June 11, 2020

Divorce lawyers say technology changes may outlive the COVID-19 pandemic

Stephanie Zimmerman

Dealing with a fractured marriage is never pleasant, but doing it in the middle of a pandemic is several levels more stressful—both for the spouses and for family law attorneys who’ve had to scramble to meet an unprecedented challenge.

The coronavirus crisis that brought stay-at-home or shelter-in-place orders in most states beginning in mid-March also spawned a host of problems for divorced parents, as well as for couples whose divorce proceedings had just started.

“Almost immediately, we started fielding calls from our clients,” says Rita M. Aquilio, a family law attorney with Lawrence Law in Watchung, New Jersey, and co-chair of the ABA’s Family Law Litigation Committee.

Custody and compromise

For divorced parents who’d long ago settled custody issues, the specter of COVID-19 brought new questions, such as whether it’s safe to have children traveling back and forth from Mom’s house to Dad’s apartment or home. In cases where one parent works in the medical field or as an emergency responder or an essential worker, the other parent may wonder whether the child is at risk during visits.

“I’ve had cases where one parent would be driving for a few hours to get the child,” with every stop for gas, food or a bathroom break posing a potential danger, says John J. Schrot, a family law attorney with Berry Moorman in Birmingham, Michigan.

In hard-hit New York City, some parents have balked at taking their children across Central Park from the West Side to the East Side of Manhattan, says attorney Michael A. Mosberg of Aronson Mayofsky & Sloan. “They don’t feel, for whatever reason, that it is safe for the other parent to have access to the child.”

A survey of family lawyers in April by the American Academy of Matrimonial Lawyers found 51% reported getting calls from clients about existing visitation orders.

Several state supreme courts have issued statements reminding divorced parents that visitation agreements must be adhered to even in a pandemic.

Fortunately, many parents work out informal compromises without rushing to the courts. Some agree to longer times at each household to reduce the number of back-and-forth exchanges. Parents are using Zoom, Skype, FaceTime or other video platforms to spend virtual time with their kids or agreeing to forgo overnight visits in exchange for outdoor time at a park.

“It really forces people to engage in informal arrangements,” Schrot says. “You say, ‘We have to engage in a new spirit of cooperation here.’ ”

Aquilio agrees, saying she’s been heartened by the number of clients willing to compromise to protect their children, especially since kids have already had school schedules upended and are feeling scared and isolated from friends and classmates.

“People really are coming together,” Aquilio says.

“But I will tell you, parties that didn’t like each other before the pandemic continue to not like each other during the pandemic,” she says.

In situations where a child could actually be at risk—such as a medically compromised child spending time in a household that’s exposed to the virus—it can be helpful to get an assessment from the child’s pediatrician to use if the problem escalates to court, Schrot says.

But legal moves may or may not work, depending on the judge. One of Aquilio’s clients has an ex-husband who recently returned from an extended visit to a foreign coronavirus hot spot. Her client wanted the visitation schedule changed to limit the children’s exposure, but the judge denied the request, ruling that the kids had their own bedrooms and could safely stay in the dad’s home.

Another judge might have ordered the father to self-quarantine before resuming visits, but “it really is a case-by-case basis,” Aquilio says.

The American Academy of Matrimonial Lawyers has issued advice and tips for divorced or divorcing parents to navigate the crisis.

People who opt not to compromise and instead try to use the pandemic to gain advantage are making a mistake, says Susan Myres, a Houston family law attorney who runs her own firm and serves as president of the academy. “Our judges are telling us, ‘Woe to the parent who uses COVID-19 as a tool, as a weapon to keep the other parent away.’ ”

Mosberg agrees, saying he advises clients that judges won’t look kindly at parents who seem unwilling to foster the other side’s access to the child. “This is the time to rise above and not fall below, particularly as it relates to children,” he says.

Clients also may need to be flexible about money matters if a parent has lost income due to a business shutdown and is late with support payments—though some disputes are bound to end up in the legal system.

“The children still need to eat, so it’s painfully challenging,” Myres says.

Negotiating a pandemic divorce

How much access parties have to the courts depends on where they live. Some court systems have temporarily halted all divorce trials, leaving litigants in limbo until the infection danger passes. In other areas, courts have expanded the ability to electronically file motions and are allowing new actions to be filed as well.

Jurisdictions that already had adopted technological innovations—notably, Texas—were able to shift to videoconferencing for hearings almost immediately.

“States that were more technologically proficient didn’t really miss a beat,” Mosberg says.

Parties with simpler cases are faring better in some jurisdictions. In Houston, uncontested divorces are being handled with electronic affidavits and digital signing systems and no video calls, a practice Myres hopes will continue even after the coronavirus crisis has passed.

“There’s no reason not to,” she says.

For people who were just beginning their divorce process when the virus hit, the pandemic has created new obstacles.

Psychological evaluations of parents—and if needed, assessments of their children—can’t be done face to face in many areas of the country (and tele-assessments are recommended only for time-sensitive or high-stakes situations).

And pre-pandemic research on the value of assets like stocks or real estate may need to be re-done because of all the recent economic damage.

Even serving the other party with divorce papers has become difficult in some areas because process servers are wary of getting within 6 feet of the party they’re serving.

Still, many family lawyers say they’re successfully adapting during the crisis. They are trading face-to-face mediation sessions for platforms like Zoom, where a mediator can create virtual rooms with virtual doorbells for each opposing side and a third room for the attorneys and mediator to talk together.

One of Schrot’s recent virtual mediations lasted a grueling 12 hours, though each side had a chance to get up, stretch or grab a bite to eat while the other side spoke privately with the mediator. “We were finally able to sign off on an agreement shortly after 2 a.m.,” he says.

Though court systems are still working out kinks like how to submit evidence for a virtual hearing, Aquilio says at least one judge she’s interacted with appreciates the efficiency that the technological innovations bring. There are no more clients running in late for the morning court call with excuses that traffic was backed up or they couldn’t find parking.

Some attorneys believe the shift will have positive effects that last well into the future—as long as courts find ways to include people who don’t have the latest technology.

“We’re limited only by our imaginations,” Myres says.

And though the pandemic has pushed some couples toward a final break, for others it’s had the opposite effect. One couple recently informed Myres that facing the deadly virus together made them want to work harder on their marriage.

“Happiest thing I heard all week,” she says. “At least they were willing to try.”

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