When state and local governments announced shelter-in-place orders to slow the spread of the coronavirus, predictions that the lockdowns would force a reckoning in bad marriages and lead to a rise in the divorce rate abounded.
The forecast has not come to pass, but lawyers are seeing plenty of obstacles for couples who no longer want to be married.
For starters, many state courts are effectively closed or operating only on an emergency basis, adding disruption and delay to an already tense, emotional process.
This applies to people considering a divorce and those in the middle of the process. It is also affecting people who have long been divorced and are seeking to reduce support payments in light of the economic shutdown.
“There are 36 courts in Connecticut, and only four are open,” Alan S. Rubenstein, a lawyer with Halloran Sage in Westport, Conn. “The family courts are only hearing motions for relief from abuse, or emergency custody orders. Other than that, the family courts are not hearing anything.”
The setbacks are happening throughout the hardest-hit states. Here’s a look at three stages of the divorce process that have been altered by the pandemic.
Thinking of Divorce
Filing the documents for a divorce is often not possible because of court delays. This includes the crucial document that values and separates a couple’s joint assets on a certain date, a filing that sets what’s called the commencement date of the divorce.
In lieu of a court filing, the couple can draft an agreement establishing a date, “but if you have a spouse who is not interested in doing that, then you’re stuck,” said Emily S. Pollock, partner at Kasowitz Benson Torres in New York.
This could be a moment for couples to turn to alternatives meant to avoid the court system and keep the cost of divorce down.
The first is mediation, in which the couple may have lawyers advising them but generally go by themselves to hash out their split with a mediator. The second is a collaborative divorce, in which both sides agree not to go to court and to use lawyers, a financial adviser and a mental health professional who are objective.
Even in normal times, these strategies can fail, forcing the couple to start over in court. But the prospect of a huge backlog when courts reopen is acting as an incentive to stay the course, said Steph L. Wagner, director of women and wealth at Northern Trust.
A sticking point is often support payments. Everyone is used to child support, but “spousal support, that’s a much more sensitive topic,” said Andrea Vacca, founder of Vacca Family Law Group, a collaborative divorce and mediation practice in New York. “It’s harder to settle this out of court sometimes, but it’s better for the clients.”
In a Divorce
The crux of a divorce is valuing and dividing assets. What those assets will be worth after the economic rout is difficult to say. Some lawyers think people need to accept a lower value, particularly when a business is involved.
In that case, the spouse who needs the money “is probably out of luck,” said Kelly A. Frawley, partner at Kasowitz Benson Torres. “There isn’t an argument that they should be able to postpone a valuation by a year or two to see if it goes up.”
She added one exception: The spouse who owns the business may want the other person to share in further depreciation. But it’s a gamble, because the value could rise.
Another part of the negotiations can center on life insurance to guarantee that support payments continue if the paying spouse dies. But the coronavirus outbreak could make getting that insurance more difficult for older people, said Marilyn B. Chinitz, partner at Blank Rome in New York.
“Companies are going to take a second look at how they cover individuals,” she said. Premiums are much higher for people over 60, she added, and some insurance companies are not covering those 70 or older.
The alternative is tying up assets, like a house or an investment portfolio, to secure support payments. But many people balk at that arrangement, so Ms. Chinitz tells clients to get insurance now.
Even though no one is being haled into court, parents still need to behave civilly.
Family court will not look favorably on anyone who uses the pandemic as leverage in a divorce, Jeffrey S. Sunshine, New York’s statewide coordinating judge for matrimonial cases, wrote in the New York Law Journal in March.
Judge Sunshine added that he would consider how parents were behaving toward each other before their court date. “Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong,” he wrote.
But some clients need the courts to keep spouses in line, said Dana Stutman, a founding partner of Stutman, Stutman & Lichtenstein in New York. “People who don’t behave anyway, with no immediate spanking from the court, they don’t care,” she said.
Lawyers need the courts, too. Unable to file motions in divorce proceedings, they are engaged instead in what Ms. Stutman called “letter wars.”
“It is childish, but it’s all we can do right now,” she said. “You basically lay out your argument advocating for your client. But the person who has the power has the control.”
As an alternative, some states have virtual courts, which are efficient but have a few drawbacks. Ms. Chinitz said she had attended a virtual court session in Tampa, Fla., from her home in Greenwich, Conn. The judge had his robe on and a Zoom backdrop of his courtroom. But a lot was lost in streaming.
Marking documents as they are entered into evidence is tricky, Ms. Chinitz said. But the client interaction is the real stumbling block.
“Quite often, your proximity to your client allows you to do things privately,” she said. “You can’t whisper to them on Zoom. You can’t kick them under the table and tell them to shut up.”
More complicated still is when assets are held in different countries. Commercial courts in the Cayman Islands have been operating by video since the end of March, in an effort to keep matters like high-dollar divorces moving along, said Robin Rathmell, partner in the Washington and London offices of Kobre & Kim.
“In commercial cases, there’s a reason to do this to keep the world moving, but in criminal law, it would never work,” Mr. Rathmell said. “Divorce cases can range from borderline commercial cases, if there’s a lot of assets, to near criminal cases if there’s child neglect.”
Renegotiating a Divorce
People who have agreed to pay support cannot simply stop if their income has dropped substantially. The first step they must take is to file a motion to modify the payment, Mr. Rubenstein said. Even if the courts are closed to new matters, he added, people should notify their ex-spouse in writing if their income has dropped.
“When the courts reopen, they are going to be incredibly receptive to this,” he said.
A 15 percent drop in income is grounds for modification. “My clients are feeling 50 percent to 80 percent drops,” Mr. Rubenstein said. “These are high earners, but these are quite significant changes.”
If the court is closed, the paying spouse needs to file a motion with the lawyers involved to set a date for the change. Just stopping or reducing payments puts the paying spouse at risk of being ruled in arrears, which comes with penalties and interest.
On the other side, receiving spouses need to protect themselves with language that stipulates how and when support might return to a previous level.
“This is a case of you have to work together,” Ms. Wagner said. “We just don’t know how long this is going to play out.”
Despite the upheaval, lawyers say they have one constant piece of advice: Do not use the pandemic as an excuse to get even with an ex-spouse.