When you file a case for divorce, you are asking the court to make decisions about your property, your children and support that one of you will pay to the other. If you and the 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 decree of divorce and, once the judge has signed 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 there is 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 going on.
The legal name for it is “pendente lite order.” The first two words just mean “while the case is pending.” Unless the parties agree on the content of the pendente lite order, there has to be a hearing where they can each explain what they want and why. The hearing is much shorter than a trial. There are time limits put on these hearings, usually either half an hour or an hour.
Pendente lite orders are only valid while the case is pending. The final decree takes their place when the case is over and becomes the controlling order. If the case is dismissed, the order ceases to have any legal effect. Filing a new divorce case won’t bring the old pendente lite order back into effect. The parties have to start over and seek a pendente lite order in the new case.
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 decree of divorce. Temporary orders are not appealable. The only way to get a pendente lite order in front of the Court of Appeals is to allege that the judge has gone beyond the authority granted to the court by the legislature.
This procedure is particularly ugly because, not only does it alienate the judge, the Virginia Attorney General will step into the case to defend the judge’s ruling. So not only do you have to fight the party on the other side of the case, you have to fight the AG as well. This is not fight you want to have unless your back is really against the wall.
Because of the risk and expense, it is very common for the parties to reach an agreement about what the pendente lite order will say. The lawyers write it up and give it to the judge with both of their 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.
Pendente lite orders are like any court order in that you can be held in contempt if you violate them. 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 going to be in a pendente lite order, be sure you can actually do it. While rarely used, the judges have the power to put you in jail if you violate their order. And 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 end up being the one to preside over your trial. So be careful about what goes into the order and comply with, even as to the provisions you don’t like.