Pendente lite alimony in Frederick, Maryland. What it is and what it is not.
Divorce lawyers in Frederick, Maryland will tell you that Maryland has three kinds of alimony. Those three types of alimony are:
- pendente-lite alimony
- rehabilitative alimony
- indefinite alimony.
Rehabilitative and indefinite alimony can only be obtained by an agreement as described in a preceding article or as part of an absolute divorce. Pendente lite alimony can also be part of an agreement. Like the others, if there is not an agreement, the court can also award pendente-lite alimony. That decision is made at a pendente-lite hearing.
First, let’s tackle this term “pendente-lite.”
Pendente-lite is a latin term translated as “awaiting the litigation.” It means exactly that.
A pendente lite hearing is really the halfway point in the divorce process. All pendente-lite decisions (including alimony) are temporary and, as such, are entitled to potential revision or reversal at the time of the final judgment of divorce.
As described above, the reason the hearing and any alimony (or other relief) is called pendente-lite is because it is decided in the midst of the divorce case. For example, the judge may grant a mother custody “pendente-lite” or “awaiting the litigation” at such a hearing and then reverse his/her decision at the final divorce and grant custody to the father.
The life of a Maryland divorce case is as follows: First, the parties file and perhaps cross file for divorce. Next, they answer whatever complaints were filed and/or exchanged. Some considerable period of time later (usually months) there is a pendente-lite hearing. Finally, the parties obtain an a judgment of divorce (limited or absolute).
The process in a contested case takes months, often a year, to complete. It stands to reason that the parties can’t have their whole lives up in the air for all that time?
If decisions can’t be agreed upon by the parties, then the court must make those decisions. Decisions such as: Who will leave? Who will stay? Where will the children live? Who will be responsible for their care? When will they be with whom? How will the bills be paid?
Finally, questions of money must be determined. In divorce there is inevitably the fact that often one party does not want to be divorced. In such a state of mind, people are not quick to the idea of paying money to (or on behalf of) someone who is forcing a divorce upon them.
Often, the only weapon a person has left in such a situation is to withhold support or even simply withhold cooperation in the process. It is a sad feature of the human psyche that if you love someone and they do not love you back; there is a desire to hurt them in almost any way that you can.
People in such a state of mind will often intentionally NOT pay the phone bill…the car insurance..the car…and even the rent or mortgage. An even darker reality, is that some people think such economic suffering will further their case by “starving out” the other side. That happens, but its hardly a long term solution to the problems. This is particularly true where children are involved.
If there is a pendente lite hearing the judge can generate an order on a host of issues, only to potentially discontinue that order as part of the final divorce. So, on to pendente-lite alimony…what it is, what it is not… and what the judge takes into consideration.
Determinations regarding pendente-lite alimony are made pursuant to the Maryland Annotated Code, Family Law Title 11 section 11-102:
§ 11-102. Award — Alimony pendente lite
(a) In general. — Except as provided in subsection (b) of this section, in a proceeding for divorce, alimony, or annulment of marriage, the court may award alimony pendente lite to either party.
The criteria which the judge follows in crafting an alimony award is different for each type of alimony. With respect to pendente-lite alimony it is clear that there are only two criteria for the judge to consider: 1) need and 2) ability to pay. That’s it!!
As in such simple edicts, the result can be draconian. It does not consider the many equitable factors as may apply in other types of alimony. Equitable factors are those considerations the public usually assumes are factors in an alimony award. These factors do not play a role in pendente-lite alimony.
In determining the other forms of alimony those more equitable considerations can be:
*The duration of the marriage in question 11-106(b)(4)
*Contributions to the marriage 11-106(b)(5)
*The circumstances that contributed to the estrangement of the parties 11-106(b)(6)
For example, lets focus on something that is both equitable, yet objective. The length of the marriage. Believe it or not, I have several times witnessed divorces where the pendente- lite alimony lasted longer than the parties marriage. Unusual? Yes, but when the only criteria are need versus ability to pay, it can yield such seemingly unjust results.
More than any other form of alimony, pendente-lite alimony is a numbers game.
§ 11-106. Award — Determination of amount and duration
(a) Court to make determination. —
(1) The court shall determine the amount of and the period for an award of alimony.
(2) The court may award alimony for a period beginning from the filing of the pleading that requests alimony.
(3) At the conclusion of the period of the award of alimony, no further alimony shall accrue.
(b) Required considerations. — In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health – General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
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