Navigating Divorce During COVID-19

April 29, 2020

It has now been more than one month since we, like most of you, have been asked to isolate ourselves, maintain social distancing, and essentially hunker down at home as we ride out this “storm” more formally known as the COVID-19 public health crisis. During these times each day mostly feels the exact same as the one which came before it and, for better or for worse, we are stuck sharing the same (increasingly constricting) four walls with our families with little to no other options! Heightened stress and anxiety caused by the public health crisis and its effect on our economy surely do not help that equation. By now, we presume you have heard some iteration of the observation most commonly stated jokingly: “When this is all over, the divorce rate is going to soar!” That speculation has even now made it onto the pages of The Boston Globe.

Sadly, this “joke” is very much a reality for many, whether they are families who had just begun navigating the divorce process when COVID-19 hit (and perhaps were still living together) or families who were still intact, perhaps only in the legal sense of the word, prior to this crisis. Massachusetts Probate and Family Courts remain effectively closed except for emergency matters. With Governor Baker’s Stay-at-Home Advisory in effect until at least May 18 (and likely beyond), Rubin and Rudman’s family law attorneys have been advising our clients as to their options for advancing their cases and planning for the future during this unprecedented time.

WHAT CAN I DO?

The Probate and Family Court may not be presently conducting hearings (except for emergencies), but they are open to accept new filings and pleadings. We are certain that when the doors to the courthouses reopen, the Probate and Family Court staff will be inundated with new filings, new pleadings, and scheduling requests from litigants who are impatient to have long-delayed disputes resolved. Filing now can preserve retroactive relief eligibility in certain matters and may increase the chances that your matter moves forward sooner than others once hearings are again available for non-emergency matters.

We are also advising our clients to take advantage of the many alternative dispute resolution options still available and often at significantly less cost than litigation. Whether it be engaging in negotiations and written settlement proposals, scheduling remote mediations via videoconference, or having a good old-fashioned telephone call with opposing counsel, we are using the current obstacles to litigation as an invitation to engage the other spouse’s attorney in finding more creative and less formulaic solutions to the parties’ disputes. Now is as good a time as there will ever be to seek to work collaboratively towards a common goal – achieving some peace for our clients in their family law matter during an already unusually stressful and uncertain time in the world.

WHAT IS AN EMERGENCY DURING THIS TIME?

During the COVID-19 pandemic, emergencies eligible to receive some form of a hearing (e.g. a telephonic, videoconference, or in-person hearing) are reserved for only the most serious of crises. Incidents of physical abuse or threats of harm to a party or a child is clearly an emergency. However, Rubin and Rudman family law attorneys have been successful in obtaining emergency telephonic contempt hearings for custody issues such as a parent not abiding by a court-ordered parenting plan with the pandemic as the stated reason (or pretext). On March 24, 2020, Probate and Family Court Chief Justice John D. Casey wrote an open letter stating clearly that “[p]arenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order.”

Even if your issue is not deemed an emergency, but is vitally important to you, your family, or to the outcome of your pending family law matter, resourceful attorneys can make a joint request to the assigned judge asking for a pending motion (and corresponding opposition) to be considered administratively and ruled on the pleadings, without a hearing, pursuant to Massachusetts Domestic Relations Procedure Rule 78. To be sure, judges are not bound to do so and may determine that a hearing is required, but depending on the issue, this is an option that may be worth exploring in some situations.

WHAT TO DO WITH MARKET-AFFECTED MARITAL ASSETS?

Many of our clients have been asking how this very volatile economic period will affect the division of retirement account(s), the marital home, business interests or other assets. When is the best date to divide retirement accounts and other assets? If a date was already agreed to, should that date still be utilized? When will it be the right time to place the house on the market for sale? As always, the answer depends on the unique and specific circumstances of each case, but these are important questions to discuss with your attorney and attempt to address what may not be able to be known for many weeks or months to come.

HOW WILL A JOB LOSS OR INCOME REDUCTION AFFECT FINANCIAL SUPPORT OBLIGATIONS?

This may be the toughest question of all to answer in the middle of the surge for this pandemic. Depending on whether your matter involves a pending divorce action or a prior divorce judgment for which a modification may be in order as a result of a COVID-19 employment status change, the best advice and most cost-effective solution is likely to vary case by case. In all circumstances, we recommend that an individual who has suffered a loss of employment/income seek temporary government benefits (e.g., unemployment assistance) to lessen the blow. We encourage you to speak with a Rubin and Rudman family law attorney if you or your spouse/former spouse’s employment status has changed due to the COVID-19 pandemic. Maximizing your ability to maintain, reduce or increase support may require certain actions to be taken now in order to minimize the adverse financial impact on you, your family and your business.

The one certainty in this time of so many unknowns: Stay safe!

Rubin and Rudman Family Law Professionals: