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A Murky Place

{6 minutes to read}  Pendente Lite (or PL) refers to the interim time between the commencement of an action for divorce (filing a Complaint for Divorce), and the time the parties receive a Judgment of Divorce, signifying the completion of the legal matter. This interim period of time is among the murkiest for parties — they are in limbo — aiming to put an agreement together, yet operating without one. And this is occurring at a time when parties are most in need of guidance and rules governing their conduct, parenting, financial responsibilities, and so forth.

Simultaneously, emotions, fueled by uncertainty, are high. Spouses are often living together and having to negotiate living space, messaging to children, household responsibilities — essentially it’s a setup for tension and, yes, failure.

There can be a need to distance, physically and emotionally, that is not yet feasible; the desire to sever financial ties is also not yet legally allowed.

Whether clients are in mediation or litigation, what principle is supposed to govern this period? The status quo is the governing default prior to anything better spelling out how to maintain a semblance of the marital lifestyle. Not only does the status quo protect the family from further disruption, it also maintains the family’s relationships with their creditors, mortgagers, banks, and other third party institutions, thus avoiding a negative financial domino effect.

This is where I like to borrow from the indispensable profession of medicine, and the hippocratic oath which advises, “do no harm.” The relative equivalent in matrimonial law is the directive, (albeit to clients, not professionals), to “maintain the status quo.”

In practice, this means the following: if you have a joint bank account from which everything gets paid, the mortgage, the family cell phone plan, the cable bill, etc. do not close that bank account, and especially, do not close it to punish your spouse or cause more disruption. Your job is not to cause more misery. As history has proven, misery will take care of itself ad nauseum.

In the PL period. What you want to do is exactly what you’ve been doing before you entered into the divorce process. Do not change a thing:

  • Do not change any of the finances or titles to any accounts.

  • Do not change your or your spouse’s insurance coverages – this includes health, life, car.

  • Do not change your life insurance beneficiary or beneficiaries on any other property or assets.

  • Do not remove your soon to be ex’s name from anything.

  • Do not do something weird with your retirement savings or change how much is withheld from each pay period for your 401(k).

  • Do not withdraw funds from an account and move them to an individual account in your name. (This will likely be construed as a dissipation of assets. Not good.)

In sum, you may not remove a spouse from any insurance policy, cut off access to marital funds, or otherwise alter the financial “status quo.”)

Keep doing what you were doing during the marriage, regardless of how dysfunctional it was. The hope is that this interim PL period will only last a few, although unfortunately intolerable, months.

Contrarily, when one party acts unilaterally during this period, it can lead to a presumption of bad faith, ill will, and secretiveness that is not only not nice, but poorly regarded by the court. The court views such shenanigans as wrongdoing which you will have to defend, and likely correct, potentially with additional consequences. Plus you will have cast yourself in a negative light from which you will struggle to step out of for the remainder of the action.

When they say “keep on with your bad self,” that is literally what you should be doing for the next few months.

Pendente Lite in Mediation v Litigation

In mediation, clients have greater flexibility during this period in two particular ways.

First, in mediation we will hold off filing a Complaint until an agreement has been reached, and parties together define the date they will use to separate assets, debt accumulation, etc. (the “separation date”).  This provides spouses greater control of their timeline and process, rather than having these dictated by the court.

Second, spouses can determine and agree to changes they want to implement immediately, again, without having to await the court’s timeline or granting of formal Order(s). Interim agreements can range from a temporary parenting plan, guidelines for sharing one residence, and the establishment of some financial autonomy – including distributing/dividing certain assets before a final agreement is reached. These freedoms can greatly alleviate the stressors of the interim period, and even help parties arrive at and begin implementing their final agreement with immediacy.

The mediator can memorialize interim agreements in writing whenever necessary and when this provides parties with reassurance.

Through mediation, the pendency period, rather than being relegated to a time of waiting and white-knuckling, can be a productive interval of forward movement and resolution.