How do I get temporary child and spousal support?
There are at least three ways to go about seeking temporary support in Virginia. This is not an all-inclusive list, and consulting an attorney about a strategy is always advised based on specific facts and how those facts relate to the law. The three most prevalent ways are:
1. To negotiate an agreed upon amount with the other side and solidify the agreement in writing by way of a Separation Agreement or some other agreed upon contract;
2. To petition the Juvenile and Domestic Relations District Court for support; and
3. As part of a divorce case, file a Notice and Motion for Pendente Lite Relief (at the beginning stages of a divorce case in Circuit
Separation Agreements / Contracts
It is absolutely not advised to sign anything without it being reviewed by an attorney. Once the parties to a case agree to something in writing, it can be extremely difficult to undo that agreement or contract. However, if both sides can agree to something, it is almost always the most economical and least time consuming method. Courts do not necessarily need to be involved – and only if one of the parties fails to perform admirably under the contract. It cannot be stressed enough to contact an attorney prior to entering negotiations and CERTAINLY BEFORE SIGNING ANYTHING.
Juvenile and Domestic Relations Court (JDR Court)
Either spouse can petition the JDR Court for child or spousal support and/or custody. The Clerks in most of the Hampton Roads JDR Courts are wonderful people and extremely helpful. In the event a party does not have a ground or basis for divorce, the JDR Court may be the only option for jurisdiction of a spousal/child support or custody case.
Temporary Spousal Support
There are formulas used by various courts for temporary support. If you are seeking spousal support in the Juvenile and Domestic Relations District Court, then the Fairfax Guidelines are applicable by statute. The formula for the Fairfax guidelines is as follows:
A. Payor’s Income x 28 percent; (if no minor children then x 33 percent)
B. Payee’s Income x 58 percent; (if no minor children then x 50 percent)
C. Line A minus Line B equals proposed Spousal Support
It is important to mention that there are formulas in Fairfax, Richmond and Harrisonburg. Generally, a look at the Fairfax Guidelines is helpful in providing a client a range of spousal support. However, these guidelines are not binding on the Circuit Court – which is where a Pendente Lite hearing is held during the course of Divorce case. Note these guidelines are just that…guidelines…however, they can be very instructive through the course of a negotiation and what many attorneys will argue in court on behalf of their clients – even in Circuit Court.
Temporary Child Support
Virginia has adopted a child support model that is formulaic and is based on the number of children and the relative income of the parties. The statutes governing child support in the Virginia Code are Sections 20-108.1, 20-108.2 and 20-107.5. The Virginia Department of Social Services website is an excellent resource for information regarding child support and also how to enforce a child support order.
At some point shortly after the divorce case is initiated, a party can ask the court (or move the court) to hold a temporary support hearing. This is also known as a Pendente Lite Hearing. This type of hearing permits a party to ask for temporary help pending the outcome of a divorce. If necessary, the court can temporarily order exclusive possession of the marital home to one of the parties, custody and visitation of minor children, fees to carry on the suit; non-harassment conditions; and a limited number of additional orders regarding the marital assets and other issues such as temporary child and spousal support. As of July 1, 2011, a Judge can also order joint and/or individual debts be paid by one party at a Pendente Lite Hearing.
Putting on one of these temporary support or Pendente Lite Hearings can be complicated – and almost like a mini-trial within a larger divorce case. It is important to speak with an attorney to make sure the proper papers are filed, the proper evidence prepared, the proper evidence requested from the other side beforehand, and most importantly, that the evidence is presented to the Court in the best way possible. At this stage of the process, sometimes a family is split into two households for the first time and the same amount of money that was supporting one household is now supporting two. It is important to set realistic expectations as this is often an extremely stressful time and some families even have financial troubles to begin with.
Another reason why a Pendente Lite Hearing should be taken seriously is that once a Judge rules at this hearing, the parties will most likely be stuck with the result until either the divorce trial occurs (which can be many months down the road) or unless or until the parties agree otherwise.
The Temporary Support Hearing (Pendente Lite Hearing)
It is extremely important to discuss the temporary support hearing with an attorney. In many cases, a divorce case is initiated in the Circuit Court and one party will often file a Notice and Motion for Pendente Lite Support. This is a legal document asking the court to hold a hearing whereby one party asks the Court to award temporary support, custody (if applicable), and a myriad of other issues – perhaps even exclusive possession of a marital home. The attorneys will often consult the Fairfax Guidelines on Support, and often argue specific facts about the case. Because pendente lite support has to be determined in a very short period of time in the beginning stages of a case, it is generally a function of weighing the income of the parties against their relative expenses without taking into consideration the more complex issues that will then be later litigated at the actual divorce trial.
Thoughts on Temporary Support
Like so many aspects of a divorce case, temporary support and the Pendente Lite Hearing can be somewhat complicated. It really doesn’t have to be overwhelming but it should be taken very seriously. If a judge rules on a case in JDR, a party can appeal that case to the Circuit Court – but this could involve added expense and additional delay.
Once the Judge rules on a temporary support case in Circuit Court at the beginning stages of a divorce case, the parties are often left with that ruling until the divorce trial, which can be many months in the future.
An attorney can help put together the necessary documents to properly argue for temporary support in court and also help prepare witnesses to testify as well. We have our clients fill out an Income and Expense Sheet – which looks a lot like a budget and we also visit the courthouse with our client before the actual day of the hearing. It is important to be as comfortable and prepared as possible, note all of the expenses, including child and health insurance that will be maintained while the divorce case is ongoing, and then really present your evidence in the best light possible. As with everything else, there is no substitute for seeking the advice of an attorney. Although your facts may be similar to other cases, how your facts relate to the law can have extremely different reactions by the court. On top of that, judges are human beings and can issue rulings for a variety of reasons and based on a variety of factors. Putting your best foot forward with the help of an attorney and properly preparing to testify and present evidence in JDR Court or at the Pendente Lite Hearing in Circuit Court is strongly advised.