DC Code § 16–911, titled Pendente lite relief, allows for filing of a petition for support during the pendency of:

  1. A legal separation,
  2. Divorce; or
  3. The termination of a domestic partnership

In such cases, the court may require one party after holding a hearing to make payment of:

  • A pendente lite alimony, or
  • Child support
  • Health insurance coverage or
  • Suit money, including counsel fees.

The Court generally considers the same factors in awarding alimony to dispense Pendente lite alimony and support, that is:

  1. Ability of the party seeking alimony to be wholly or partly self-supporting;
  2. Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment;
  3. Standard of living that the parties established during their marriage or domestic partnership, but giving consideration to the fact that there will be 2 households to maintain;
  4.  Duration of the marriage or domestic partnership;
  5. Circumstances which contributed to the estrangement of the parties;
  6. Age of each party;
  7. Physical and mental condition of each party;
  8. Ability of the party from whom alimony is sought to meet his or her needs while meeting the needs of the other party; and
  9. Financial needs and financial resources of each party, including:

(A) Income;

  • income from assets, both those that are the property of the marriage or domestic partnership and those that are not;
  • potential income which may be imputed to non-income producing assets of a party;
  • any previous award of child support in this case;
  • financial obligations of each party;
  • the right of a party to receive retirement benefits; and
  • the taxability or non-taxability of income.

As was established and cemented in DC Court of Appeals case Burtoff v. Burtoff, award of alimony can however be contractually either waived or limited through a valid prenuptial agreement.

In such cases, the issue becomes whether the Pendente lite alimony, would still be considered by the court when either there is alimony waiver or specific limit or schedule imposed on disbursement of alimony.  The case seems to suggest that any award of Pendente lite alimony is capped by the total award of alimony contractually agreed upon by the parties.

Clearly, if there is a contractually valid waiver of the alimony, then any award of Pendente lite alimony should arguably be also foreclosed.

However, any and all Pendente lite child support or health benefits cannot and will not be waived contractually as both against public police and the specific statutory support obligations.

Refer to our Washington DC Divorce page for more detailed information on this subject.

Categories: Family Law.