Divorcing During the COVID-19 Pandemic

by Attorney Talia Simonds

For several months now, the world has been battling COVID-19. Many people have been staying home, and rarely leaving their homes, if at all. Unfortunately for spouses whose marriage is on the decline, this very well mean that the COVID-19 pandemic will lead to divorce. However, because of COVID-19, divorces are a little more complicated now. Here’s why.

1. The Courts are Closed in Massachusetts

Since mid-March, the courts in Massachusetts have been closed to the public. Although all courts in Massachusetts are still transacting business, they are doing so on a modified schedule and protocol. Until early May, the Probate and Family Court has only been hearing emergency matters, which means they have been hearing case regarding medical treatment on the probate side of the Court, and domestic violence and safety issues on the family and domestic relations side of the Court.

However, within the last week or so, the Chief Justice of the Probate and Family Court has instructed each Probate and Family Court in the Commonwealth start working on measures to hear cases that are not necessarily emergencies. Each county is handling this slightly differently, and largely depends on the caseload each county has. However, generally speaking, statewide, the Probate and Family Court in each county is starting to hear urgent, but not necessarily emergency, matters, uncontested hearings where everyone has signed an agreement, and Pre-Trial Conferences and Status Conferences. Some counties are even beginning to hear simpler motions. Thus, the Probate and Family Court is slowly starting to try to get back to our “new normal” amidst the COVID-19 pandemic.

However, this doesn’t mean that it’s “business as usual” in the Probate and Family Court. Although each county is taking new case filings, including new divorces, most counties aren’t scheduling new hearings on these new cases. Instead, the Probate and Family Court is trying to get caught up on the cases that were cancelled from March to May due to COVID-19. Once that backlog is cleared, each county will start to schedule new matters. Thus, unfortunately for new litigants, there will be a longer wait to get into court.

There is light at the end of this tunnel, however. Just this week, the Chief Justices of the Supreme Judicial Court, Appeals Court, and Trial Court issued a joint letter saying that they hope to have each court in the Commonwealth closer to fully functional later this month and throughout June by holding hearings via Zoom and teleconference.

2. Many spouses are unemployed or furloughed

Because of COVID-19, many people have been laid off or furloughed. That means for many Americans, one or both spouses have lost their income, or their income has drastically reduced. This can have a significant impact on the amount of child support to be paid, if a couple has children, and can also impact how much, if any, alimony is paid.

If you are divorcing during this pandemic while you or your spouse are unemployed or furloughed, it can cause the divorce litigation to go slightly longer, because either the judge or the lawyers may want to see if you or your spouse can become gainfully employed while the divorce is pending, so that child support and/or alimony can be calculated.

On the flip side, if the divorce is finalized relatively quickly while one or both spouses are unemployed, it can cause additional litigation down the road once a spouse becomes employed, because then you may be forced to file a Complaint for Modification to modify child support and/or alimony after the divorce.

3. The stock market is down

Most people cringe checking their retirement accounts and investments right now because the market has been down during this pandemic. Unfortunately this can impact a divorce too. If retirement accounts, stocks, and brokerage accounts are part of the marital estate, then the grim reality is that there will be less to divide from those accounts. Although the market will likely rebound eventually, if you are divorcing now, you will have no choice but to accept the fact that there will be less to divide in property division from these types of assets.

4. Complications with the Marital Home and other real estate

The other challenge COVID-19 is presenting to divorcing couples is with real estate. If one spouse is going to retain the marital home, or any other real estate, then that property will have to be appraised. Almost all appraisers require an in-person inspection of the home in order to conduct the appraisal. However, most appraisers will not enter anybody’s home right now due to the social distancing guidelines from COVID-19. This means that spouses are having to wait several weeks, if not months, to have the house appraised. This is, in turn, is causing divorces to take longer, as the court will need that appraisal report to address division of assets in the divorce.

On the flip side, if a home is going to be sold in a divorce, it is now more challenging to sell the home. Real estate brokers can’t have open houses and walk-throughs right now due to the social distancing guidelines. This is requiring brokers to get creative in marketing the sale of your home, and can in turn take longer to sell the home. If the sale of the home is holding up the divorce, then it can take longer.

What we don’t know yet is whether COVID-19’s impact on the economy will cause a downturn in the real estate market, thus making homes sell for less. If homes start selling for less due to COVID-19, then again there will be less to divide in property division.

5. Custody and parenting time may be modified

If a parent has been exposed to COVID-19, or is not practicing social distancing and other health and safety measures recommended by the CDC, World Health Organization, and the government, and those actions are putting their children are risk, the Probate and Family Court can, and is, taking measures to modify child custody and parenting time during the pandemic to make sure the children are not exposed to COVID-19. In some cases, this is temporarily suspending a parent’s parenting time until he/she is healthy or no longer at risk of getting COVID-19. In these cases, the parent whose parenting time has been suspended, is being made up at a later time when it is healthy and safe to do so, but in the meanwhile, giving that parent parenting time via Skype, Zoo, Facetime, or other electronic means. In some more drastic cases, judges are temporarily changing custody until the health risk subsides. Judges are putting the health and safety of the children as the utmost priority, which is having an impact on custody and parenting time.

So what can you do about a divorce during the pandemic? You have some options:

1. Don’t get divorced quite yet

If your primary concern about a divorce is the value of assets and property division, then you may want to hold off on filing for divorce and wait for the market to rebound. If you think you can continue to be civil with your spouse, whether you are still living together or have separated, then you may seriously want to consider staying married a little longer and wait for the stock market and/or real estate market to rebound before filing for divorce.

If you do choose to stay married for now, you can consider entering into a postnuptial agreement. A postnuptial agreement is similar to a prenuptial agreement, but is for couples who are already married. In a postnuptial agreement, you can outline how property will be divided in the event of a divorce. By negotiating a postnuptial agreement now, you can likely streamline the divorce process once the divorce is filed, because the postnuptial agreement will likely already address the financial aspects of the divorce. Then, when you are ready to get divorced, you will have the postnuptial agreement to enforce for financial issues.

2. Mediate your divorce

Just about every county of the Probate and Family Court in Massachusetts has begun hearing uncontested divorces via teleconference and/or Zoom. In order to file an uncontested divorce, you not only have to agree to get divorced, but you have to agree to terms of settlement of the divorce. This includes addressing matters such as alimony, property division, child custody, the parenting plan, child support, health insurance, life insurance, and taxes.

Most spouses can agree to get divorced from the start, but they may not always agree on the terms of divorce from the start. If both spouses are willing to work together cooperatively, they can choose divorce mediation. Through divorce mediation, a trained divorce mediator serves as a neutral, and not as a lawyer, to both spouses, to facilitate the process of negotiating a divorce. With the assistance of the mediator, spouses can reach an agreement on these issues, and a comprehensive Separation Agreement can be drafted by the mediator to be submitted to the court for approval. Once the Separation Agreement, Financial Statements, and pleadings are submitted to the court, all that is left is brief 10 minute hearing for the court to approve the Separation Agreement and grant the divorce. Through mediation, spouses remain in control of the outcome and settlement of their divorce, instead of being decided by a judge.

At Amaral & Associates, P.C., Attorney Edward L. Amaral, Jr. and Attorney Talia Simonds are both trained divorce and family mediators as well as divorce and family law litigation attorneys. Since Attorney Amaral and Attorney Simonds regularly litigate in the Probate and Family Court, they can advise their mediation clients if what they are discussing for settlement in mediation is something the court will approve as part of their divorce. The whole mediation process, from the initial intake, to submitting the divorce filing to the court, typically takes 2-4 weeks. Thus, this process is much faster than a contested divorce, and almost always is much more cost effective.

Through mediation, spouses can have their divorce filed in a matter of weeks, and then just wait for the uncontested hearing, which will likely be by telephone or Zoom right now. This is the fastest way to get divorced during the pandemic.

On the flip side, if a spouse chooses to file a contested divorce, the divorce can be filed right now, and will be docketed by the court. However, it is impossible to say when the court may eventually begin scheduling new cases. Thus, it is likely be to weeks, if not months, before a new contested divorce finally is heard by a judge.

3. Engage a Parenting Coordinator as part of the divorce

If you are more concerned about custody and parenting time as part of the divorce, you can engage a Parenting Coordinator as part of the divorce. A Parenting Coordinator is a family law attorney or mental health professional who works divorced and separated parents to “referee” disputes about custody and co-parenting. In most cases, the Parenting Coordinate has the authority to step in the shoes of the judge and resolve disputes with the same authority the judge has, but the dispute can be resolved in a matter of days, rather than waiting weeks, if not months, to get before the judge. The PC will work with parents to come to an agreement on the dispute, but if parents can’t agree, then in most cases, the PC can issue an decision that has the same authority as a court order. At Amaral & Associates, P.C., Attorney Talia Simonds is the Parenting Coordinator for the firm.

Through an uncontested divorce and divorce mediation, you can agree to a Parenting Coordinator, and add it to your Separation Agreement. Through a contested divorce, you can file a motion to have a Parenting Coordinator appointed by the Court, and also try to negotiate the engagement of a Parenting Coordinator with your spouse and his/her attorney. Once you have your PC on board, you can begin working on any co-parenting disputes, including parenting time due to COVID-19, with the PC, and have these issues resolved very quickly, rather than waiting for the courts to reopen for “normal” business. This way, you get your disputes addressed during the pandemic, but you don’t have to wait weeks, if not months, for the courts to begin hearing new issues.

For more information about getting a divorce during the corona virus, or if you want to move your divorce or family law issue forward then please contact Amaral & Associates P.C. today at (617) 539-1010.

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