Showing Entitlement in Order to Receive Alimony Pendente Lite
I am excited to say that I won a recent alimony pendente lite (“APL”) case on the basis of entitlement. This is a pretty rare occurrence as evidenced by the paltry amount of case law on the subject.
A little background may help. First, APL is the support a spouse receives while a divorce case is pending. The spouse who receives is, probably obviously, the spouse with the lower income and fewer assets. The purpose of APL is to help the spouse with less income/assets to be able to adequately provide for him/herself and litigate the divorce simultaneously. Most of the time, entitlement is merely assumed either because the numbers are clear or many practitioners presume there is no defense against it if s/he represents the spouse earning more money.
Most APL petitions are filed using a template that is rarely, if ever, varied from case to case. The averments in the template allege that the petitioner (the person seeking APL) cannot sustain her/himself during the litigation and cannot provide for his/her reasonable own needs without the APL. I have litigated dozens of APL cases on either side and never seen anyone challenge a petitioner on the basis of the averments in the APL petition and about a year ago, I decided I would try and see what happens.
The response I have received from everyone at the APL hearings so far was surprise. Opposing attorneys react extremely negatively when I bring out the APL petition and cross examine on the averments made in it. I suspect it is because this likely never happened before to them. Indeed, one attorney admitted as much exclaiming on the record something like “everyone knows the petition is just a form!” Conversely, the response I have received from the support masters has ranged from confusion (but allowing the examination) to something like a bemused spectator.
The fact is, an APL petition is a formal document filed with the Court which contains verified averments of facts about the petitioner made by the petitioner. Merely because it is a form or a template does not, somehow, lessen the significance of the fact that it contains factual averments which are verified by the petitioner to the court as true. My suggestion to those who think “it is merely a form” would be to rethink using it if your client does not conform to its averments. Merely having lesser income does not automatically mean that one is entitled to the APL.
In the recent case I mentioned above, the Wife made a very good living earning a six-figure salary (though less than her spouse), was able to pay all of her expenses out of her income (without the APL), as well as make contributions to her retirement funds each pay period. Needless to say, she was more than able to meet her reasonable needs and sustain herself if she could do all of the things listed above with her own income (absent the APL), namely satisfy all of her monthly bills and save for retirement. APL, in this case, would not equalize the two parties over the course of the divorce litigation, but only serve to enrich the petitioner.
Luckily for me and my client, the judge agreed and ruled that the wife was not entitled to the APL. I think the lesson here is that one cannot assume some things, namely, one is not entitled to APL merely on the basis of making less money than one’s spouse and that the averments in an APL petition cannot be examined merely because it is a “form” or “template.” The allegations made in the petition are important and are formal representations to a court and should be taken seriously as such.
Finally, every case is unique and do not read the above and presume it applies to your case. This article is not legal advice for your particular case. Each case is handled differently based on its unique set of issues, facts, and circumstances. The take away from the above, is, I think, first, be sure that what you aver in an APL petition reflects the truth and reality. Second, be sure to consider arguing entitlement if defending an APL petition if it is clear that the petitioner has sufficient income/assets to sustain him/herself. APL is not designed to enrich one party and/or impoverish the other. Instead, it is designed to try and make both parties able to both sustain themselves and pursue the divorce litigation.