Is it true that in order for the dependant spouse to bring up a complaint of marital misconduct against the supporting spouse during a PSS trial that the Supporting has to first bring that complaint against the dependant spouse?
What does this mean then?
There are very few defenses to a request for PSS if the dependent spouse can show all of the elements listed above. Unlike a claim for alimony, PSS is not barred simply because of illicit sexual behavior by the dependent spouse. Given the temporary nature of PSS, the court is directed to focus on the financial circumstances of the parties and make rulings to allow for stability in the standard of the living of both parties as the other claims arising from the parties’ separation are resolved. However, our statute does provide for the court to consider marital misconduct in making its ruling. Oddly, the dependent spouse may only present evidence as to marital misconduct if the supporting spouse presents evidence of marital misconduct on behalf of the dependent spouse. As a result, the supporting spouse can control the extent of the evidence presented to the court at a hearing on PSS. Strategically, a suporting party rarely provides evidence of marital misconduct unless he is confident the evidence is very damaging to the dependent spouse and that there is very little evidence of misconduct on the part of the supporting spouse. Given the court’s eye towards the financial needs of the parties at the PSS stage and the temporary nature of any award for PSS, it may be unwise to show one’s evidence prior to the alimony stage.
To clarify my earlier response. The dependant spouse need not present evidence of misconduct when at the hearing for PS, unless defending against allegations of the same made on the part of the supporting spouse. The reason is that the court is interested only in making a determination of whether support for immediate subsistence is necessary. When the dependant spouse makes a claim for PSS, and presumably alimony, the allegation of martial misconduct should be included in the complaint or motion regardless of whether the supporting spouse has alleged fault.