Mis-steps and Mistakes During the Pendente Lite Period: what NOT to do!
by Thomas Mulinazzi
After a case is filed certain behaviors are expected of the litigants in a divorce case. Unfortunately, for the litigant very few, if any, of these expectations are written down anywhere and the Court will not provide this information. Most litigants are already feeling confused and anxious about their future, how they will pay for bills, what will happen in the court process, but now each has to worry about how to make decisions in the reality of their newly separated family.
The short answer is that each litigant should do everything he or she can to maintain the status quo and therefore change as little as possible. That is easier said than done when the family now has to pay for two households and the associated bills. Sometimes, a spouse feels entitled to something that he or she has gone without for years of unhappiness or dissatisfaction during the marriage and as a result he or she feels compelled or entitled to make an unusual purchase. It is probably also a lot harder to communicate with your soon-to-be-ex and you may be getting a lot more questioning from your children and your friends and family. This blog is intended to inform you on the law and in doing so implore you NOT to make too many changes in your lifestyle during the pendency of your case.
The “pendente lite” is a Latin term meaning awaiting or pending litigation. Maryland Law gives Courts the authority to make temporary pendente lite orders on matters such as physical and legal custody of children, child support, child access schedules, who gets exclusive use and possession of the family home, furnishings, and vehicle, alimony and/or financial support, and attorney’s fees and suit costs where appropriate. Again, these orders are by definition temporary and only operative during the pendency of the litigation. These issues and others (division of property, grounds for divorce, etc.) are revisited and re-litigated at the final divorce trial absent a binding partial or full settlement agreement. Pendente Lite Orders are meant to reestablish the status quo, to give the children stability, and to ensure that both spouses have enough financial support.
In its essence a Pendente Lite Order is meant to establish an equitable/fair temporary status for everyone. For this reason, it is imperative that you do not do anything or buy anything that is unusual or unreasonable. The following is a non-exhaustive list of some of the things you should NOT do during a divorce:
- Parenting: refuse to tell your spouse where you live, deny access between the children and the other parent, disparage the other parent, move far away or out-of-state with the children, send aggressive and obnoxious emails or texts to the other side, refused to tell the other parents about your children’s appointments, refused to share information such as grades and test results regarding your children with the other side, fail to consistently request time with your children, failed to consistently attempt to communicate with your children,
- Purchases: Buy a new car, take a vacation (esp. a lavish one), get expensive plastic surgery,
- Home: make renovations to your home, buy large ticket items (furniture, car, timeshare, etc.), take in a roommate, refinance your house or take a HELOC,
- Dating: openly date, introduce your children to a special friend, post scandalous or hurtful information on social media, loan money or buy gifts for special friend,
- Financial: donate large sums of money to charity or give away money or loan money to family or friends, cash out stocks or retirement funds, stop paying your bills, remove spouse from insurance or beneficiary designations, sign spouse’s name to anything especially tax returns, fail to file taxes, unilaterally take deduction,
- Employment: quit your job, take a much lower paying job, relocate your job
- Legal: fail to follow court orders, get arrested, abuse alcohol or drugs, file bogus criminal charges or court pleadings against the other side or family members of the other side,
- Attorney: Finally do not hire an overly “aggressive” attorney who may be inclined to tell you doing any of these things and who may create more acrimony in your family and in the court case.
All of the bad decisions above represent a deviation from the status quo and all are not good for the family. The Court will see these actions as selfish and destructive to family harmony and this will influence the way the Court awards relief, especially on a pendente lite basis. For example, the Court may decide if you have extra money for luxuries then you have extra money to pay your spouse or your spouse’s attorney’s fees. With regard to the poor parenting choices above the Court may find that you lack the desire and ability to co-parent and as a result your parenting time may be limited and the other parent may be awarded sole legal custody. Often, once these mistakes are made the tone is set for the entire litigation and without substantial remediation by the offending spouse the effects of the poor decisions immediately after separation linger and continue to poison the outcome at the final divorce hearing several months later.
After a separation, many people find themselves in seemingly desperate financial straits and they may consider turning to one of the desperate solutions listed above. This is not uncommon and if the situation is handled appropriately by an experienced family-centered lawyer there may be agreement from the other side for a temporary repair to the house, a refinancing of the home, a necessary purchase etc. While some of the decisions listed above are patently bad choices and should never happen during litigation, others can be better managed by you and your attorney and as such the negative effects can be mitigated.