Divorce During Coronavirus: Advice from Lawyers About Child Custody, Family Courts, and Mediation

The COVID-19 pandemic is taking it's toll on couples. Divorce lawyers are seeing the signs — and have some advice.

by Aaron Stern
Originally Published: 
A husband and a wife sitting apart on a couch

Scott Trout has been practicing family law for over 25 years, and like the rest of us, he’s never seen anything quite like the COVID-19 pandemic. And in just the first month since American life began to be reshaped by the novel coronavirus, his law firm has received a steady stream of calls requesting consultations on custody and alimony payments, as well as many new requests to initiate divorce proceedings – that is to say, there are people across the country who in less than a month at home with their spouse have already reached the breaking point in their marriage.

“It really picked up on or around March 8th, or so,” says Trout, the executive/managing partner at Cordell & Cordell, a domestic litigation firm with branches in 38 states. “What we see so far, is you have a problem in the marriage to begin with… and it’s typically communication or some other issue that really started breaking down the marriage before COVID-19 came about.”

Now, fuel is being poured on the fire by close-quarter contact in a high-stress situation between spouses who already had significant relationship problems, and these couples are quickly reaching the breaking point.

Which doesn’t mean they can do anything about it. Leslie Barbara, the chair of the divorce & family law group at New York-based law firm Davidoff, Hutcher & Citron, has also received some calls from potential new clients looking to initiate divorce proceedings.

“I’ve had a few calls, and I’ve actually recommended that they take a deep yoga class and try to work things out,” she says.

For one, Barbara always advises her clients to take a deep breath and strongly consider if divorce is the right thing for them before moving forward. But for another, even if you’re certain that divorce is the right way to go – that the close confines of the COVID-19 quarantine have, as Trout says, merely broken an already badly damaged foundation – there’s not much you can do about it. Many courts across the country are shut down, and in places like New York, they’re only hearing emergency cases for domestic abuse. Some courts are moving procedural issues online, but to what extent varies by state, locality, and even by the judge, based on their comfort handling cases outside the physical confines of the court, Trout says.

Laura Wasser, a Los Angeles-based divorce attorney and the founder of It’s Over Easy, an online divorce platform, says reports of a spike in divorce initiations prompted by the novel coronavirus are overblown. She says the reported uptick in China’s divorce rate as quarantines there have abated are likely due to the cases that naturally would have been filed but weren’t while the legal system was offline. Plus, Wasser says that divorce rates actually declined during the Great Depression and the 2008 recession.

“People generally try to hunker down and stay together during something like this, because of the economics of it,” she says.

But, Wasser says, the challenges to ongoing divorce proceedings and custody sharing agreements are very real. American family courts are typically backlogged under normal circumstances, and now that they are largely shut down to varying degrees across the country, ongoing divorces and previous settlements are being thrown into chaos, and without any guidance from judges.

The real challenge to the courts will come, Wasser says, when they reopen and have to handle not just the backlog of filings that preceded the pandemic that stacked up over the months. These will include filings related to spousal maintenance for ongoing and settled cases, with so many incomes severely impacted.

“Decimation doesn’t even describe it,” Barbara says of some of the lost wages and future earnings she’s seen from her clients already.

In addition to requests to downgrade spousal maintenance, there will also be new complaints filed regarding disputes over custody that are breaking out across the country during the pandemic lockdown. Barbara has seen at least one such dispute firsthand in the case of a couple in the middle of a divorce; the wife moved to Virginia from New York City with the couple’s daughter prior to the outbreak, and the court previously ordered that she bring the child to see the father in Manhattan on scheduled visits. But now the mother doesn’t want to.

“She’s worried about being held in contempt of a court order, because it is a little tricky,” Barbara says. “She’s worried that she’s dropping the child off at the epicenter of the virus.”

The courts will have to judge if such cases are examples of one parent using the pandemic as an excuse to control custody, or if those concerns are truly legitimate. In this case, Barbara advised, despite the standing court order, that it’s in the best interest of the child to remain in Virginia. She hopes that the courts will agree with her advice – whenever they open back up to consider such decisions.

With courts shuttered, Wasser says that more cases are routing through private settlements and mediations. That’s one positive development, at least, and she hopes, too, that more court proceedings will be handled virtually in the future, as judges forced to adapt to the world of Zoom meetings realize that such solutions might be useful permanent tools.

But Wasser is also deeply concerned about an uptick in domestic violence driven by pressure-cooker home environments.

“As you can imagine, if there were a propensity for domestic violence to occur in a relationship already, it’s certainly exacerbated here,” she says. “It’s scary, it’s crazy.” But anyone in such situations should know that even family courts closed for usual business are still handling such emergency cases, she says.

For couples driven to the point of separation by this anxiety, Trout tells all of his potential clients, including these new COVID-initiated cases, to be very sure before moving forward.

“If not, then we want you to go home, go work on your marriage,” he says. “A bad marriage is better than a terrible divorce. The process of going through it is just awful. There are no winners, just degrees of losing in divorce.”

Similarly, Wasser says she coaches her potential clients to work as hard as they can on their marriage before pursuing a divorce. She emphasizes with her clients what she calls the three C’s: cooperation, communication and consideration – tools that are beneficial in all relationships.

Wasser strongly advises that couples who are suddenly thrust together every hour of every day with no break – and who find that intolerable to the point of considering divorce – maintain some perspective. If you’re experiencing an unusually high level of stress or animosity with your spouse, she says, that’s because this is an unprecedented event in modern America. Things will return to at least some state of tolerable-to-enjoyable normalcy, eventually, and your marriage likely will, too.

“I really do think that families, particularly, will weather this storm in a way that, if they can get through the annoyances of their significant others, they will probably come through the other end better off if they establish some boundaries [and] figure out some better tools for communication with each other,” she says.

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