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Managing the divorce process when the courts are (mostly) closed.


Twenty-four hours a day, 7 days a week, quarantined together for the foreseeable future…even the strongest of couples and the happiest of families are feeling the pressure right now.

However, despite the reported rise in divorce rates in China due to COVID-19, in my practice at least, I haven't seen any evidence to show that shelter-in-place orders have had much of an impact so far on the number of couples seeking divorce.

Where the impact is really taking a heavy toll, is on those couples who had already started divorce proceedings, or on those who were strongly considering it before the pandemic hit.

And if you fall into either of those categories, you'll likely have a whirl of questions you'd like to ask. I'm going to attempt to answer some of them below, but if there's anything I've missed out, please do get in touch and I'll help you clarify your current options.

What's happening with the courts?

Courts are working on an emergency basis right now and have limited court services to July 1. Whether or not that will be extended remains to be seen but either way, the likelihood is that there will be a significant backlog.

In my local counties — Clark County, WA, Multnomah County, OR, Clackamas County, OR, and Washington County, OR — the courts are allowing new cases to be filed, which is good news, of course, but will add to the backlog of cases. Requests for hearings and mandatory settlement cases won't be scheduled until after June or July, depending on the type of matter you need help with, which means the actual hearing or conference date might not happen until August or September, or perhaps even later.

Will the court triage motions and set them based on urgency? Will they allow us to go back to scheduling hearings based on scheduled docket days? No one knows but hopefully things will become clearer over the next couple of months.

What you can do right now if you're considering a divorce.

While the family courts might be closed to everything but emergency cases, such as those involving abuse allegations, you can still take action right now to help make the process easier when courts get back to business.

Mediators are still open for business, via video conferencing, and we're here to help you get your ducks in a row in advance of your court date, or in many cases, help you avoid the courts altogether.

In my own practice, I'm helping with a broad range of questions. Along with folks wanting to move forward with their divorces, I'm seeing more post-divorce requests for assistance — child support, relocation, parenting plan modifications. These are the regular things that percolate and may have been resolved through a court process, or maybe the parties would have reached out to a lawyer before but, due to economic worries they are seeking mediation instead.

The shelter-in-place orders mean that lots of couples are still living together beyond the date they'd intended, which leaves a plethora of household boundary issues to negotiate — when each parent will be 'on-duty' with the kids, how expenses will be shared, what they will and will NOT talk about…

Some of these couples may still need to engage lawyers and seek a court date but, for many, these things can be decided through mediation and even those who later go to court can save time by taking care of some of these preliminary issues in a written agreement.

I've also had folks specifically want a lawyer-mediator so they can get a broader perspective about what's happening with the courts, how to file papers, and what the general legal information says about issues such as co-parenting, child support, and other financial matters.

What you should do if you've already started divorce proceedings.

My heart goes out to you — just when you were finally getting to grips with divorce proceedings, everything grinds to a halt. Not only that, the pandemic has brought with it an added layer of uncertainty about the future of your finances and many parties are having to find more creative ways to balance the benefits and burdens of economic risk, while still moving forward with disentangling their marriage.

As the pandemic continues, problems may arise around spousal support, child support, or how much time each parent is allowed to spend with their children — and it can feel like there's no one to help you through these issues. Lawyers are shrugging their shoulders and telling people, "oh well, the courts are on hiatus and we don't know what you should do…so just follow the court order." When you're already feeling stressed, the lack of structure and lack of information only serves to heighten tension and fuel the conflict.

If this sounds familiar, again talking to a mediator might help you reach new compromises and find a long-term solution, or at least a solution that'll hold until the courts reopen.

However you decided to proceed while under quarantine, it's important to note that the courts are serious about not letting people "use" COVID-19 as an excuse for ignoring or "selectively following" court orders. How you behave during this period will be taken into account when your case finally comes to court so please do seek help or advice if you think your conflict is likely to escalate to unmanageable levels.

Renegotiating your divorce terms.

Those of you who've already negotiated divorce terms are, I know, no less worried about your agreements. Many of you will be facing significant changes to the circumstances that dictated your divorce settlement — financial challenges, lost assets, reduced income — so what is expected of you right now?

The most important thing to remember is that you are still obligated to pay any child or spousal support you've already agreed or been court ordered to pay. Failure to do so may result in interest charges on the arrears, and depending on your individual circumstances, may result in severe court penalties. If you can pay all your obligations when they are due, then you should definitely do that. If you are struggling, pay what you can reasonably pay and still keep yourself sheltered and fed.

When the courts reopen they might be willing to look at changes to your personal circumstances, so it's a good idea to talk with your lawyer to make a plan about how to move forward once court dockets reopen. If you're worried that your spouse might be the one attempting to modify agreed payment amounts, it would be a good idea to speak to your own lawyer to make sure that you're protected and that any changes brought about because of the pandemic don't necessarily become permanent.

Of course, there are no guarantees here and courts, so far, haven't given much guidance as to whether or under what circumstances they would entertain a re-do on a previously negotiated agreement. If you and your ex-spouse feel like you'd be able to negotiate, it might be worth seeking help from a mediator to help you draft an agreement that works for both parties.

Mediation during quarantine.

Like almost everything these days, mediation during the pandemic looks a little different.

Already complex emotional situations have been heightened and all parties are dealing with additional anxiety over an uncertain future. So I'm walking folks through the process in a way that will help manage these emotions. For instance, rather than jump straight to joint mediation sessions, I tend to start now by doing an individual pre-mediation session with each party to help us all plan and prepare.

And with everything happening via video, I'm conscious about breaking things up into multiple sessions to help battle both the conflict fatigue and the computer-use fatigue that I know we're all feeling right now!

I wish I could tell you more, that I could be specific about when courts will reopen, about how they'll function when they do, and about how exactly you should proceed right now. Unfortunately, like so many of us during this pandemic, I'm working with a whole bunch of unknowns.

However, I want to reassure you that a lack of certainty, doesn't translate to a lack of options — and thanks to mediation, many of the pre-pandemic options for divorcing couples are still available right now. So, if you need help, support, or advice to get you through these tough times, please do get in touch.

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Tuesday, 20 April 2021

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