative solution.
Pendente lite is Latin for “during the litigation” or “during the suit,” and a pendente lite hearing is a court hearing to determine how certain issues will be handled pending a final resolution of a family law matter. Issues commonly addressed during a pendente lite hearing include child custody and access (visitation), child support, and alimony. Attorney fees, suit money, use and possession of the marital home and family vehicles, and maintenance of health insurance for the benefit of a spouse and children may also be addressed at these hearings.
Generally the goal of a pendente lite hearing is to maintain the status quo as far as is reasonably possible until the parties can reach a settlement agreement, or the court can make a final decision on the merits of the case. However, if one spouse is not getting reasonable access to marital money or regular access with their children, then the pendente lite hearing is meant to ensure this situation is remedied during the litigation process. Specifically, these hearings are intended to ensure some stability and normalcy for kids, and to make sure that parties have adequate financial support while the case is pending.
Not necessarily. These hearings do not happen in every case, or even in most cases. In some situations, you may be better off not requesting a hearing, and the decision whether to do so can be a strategic one. For example, let’s say that your spouse is continuing to pay the monthly mortgage after moving out of the marital home, and is still making your car payment and the payment on your joint credit card, which you use for groceries, gas, and other household goods.
Your attorney may decide that requesting a hearing could cost too much in attorney’s fees and/or risk antagonizing your spouse unnecessarily, causing them to stop these payments and pay only what the court orders them to, which might be much less. Conversely, if a spouse is not getting any money, or regular access to their children, then a pendente lite hearing becomes essential.
Whether to request a pendente lite hearing depends heavily upon the specific facts and circumstances of your case. If you have an informal, or formal, agreement with your spouse that works for both of you, you might want to forgo a pendente lite hearing—but discuss the issue with your attorney to see what makes sense in your situation.
Pendente lite hearings are not automatic, but a hearing will take place if either party requests it. The request may be made in writing or orally at the parties’ Scheduling Conference. The Scheduling Conference, as the name suggests, is for the purposes of figuring out how your case will unfold and what events need to be scheduled to help it along to conclusion.
The court will generally set aside one to six hours for the pendente lite hearing on the next available hearing date, although since Covid some courts are limiting these hearings to no more than three hours. Generally, pendente lite hearings take place within three to four months after the filing of a divorce complaint. The hearing is often the first time the parties to the divorce or custody matter appear in court to give actual testimony.
These hearings are usually held before a family law magistrate (formerly referred to as a family division master), though in some cases they may be heard by a judge. A family law magistrate is not a judge, but is a judicial officer of the Circuit Court who is appointed by the court’s judges to hear certain matters, including pendente lite hearings and make Recommendations (rather than rulings). Parties can present evidence as well as their testimony, but a pendente lite hearing usually is not long, nor is it considered final.
The pendente lite hearing is not the place to hash out every grievance of your marriage or relationship in front of the court. In general, the magistrate (or judge) is interested in knowing what is required to maintain the status quo or prevent immediate harm, so evidence and testimony will usually center around income and expenses. Each of you will testify regarding your financial needs and resources to the judicial officer. You will probably have prepared, along with your attorneys, income and expense sheets known as Financial Statements. Your attorneys will provide these to the magistrate to give a picture of your respective financial situations at the time of the hearing.
The magistrate will consider your testimony and the evidence presented before making a recommendation (and a judge will render a ruling). The terms of the recommendation or ruling, with one exception, will govern the parties’ actions while the litigation is ongoing. For instance, the court might order one party to pay the other a certain amount of monthly alimony and child support during the case, and put in place a temporary order regarding child custody and child access.
If the temporary order ends up working out well for you and the other party, you may decide to incorporate some or all of its terms into your ultimate settlement of the case. However, you are not required to do so, and if your divorce or custody case goes to a trial, the judge will consider all the evidence in the case before making a final decision, which may look different from the temporary order.
If you think the magistrate has wrongly decided the matter at your pendente lite hearing, you do have some recourse. You (or the other party) have ten days from the date of the Recommendations when youcan file Exceptions to the Magistrate’s Recommendations, which is along the lines of a mini appeal (and if the matter was heard by a Circuit Court judge, you can file a full-fledged appeal to the Appellate Court of Maryland if you disagree with that ruling). If Exceptions to the Magistrate’s Recommendations are filed, the Exceptions process will be reviewed and heard by a judge of the Circuit Court. We will discuss the process of Exceptions in a future blog post.
To learn more about pendente lite hearings, please contact Strickler, Platnick & Hatfield to schedule a consultation.
We practice in Maryland, Virginia, and Washington, D.C.
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