Procedures for Pendente Lite Motion Hearings in the Fairfax County Circuit Court

Posted by Andrei J. Kublan

Since contested divorce cases can take approximately a year (and in certain cases even longer) to be fully adjudicated in court, each party to the litigation has a right to request certain temporary relief from the court while their case is pending in court.  As a party to a divorce litigation, you can request, among other things, the court to order your spouse to provide the following pendente lite (i.e., temporary) relief: (a) spousal support, (b) provision of health insurance coverage, (c) payment of certain marital debts, (d)  advancement of attorney’s fees to enable you to continue with litigation, (e) determination of child custody*, (f) child support, and (g) exclusive possession of the marital home.  See Va. Code Section 20-103.

In the Fairfax County Circuit Court, in order to obtain this temporary relief, you would need to file a motion (essentially a request) with the Court and schedule it to be head on a Friday at 11:30 a.m. during the Domestic Relations Docket.  Provided you properly accomplished the above two tasks, you will now need to prepare for the pendente lite hearing, which normally cannot exceed 30 minutes and must be in accordance with the following strict procedural requirements:

• Prior to the hearing, but no later than 9:45 a.m. on the morning of the hearing, you and your spouse (normally through your attorneys) must exchange the documents supporting your respective pendente lite positions, such as guideline support worksheets, appropriate documentation showing the amount of present regular income for each party, the cost of work-related child care, and the cost of medical insurance monthly premium for the children.
• If you are represented by counsel, prior to the beginning of the hearing, the attorneys must provide a completed certification that they have exchanged all documentation upon which they intend to rely to establish the current incomes of the parties, and, if child support is requested, childcare costs, health insurance cost and what they content is the presumptive amount of child support pursuant to Va. Code Section 20-108.2.
• At the commencement of the hearing, counsel should present the following to the presiding judge:

1.  One fully completed certification endorsed by each counsel of record.
2. Each side’s proposed guideline support worksheet based on the party’s position.
3. All documents supporting each party’s position, including the documents mentioned above (each of the documents will be deemed received in evidence subject to cross-examination, without either party having to formally move for its admission, subject to cross-examination and striking, if appropriate).

• After each party is sworn, your attorney, as a moving party, will have up to three (3) minutes to present (or proffer) to the court the relevant issues and all facts the attorney would seek to elicit on direct examination from you.
• The attorney for your spouse will then have seven (7) minutes to cross-examine you by primarily asking leading questions requiring you to respond either “yes” or “no.”
• After the cross-examination has been completed, your attorney will have two (2) minutes for redirect questions, which are primarily designed to clarify or remedy the statements you made during your cross-examination.
• After this, your spouse will take the stand and the same procedure will be repeated with your attorney now having a chance to cross-examine your spouse for seven (7) minutes.
• At the end of your spouse’s testimony, each of the attorneys will have two (2) minutes to make a closing argument in support of their clients’ respective positions.
• The hearing will conclude with the presiding judge making appropriate findings and ordering the pendente lite relief consistent with these findings.

* Unfortunately, the Fairfax County Circuit Court, despite the applicable statute, does not allow the parties to request temporary child custody, instead preferring to schedule a full-blown separate custody trial as soon as possible.  This is done because the Court believes that a pendente lite custody hearing will be duplicative to the final custody trial and is contrary to the best interests of minor children involved.

Please contact us to schedule a consultation with one of our attorney to obtain more information about this topic and to discuss your case.