Since the start of this bewildering pandemic, much of “life as we know it” has changed. Our daily routines are very different from what they were just weeks ago, and for many, plans for your personal life and family, including divorce, have been upended. Grappling with the massive upheaval of home quarantine orders, school closures, the new “work from home” paradigm or the unemployment line, has compounded the existing challenges of an ongoing divorce. To further complicate matters, the already burdened court system has stemmed access to emergency proceedings only, and will slowly start to reopen in the coming months – certainly not without a large backlog. The fallout of the Coronavirus on family law matters is impossible to estimate. To address some of the “Frequently Asked Questions” I have been receiving about the impact of COVID-19 on divorce, I have assembled relevant information to help you in these ever changing times.
Impact of COVID-19 on Divorce
I want to file for a divorce. Do I need an attorney? What about during Covid-19?
Awareness of the Coronavirus pandemic came on abruptly for many of us. The rapid escalation of public health advisories also impacted our court system in California, including in mid-March the indefinite closing of many courthouses to slow the spread of the virus. Traditionally, the vast majority of divorce or “dissolution” filings statewide were done by self-represented litigants for many reasons, including cost and the perception that attorneys will make the case more contentious. To service these divorce filings, self-help centers on site at the courthouses have been a vital part of the access to justice our California court system has provided. During a time when court staff are not available to the public and these self-help centers are temporarily closed, it may be difficult if not impossible to navigate the court system as a “pro per” litigant. Information is not necessarily available online, given how quickly things are changing with the social distancing measures put in place by state and local governments and the unfolding of the proliferation of the virus. If delaying a divorce filing is not possible, the better bet is to retain counsel on a full or limited scope basis. Many family law attorneys offer this service, as well as offer legal advice on a consulting basis.
What do I need to think about before filing for a divorce? Is there a benefit in waiting to file for divorce until things are “back to normal?”
You are well-advised to consult with legal counsel before undertaking a divorce filing, as the filing itself can have many ramifications you should be aware of before the initial Petition is filed and served. Another accessible way to prepare yourself is to review and consider the Automatic Temporary Restraining Orders which are printed on the Family Law Summons (FL-110). These “Standard Family Law Restraining Orders” apply to everyone in California seeking a divorce from a spouse. It is good practice to fully review the paperwork necessary to file for dissolution to make sure you understand what is required – far in advance of actually filing – as you will be bound by certain restrictions which go into effect immediately. Although the words “restraining orders” appear at first blush to involve domestic violence, these do not. They are for the most part financial restraining orders. They will stay in place for the pendency of the divorce case.
The appropriate timing of when to file a divorce Petition is dictated by the individual circumstances of your case. These individual circumstances may be heighted by the situation we are all laboring under – that of the Covid-19 pandemic and the fact that commerce has slowed to a screeching halt as social distancing measures have been implemented. Many people are considering a decline in stock portfolios or the diminished value of real property as one factor to timing. However, in many instances, community assets are divided closest to the time of trial or resolution of the case – meaning, a future date when the valuation of these assets may have greatly changed from today’s value.
Can I make progress on my divorce during the Shelter At Home period? If so how?
The short answer is – yes, in many instances, you can make excellent progress in an on-going matter. In fact, it may be a great time to tackle much of the “administrative” work necessary to complete required financial disclosure forms, as many of the documents you will need are in existing electronic files or available online at the “touch of button” — such as mortgage statements, bank and brokerage statements, and paystubs. Or it may be the time to go through old files in the garage or attic to locate and organize historical records you need to support the claims you are making in the divorce. What better time to document and catalog community property furniture, furnishings, art, and the like than when you are stuck at home day in and day out? At some point, the family photo albums and video collection will need to be duplicated and shared with your co-parent. Why not start now? So many of the tasks that need to be accomplished during the divorce can be while socially distancing.
But what about your family law attorney? Can he or she continue to advance your case while law offices are shuttered to slow the spread? Despite the upheaval and displacement created by the Coronavirus pandemic and the ensuing orders to “Shelter at Home,” many of the family law attorneys I know are continuing to work (at home) during this crisis and to be available for clients via telephone, email and web-based meetings such as FaceTime or Zoom. Your lawyer may be more available to you than ever! Although the transition to 100% home-based work has not been seamless, it has been swift for the legal community. The efficiency of making this transition has been bolstered by the already pervasive use of cloud storage and other supporting technology. Everyone is doing their best to adjust to a new reality, and this includes family law mediators and co-parenting therapists, who are playing a vital role in resolving family law conflicts which have arisen during this uncertain period.
Finances during COVID-19
What if I lost my job and cannot afford to pay support due to Covid-19? Can I stop paying?
A court order is fully enforceable by the court until it is modified by another court order which supersedes the prior court order. The court will not countenance simply ignoring an operative court order (“self-help” is a “no no”) which is why remedies such as contempt are available to the court. Furthermore, unpaid support accrues interest until paid in full.
However, the modification of a child or spousal support order can occur during a divorce or post-divorce (“post Judgment”) based on a “change of circumstance” – meaning the financial circumstances of the parties have changed in a material way since the original order was made. I cannot think of a bigger change in circumstances than a job loss associated with a global virus pandemic which is Covid-19 and the “safer at home” paradigm. So many industries which cannot be conducted by “working from home” have screeched to a halt. Millions upon millions of Americans have lost their jobs as can be seen from the escalation in unparalleled unemployment claims each week. Declining income, in cases were layoffs were delayed in exchange for painful “pay cuts” also rises to the level of a change in circumstance allowing the court to revise the support current order.
The key here, however, is that you must apply to the court for the modification. The application to the court gives the court authority (“jurisdiction”) to modify the support order from the date of filing. Consult with a family law attorney available to help you with the filing if at all possible because it has technical aspects you will not want to overlook. Moreover, local court rules are changing on a weekly basis to provide relief to people by adapting the court process to the courthouse closures associated with Covid-19 which involve relaxing some of the technical requirements to filing and service during this challenging period. Understand that you are in the “same boat” as many other people struggling with joblessness at this time, and I would expect the courts to take into account this unique set of circumstances.
Will I have to pay back any support payments?
If you cannot afford to pay support (or pay it at the same rate) due to Covid-19 job loss, lack of savings or declining income, if you pursue the requisite modification application to the court, the court will have the ability to reach back in time (“retroactively”) and relieve you of support obligations — if such relief is justified based upon your circumstances. The retroactivity issue is key because many courthouses are closed until May or June (likely to be extended), and depending on your circumstances, your application may not get a court date until months after the re-opening (depending on the necessity of your application). Everyone will be fighting to have their matter heard in an already overly congested court system.
Another consideration is that your circumstances may change again before the court hearing and perhaps you have found alternate work by that date. It is your income which the court will review, not necessarily that you have changed jobs into an industry which is operational during the pandemic. The degree to which your overall income has declined from the original order is the key factor. It will be the job of the judge to make these determinations, average certain periods of unemployment (balanced against employment or other government benefits received), were those unemployed periods justified, etc. and set the “arrearages” or amount of past due support owed. From that point, interest will be calculated and a payment plan ordered.
Custody during COVID-19
Do I need to comply with custody orders for exchanges with my child during Covid-19?
The challenge of exchanging children between households for custodial visits during the Coronavirus pandemic when hygiene and health safety protocols may differ between parents and risk of contracting this virus may also differ, may be the MOST frequently asked question addressed by family lawyers during this unprecedented time. The short answer is – yes, you need to comply with court orders because they are court orders. If you believe there is an overriding reason to change or discontinue the custodial exchange and your co-parent does not agree, consult with legal counsel with expertise in family law before resorting to “self-help.” Court orders remain court orders until modified by a superseding court order. Custodial court orders are made (and modified) by a judge based upon a determination of the best interest of the child. Although the courthouses remain “open” to hear matters which involve true “life and death” emergencies, the fact that we are all facing an uncertain and anxiety-producing time in attempting to protect ourselves and our families from contracting the virus is not – by itself – an “emergency” requiring a change in custody. You are strongly advised to review your particular circumstances with an attorney and obtain legal advice about making an application to the court and to determine if there are any mitigation strategies to employ during a time when access to the courts is limited (e.g. Facetime, co-parent mediation, agreements on “make-up” time, etc.). You may consider working virtually with your co-parent and a co-parent therapist/coordinator, as good communication can prove a “lifesaver” in a time like this. You are also advised to act reasonably because it is highly probable that the parents involved in high-conflict co-parenting will be judged down the line for the unreasonable positions asserted with respect to custodial access. As always, put the well-being and safety (emotionally and physically) of your children first.
What changes can I suggest to my co-parent to keep our kids safe with custody exchanges?
Clearly, all of the hygienic measures we are all asked to observe (e.g. routine hand washing, mask wearing outside the home, spraying down of surfaces of food and supplies and social distancing from strangers) become paramount when the children are transitioning between households. You may consider a “closed circle” approach where household members are not socially distanced from each other, but pledge to socially distance from all other people, as well as maintain the hygienic measures noted. If custodial exchanges were conducted at schools (now closed) or in other very public places (i.e. McDonald’s, Starbucks – also now closed) or playgrounds, police stations, and the like, it is critical to select another location that will be safe and hold a positive association for your children (outdoors spaces may be best as sunlight is a natural germicide). The free and easy transition back and forth of cleaning and household supplies, hand sanitizer, etc. will benefit your children. To the extent you elect to make temporary changes in the custodial schedule to assist your children with online “distance learning” (e.g. a “home base” household for Monday – Friday) or “week on, week off” approach, these changes could present benefits for the household with less transitions for the children. Make sure to put those changes in writing (such as email or text) and confirm the changes are temporary on a week by week or month by month basis with an end date. If make-up time for one parent is due as a result of a custodial shift, be reasonable with allowing that parent to select his or her make-up time (“first dibbs”). Supplement custodial contact where possible with online Facetime and Zoom “visits”.
