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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
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Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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In Fairfax County, VA is filing a Pendente Lite motion the

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In Fairfax County, VA is filing a Pendente Lite motion the proper process to stop the defendant from removing property from the marital residence and prohibiting her entrance to the residence when I'm at work since she has moved out? If so, please suggest the wording/argument that I would state to the court for the request. Additionally, can this same motion request the court to have her pay her half of back federal income taxes as we filed jointly and the IRS has already levied my account for the 2011 taxes and is soon to levy the 2012 taxes which she refuses to pay? I believe it is a one week notice period, but can I still request July 12th even if the opposing counsel says he is unavailable given that each day property is being taken?
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

A motion for pendite lite is not used to stop the spouse from taking property or entering the home. You need a motion or praecipe for temporary possession of the home and contents, which is where you ask the court to grant you temporary possession of the marital home and to order that no property can be removed from the marital home until such time as the marital property division has been decided by settlement of the parties or the court.

As far as payment of bills a Motion for Pendite Lite can now be used under VA Code 20-103 to ask the court for an order to have your spouse pay any marital debts or their share of marital debts that are due during the time the divorce is pending in the court, which would include back income taxes as well.

You can file the Motion for Temporary Possession and Temporary Injunction to prevent removal on an emergency ex parte basis to prevent her entry and removal of contents of marital property which is causing you damage. This means you could file it now and explain you tried to contact opposing counsel and were not able to do so but damage is occurring in the removal of marital property and ask the court to issue an order giving you temporary possession plus an injunction against removal of any more property from the residence without mutual written agreement or court order.





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Customer: replied 1 year ago.

Thank you Paul.


 


Can you explain the Motion for Temporary Possession? The process I'm familiar with I file a motion for the Friday docket but that takes at least one week and given that this Friday is a court holiday the next docket is July 12th. This past week she raided our beach house earlier in the week and our primary residence on Friday morning. Is there a process which I could file an attain the order before the July 4th weekend which she has stated she will be getting more property?

Expert:  Law Educator, Esq. replied 1 year ago.
The motion for temporary possession and for the injunction, would be simply a motion you file with the court on an ex parte basis in this case, meaning without notice and two party hearing because of the emergent nature of property being removed and the other attorney not being available. An ex parte hearing can generally be heard immediately when you bring it in to file it with the court and you go direct to the judge with the motion and they review and you explain that she is currently taking property and damaging the marital estate and you need to get it stopped and have her stopped from entering the house.

The court will issue the ex parte order which you would then immediately have served on her and her attorney and you keep an original in case she violates it you can show the police and they will arrest her for contempt and possibly even for burglary.
Customer: replied 1 year ago.

Can you clarify how I would file the motion? I typically would complete the yellow paercipe and file in Room 320. But the form typically has provisions for one or two weeks notice from the Friday which you file, meaning filing this week it would be heard on July 12th. How can I file the motion and have it heard today?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You would tell the clerk you are filing the praecipe ex parte on an emergency basis and she would send you directly to the court to see the judge regarding the motion and you would present a copy to the judge. In your motion you call it Ex Parte Motion for Temporary Possession and Injunction, and in the body you describe why this needs to be heard on an expedited basis. You still go to the clerk and they are supposed to route you to the judge to hear the motion.
Customer: replied 1 year ago.

Paul,


 


The docketing clerk informed me that Fairfax County does not support Ex Parte motions unless its abuse. She indicated that the process is to notice opposing counsel to attend Calendar Control at 8:30 to request a hearing. But the hearing may take till July 12th which was my initial concern. Are you certain that there is a process to get heard by a judge in a more expedited fashion? If so, please clarify since the docketing clerk refuses to accept the Ex Parte Motion I brought to her.


 


George

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

George, Fairfax does take ex parte motions and you have to prove emergency reason to the judge that the motion should be heard ex parte. You need to ask for an emergency ex parte hearing with the judge based on the taking of the property and immediate damage being done to the marital estate, now it is up to the judge to decide in their discretion to grant it on the emergency basis or not, Also, even in an ex parte motion, notice must be sent out to the other party, but you are saying that because of the urgent nature of the matter there is not time to bring the other party in for a hearing, hence, the ex parte.

If the court judge decides this is not a sufficient emergency in his discretion to hear the matter ex parte, then that is his call. However, the clerk should have sent you to the judge if you were asking for this to be heard on an emergency basis to explain the emergency to the judge.
Customer: replied 1 year ago.

But if the clerk will not accept the motion nor send me to a judge, how can I get this heard?

Customer: replied 1 year ago.

The process the clerk claims is to notice the other party for calendar control, attend calendar control requesting an immediate pendente lite hearing for temporary award of the residences and to stop distribution of marital property. The pendente lite process appears to be differ from the process you describe in that the hearing is scheduled for the opposing counsel to attend.


 


I did state it was an emergency. She didn't care unless it was abuse, not property. Thoughts?

Expert:  Law Educator, Esq. replied 1 year ago.
You have to file it for this Friday's docket and state it is an emergency not requiring 2 weeks notice, which is all Fairfax will let you do and if they cannot fit it in on that Friday, you can end up only asking for money damages. You cannot get beyond the clerk and the court's local rule though and if Fairfax family judges have this as their local rule, then you have to file it and ask for it to be at least set this Friday (but the VA code does allow for ex parte motions, if the judges decide to hear them).
Customer: replied 1 year ago.

If I understand your reply, I believe you are describing the process I described in my first question. This Friday is a court holiday so July 12th is the next Friday motion docket day. I was searching for any other process that would permit the hearing on an emergency basis, i.e. the next couple of days. The Pendente Lite process requires standard notice and Friday only hearings thus no relief till July 12th. Is there any other option?

Expert:  Law Educator, Esq. replied 1 year ago.
I am afraid that if the judges in Fairfax will not consider taking or loss of property as an emergency under their local court rules, that is their discretion to do.

The pendite lite process is not an emergency and as such is filed like any other motion before the court. The only thing that could potentially be considered an emergency is the taking of property from the residence that she has no right to take and some judges consider taking property to constitute an emergency and others do not and if Fairfax refuses to do so then you can only get the Friday hearing.
Law Educator, Esq., Lawyer
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Law Educator, Esq.
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