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Divorce During A Pandemic

Courts may be closed and cases delayed, but family law is still in business.

Here’s divorce, and then there is divorce during a pandemic. Neither option sounds like a good time, but COVID-19 has placed an added layer of stress on married couples who decided 2020 is their year to part ways. As with everything else, COVID-19 has left its mark on family law. Many couples who sought a divorce at the first of the year are still waiting on a court date, as nearly all hearings and trials have been pushed back. Or, they are navigating the end of their marriages with their lawyers and the courts via Zoom meetings and hearings. Divorced couples with kids who finally got used to their possession schedules have found themselves having to negotiate terms all over again. If spring break never officially ended, when is it time to return the child to the other parent? Whose turn is it with the kids when weekdays meld into weekends? When both parents work full-time, either at the office or at home, who oversees remote learning for the kids when schools are closed? In the case of a sudden job loss or furlough, what happens to the child support agreement?

There isn’t a playbook on “How to Divorce During a Pandemic,” but Dallas family lawyers are essentially writing one as they go. Joshua Northam, a family lawyer with Shackelford, Bowen, McKinley & Norton, LLP, says family lawyers are starting to focus on what divorce will look like once there is a return to normal. It may never be the same—for better or for worse, he says. “It’s fair to say COVID-19 has consumed every aspect of daily life for some time, family law not excluded,” he says. “Fortunately, the Supreme Court of Texas quickly issued a blanket, statewide order that says that if divorced or divorcing couples have a possession order in place, follow it. Even though nothing is normal, we (lawyers) have been asked to maintain the status quo as much as possible. Family courts tend to favor consistency.”

Now that more than a half of a year has passed since the pandemic began, more divorced couples who share children are finding their new rhythm with possession schedules and financial arrangements. At first, Northam says, he received many calls from clients who had differing risk tolerance views of the virus. One parent may feel perfectly comfortable traveling to the beach with the kids during a pandemic, and the other may want the kids to stay home. How can one parent govern what the other does when it’s not their turn? Other calls involved finances about child support in the case of a job loss or furlough. Expenses remained the same, but income drastically changed. Slowly but surely, divorced couples are beginning to navigate their way through the upheaval with their lawyers’ guidance.

“There is a new normal in divorce proceedings, just like there is a new normal in life. This year’s divorce proceeding may not look like last year’s, but the law is the same.”

Maryann Brousseau, Brousseau Naftis & Massingill, PC

“Unfortunately, some divorcing couples start from a position of not agreeing no matter what, so for those couples, that will still be the case in a pandemic,” Northam says. “However, something interesting has happened in some of my cases. The pandemic has forced people to get creative and try to get along. It’s a natural consequence of things being shut down. You can’t necessarily go to the courthouse to fight it out every time you can’t agree, because access to the courts is now more limited. This has cut out some of the petty disagreements. It has forced family lawyers to get creative, too, and work with the clients to effectively handle modification and hearing requests by video. It has forced everyone to reflect on the best use of time and money and has forced us, as lawyers, to shift our focus to the counselor aspect of our job to get creative by offering new compromised solutions.”

Abby Ewing, a family lawyer with Estes Thorne & Carr PLLC, says she has been pleasantly surprised to see her clients be favorable to innovative problem solving. “I hope it continues,” she says. “Courts are going to be slower than they normally would be for a while. We are having to lean into informal settlements to help couples resolve things. I have been encouraged by the number of parents who reach out to each other and are more flexible. More people are realizing that they aren’t going to have the immediate solution to their problems they were hoping for. Some are even voluntarily changing their possession schedules so the number of exchanges between households is reduced in an effort to keep everyone healthy.”

Then there are the couples who are going to fight, pandemic or no pandemic. The “new normal” has introduced reasons to fight that didn’t exist before. One example is education. Will the kids stay at home and learn virtually or go back to school? “New issues have come into play,” Ewing says. “My sense is the courts aren’t going to want to make these decisions and will give one of the parents the ultimate decision-making authority, so the arguing may continue for some.” Divorce is stressful enough, Ewing says, and she is making an effort to be sensitive with clients who now have pandemic-related stress on top of the pain and stress of their marriage ending. “As lawyers, we need to be more patient and understanding and encourage our clients to do the same,” she says.

For some couples, being stuck in the house together for months with limited access to the outside world has instigated divorce, and for others, it confirmed what they are already knew—the marriage isn’t meant to be. Kelly McClure, a family law attorney with the McClure Law Group, says some of her clients told her they decided to throw in the towel once they realized the pandemic will likely be here longer than first expected

“Calls to us about divorce because of mental health issues have skyrocketed,” McClure says. “Many are from couples who travel a lot for work. They don’t normally spend much time together and are now seeing flaws in their marriage they haven’t noticed before or previously swept under the rug. Some stay-at-home parents have discovered their spouse, who normally travels or is at the office all day, is having an affair. Some of my clients who were rarely at home during the day have discovered the stay-at-home spouse isn’t as nurturing to the children as they assumed.”

To ease the overwhelming feeling of defeat or despair that often accompanies making the decision to divorce, Keith Nelson, a family lawyer with Orsinger, Nelson, Downing & Anderson, LLP, helps his clients craft a roadmap for their divorce—a plan that strategically takes them from the initial consultation and filing to what their life will look like once the divorce is final. This nails down a plan that will guide them long term. This service in his family law practice has become more important than ever as people struggle with divorce and the uncertainty of the pandemic.

“Divorce is the second-biggest stressor in life, behind the death of a child,” Nelson says. “I have learned that people get through divorce better when I create a projected timeline of their particular case and help them follow it.” This can consist of temporary orders, contested temporary hearings, custody evaluations, depositions, document production, and investigative tasks, he says. When clients are in the middle of an already high-stress divorce, they can be weeks or months into the case and feel like there is no end in sight.

“This ramps up their anxiety because, through their lens, they only see their case as free-floating, with no apparent plan,” Nelson says. “As a result, the case can go on longer than it should. Anyone with an IQ higher than the temperature outside knows that because of this pandemic, there is no certainty.” Nelson helps create some certainty for his clients by encouraging the scheduling of a realistic date for mediation, which is typically required by the courts, anyway. “Even in non-COVID times, it is a fact that the vast majority of cases settle without a final trial on the merits,” he says. “Trial dates often get cancelled or rescheduled, but during this pandemic, family lawyers must tell their clients that the uncertainty of a final trial date is much greater now than ever before. This fact alone places greater emphasis on the need for scheduling of a strategically timed mediation. You don’t want it to settle too quickly, but you also don’t want it to drag on. Timing is critical.”

“This is a stage of your life that is ending. It’s sad and difficult, but if you hire the right lawyer, you can finally move forward. The unknown can be a brighter opportunity.”

Jessica Thorne, Estes Thorne & Carr PLLC

How to get from the filing of a divorce to a signed decree doesn’t follow a straight line like it might have before the pandemic. With courts under strict COVID-19 rules from the Supreme Court of Texas, most of the meetings, hearings, and negotiations involved in divorce are taking place online with virtual meeting platforms, such as Zoom. At first, it was difficult for both clients and lawyers to envision how this could work, but it has become a tool in divorce that many lawyers want to permanently establish as a part of their practice. McClure says expert witnesses, such as psychiatrists, have appreciated the virtual platform as well. “There are a few aspects of this we can hopefully maintain in order to keep the costs of divorce down for our clients because so much time and money is saved,” she says.

Jim Mueller, a family lawyer with Verner Brumley Mueller Parker PC, says Dallas area lawyers have been impressed with how local courts have stepped up and efficiently handled divorce cases virtually since the pandemic began. There was about a two-week period in March where everything remained unknown, then things picked back up with virtual hearings and cases moving through the system again, he says. “From the standpoint of so many things being shut down, Texas did a great job, and lawyers are adapting,” he says. “It’s not uncommon now for me to have a three-day trial or several hearings in one day all on Zoom.”

Brad LaMorgese, a family lawyer with Orsinger, Nelson, Downing & Anderson, LLP, says oral arguments by Zoom have been ongoing in his practice since mid-March. He understands that his clients are under stress and want to move their cases through the system as quickly as possible. While he is thankful virtual meeting platforms have come to the rescue, he is confident the traditional courtroom divorce is here to stay. “There’s no replacement for a good old-fashioned, in-person representation at trial, but initial consultations and some hearings go well over Zoom,” he says. “In many ways, divorce is business as usual, and in other ways, it’s different. Either way, lawyers can still adequately represent their clients.”

In some instances, mediation and consultations by Zoom—even court hearings by Zoom—have been more efficient, says Melinda Eitzen, a family lawyer with Duffee + Eitzen. “Before COVID-19, a motion to compel discovery at the courthouse took two hours because we would have to wait our turn while other cases were being handled,” she says. “Now, no one needs to drive to the courthouse, and the judges on the whole are scheduling us for a specific time, so we aren’t waiting hours for our turn.” Lisa Duffee, Eitzen’s partner at Duffee + Eitzen says, “I have been impressed by the judges, mediators, and the Bar’s ability to adjust and move these cases forward during what appeared to completely shut down the courts during this historic time. The adaptability is remarkable.” Adds Eitzen, “Also in our firm, Judge Marilea Lewis is presiding over some divorces as a private judge for couples who don’t want to wait for the pandemic to pass. We are all working around the obstacles, so clients can move through their divorces and on with their lives.”

While Zoom has, in some ways, maintained the progress of filed divorce cases, it is also presenting challenges for family lawyers who want to do everything they possibly can to protect their clients—including going to court. As of October 1, 2020, Texas courts have been attempting to impose virtual jury trials in civil and family law cases, so that the wheels of justice keep moving. But this is not without bumps in the road. “Some lawyers, including myself, have had some concerns about the constitutionality of virtual trials because we have a right to due process—to see the people testifying for or against our clients and to ask them credibility questions and cross-examine them,” says Michelle May O’Neil, a family lawyer with O’Neil Wysocki P.C. “How effective is this on Zoom? We can’t see if someone is being influenced by a text message or if children are sitting off camera watching what is happening. There is little control over outside influences. From a lawyer’s standpoint, how can I look at someone in the eyes and know if they are telling the truth on Zoom?”

O’Neil also points out the struggles the Zoom meetings and hearings simply can’t solve. Many decisions, such as those regarding the education of the children, default to the parent with primary conservatorship, and some parents are feeling left out of important decisions. “The judges can’t micro-manage everything that is going on with families during this pandemic,” she says. “Non-primary residence parents still have the right to make decisions, but they are getting overruled right now because of the way the law works. Lawyers are becoming armchair quarterbacks and working through things virtually to get to an agreement with this Covid quagmire we have found ourselves in. In some ways, it has become the wild, wild west again. It’s difficult to enforce child support and jail a parent for contempt of court when there are COVID-19 outbreaks in jails. There has, unfortunately, been a bit of a free-for-all for those who are disinclined to follow standing orders, and we can’t get any relief because we can’t get an in-person hearing. Remedies are limited, but with clients now being required by law to appear by Zoom, it’s starting to change, and judges are coming down on those who are clearly trying to take advantage of the situation.”

“There is a new normal in divorce proceedings, just like there is a new normal in life. This year’s divorce proceeding may not look like last year’s, but the law is the same.”

Maryann Brousseau, Brousseau Naftis & Massingill, PC

Clients who choose a collaborative divorce have been less impacted by the COVID-19 pandemic because the process intentionally leaves the courtroom and judges out of the divorce. As hearings get pushed and judges and litigators are working overtime on Zoom and other virtual meeting platforms, divorce attorneys who specialize in collaborative law have proceeded with business as usual. The collaborative law process focuses on the goals, interests, and concerns of the clients using a structured, team approach to get the clients to a final resolution. This team approach is an interdisciplinary model and involves engaging other professionals in the collaborative process to directly address the psychological, financial, and legal aspects. A mental health professional, financial professional, and any other experts necessary are involved to assist the clients in reaching a resolution.

A collaborative divorce includes a series of meetings with an agenda,” says Esther Donald, a family lawyer with GoransonBain Ausley. “The only difference right now is that most of these meetings are taking place by Zoom. The clients can still meet on their own with the neutral mental health professionals and financial advisors. The pandemic really pulled back the curtain to reveal that, no matter what is happening in the outside world, if clients try to move forward productively, the divorce can proceed.” In a world that seems out of control, divorcing clients appreciate that they can control their own decisions about their divorce. “They can’t control furloughs and illness, but they can control how their family dynamic will look once they reach a resolution,” Donald says. “The collaborative process is flexible and basically impervious to what is going on right now.”

Carla Calabrese and Dawn Budner, family lawyers and partners at Calabrese Budner, trademarked The Emotionally Intelligent Divorce™, a modern approach that recognizes the “emotional divorce” that is a part of every case. “Divorce is so much more than dividing assets and parenting duties,” Calabrese says. “It’s restructuring a whole family. We want to provide resources to help our clients, given this reality.”

According to Calabrese, studies show that lawyers often score high on intelligence, but below average on emotional intelligence—the ability to identify and understand emotions in ourselves and others. With emotional intelligence comes better communication and increased focus on an unbiased, non-reactive strategy to achieve the client’s desired outcome.

“We view our role as not just legal experts, but counselors who can help our clients get to ‘divorce day two’ in the best possible position, emotionally and financially,” Budner says. “We want to be a part of the solution, not the problem. An emotionally intelligent lawyer can guide you through the turbulent times instead of riding the emotional waves along with you.”

Well Represented

Choosing the right divorce lawyer can make all the difference.

When tempers flare and costs rise, it’s tempting for divorcing couples to choose the kitchen table divorce, where they try to work out the details themselves without the involvement— or expense—of lawyers. Even couples with the best of intentions can overlook things in a divorce that could harm or help them in the future, particularly where finances are involved. What saves a couple money and time today, could costs thousands of dollars years later in court.

The family lawyer you choose can make all the difference when it comes to a fair settlement. Often, couples are so entrenched in the bitterness and emotion of divorce, it’s difficult to clearly look at the split from a business perspective. When each party is well represented by an experienced and reputable family lawyer, their best interests are protected and it’s more likely everyone will walk away feeling better about the resolution.

“If you don’t trust your attorney, the process will become even more difficult and expensive than divorce generally already is.”

Maryann Brousseau, Brousseau Naftis & Massingill, PC

“Divorcing couples don’t necessarily have to hire lawyers,” says Carson Steinbauer, a family lawyer with Shackelford, Bowen, McKinley & Norton, LLP. “Although it would be a conflict of interest for one lawyer to represent both parties, some couples choose to hire one lawyer and have only one party represented to keep costs down.” This is a good option for couples who agree on everything and have equal access to all financial accounts, she says. “They should write everything down on a piece of paper, or even a napkin, and list out how they want to divide their estate and co-parent the children,” she says. “Once they’ve hammered out the details, the lawyer can the draft the final decree of divorce.” Steinbauer cautions that this type of arrangement and level of agreement among couples is rare. “When significant assets and children are involved, it’s almost impossible to achieve, and hiring separate counsel becomes a necessity,” she says.

When the kitchen table/paper napkin divorce scenario is impossible, it’s time to look for a qualified divorce attorney. A successful divorce starts with this relationship, so the lawyer you choose to represent you and your estate matters. “In any divorce, whether it is complex or pretty straightforward, I always advocate shopping around for an attorney,” says Jessica Thorne, a family lawyer with Estes Thorne & Carr PLLC. “Hire an attorney you connect with. This is someone you are going to see and talk to a lot during this really difficult time of your life. You want to make sure you click.”

Be wary of lawyers who over-promise outcomes and make guarantees, because in divorce, there aren’t many. Jim Mueller, a family lawyer with Verner Brumley Mueller Parker PC, says he doesn’t discourage potential clients from interviewing  as many lawyers as they can before hiring one, even it means they don’t hire him. “You will find lawyers with all kinds of qualifications—board certified and academy members,” he says. “Check all of the credentials, but most of all, choose one who fits personality-wise. If you don’t have a trusting relationship with your lawyer, it is going to be a bad experience. You are about to be in the trenches together. I may not be the right fit, but someone else in my office might be. Or maybe a lawyer in another firm, and that’s OK. When you are in a divorce, especially one that is contentious, it can be a very invasive experience. Interview lawyers to make sure you have a good fit. Choose a lawyer with experience in your particular set of circumstances. For every qualified lawyer, there are at least 20 who aren’t.”

“Get the best lawyer you can afford who is experienced, educated, and has a good reputation with other lawyers and people you trust.”

Kelly McClure, McClure Law Group

More than 90 percent of divorce cases settle out of court in mediation. This is a good thing, because it means costs are better controlled. However, some still go to court where the judge makes the decisions, and a few make it to jury trial. This is why it’s important to hire a lawyer who can handle your case, no matter where it ends up–at the negotiation table or at the courthouse in front of a judge or jury.

Natalie Webb, a family lawyer with  Webb Family Law Firm, says sometimes, a firm that takes a team approach can come in handy.  While one lawyer in the firm may be more adept at handling a case with a complex estate, another on staff may excel at splitting up the family business. Another lawyer at the firm may get involved who has more experience in complicated child custody matters. “With a team approach, you will always have someone available to talk to you about your case,” Webb says. “No matter what, you want a lawyer who can stand up in a courtroom and advocate for you, but who starts with listening to the financial and emotional needs of their clients and their families with the goal of negotiating a settlement out of court that meets these needs. You don’t want a lawyer who encourages you to litigate just to litigate.”