The pandemic continues to have a profound effect on family life and marriage. For some, increased time at home has revealed issues that were once masked by busy schedules but now seem resolvable only by divorce. If you wish to begin the divorce process, or you are going through one, here are some key things to consider when it comes to the pandemic and divorce.
What You Should Know About the Pandemic and Divorce
Should You Wait?
Family courts are open, and although they are operating at limited capacity, you may begin the divorce process now. In 2020, many courts shut down temporarily because of California’s stay-at-home order. The shutdown led to a backlog that means some cases may now face delays.
If you have decided to get a divorce, the COVID-19 pandemic is not a reason to delay. With or without a pandemic, obtaining a divorce is not automatic. California has a statutory six-month waiting period for getting divorced (Fam. Code, § 2339). There are no exceptions to expedite the process. Often called the “cooling off” period, the reason behind the six-month waiting period is to give spouses the opportunity to decide if they are committed to dissolving the marriage. You may want to get the divorce process started sooner rather than later, so the six-month clock begins to run.
The pandemic has affected families in different ways. Based on your circumstances, you may need emergency court intervention. The courts are processing emergency filings on a timely basis. Beginning the divorce process also allows you to obtain temporary orders from the court on a range of issues, including spousal support, child support, property division, and child custody. Despite the court’s limited operations, you may file papers seeking temporary orders.
Even if you are not committed to filing for divorce, preparation is critical to make an informed decision. Obtain information about the divorce process from an attorney, gain a better understanding of your finances, and speak with someone who may help you consider the next steps.
How Have Family Court Procedures Changed Because of the COVID-19 Pandemic?
Some court procedures have changed in response to the pandemic. The Judicial Branch of California enacted emergency rules related to COVID-19, many of which are still in effect as of today’s date. Some key rules that may affect your case include the following:
- To protect the health and safety of the public, courts may require proceedings to be conducted remotely (Emergency Rule 3). This means you may need to appear at court proceedings by video, audio, or telephonically rather than in person. Court websites list the process to appear in court remotely. If you need to appear by video, make sure you have the appropriate virtual platform downloaded ahead of time.
- Another rule that may apply to your situation involves support orders. An order modifying or terminating a support order may be made effective as of the date the request and support papers were served on the other party or that party’s attorney (Emergency Rule 13). If you seek support orders, filing your motion as soon as possible will preserve your ability to request that the support orders be modified retroactively to the earliest possible date.
These rules will remain in effect until 90 days after the Governor declares the state of emergency related to the pandemic is lifted or until amended or repealed by the Judicial Council. Make sure to check current court guidelines.
Many family courts have mandatory electronic filing of documents, including Santa Clara County, San Mateo County, and Santa Cruz County. You may file documents in person at the courthouse clerk’s office, however, because of the pandemic, clerk’s office hours may have changed. Some clerk’s offices are open only for limited hours for parties who need to file restraining orders or other urgent pleadings.
How Have Valuations Changed Due to COVID-19?
The economic crisis brought about by the COVID-19 pandemic may affect valuations and property division in your divorce, both for pending and for future divorces. As a consequence, when dividing property during a divorce, litigation may arise over whether courts should shift the valuation dates to take into consideration the financial downturn. The downturn has likely affected the valuations of real estate, businesses, investments, and retirement assets. Some businesses, however, may not have had a downturn, and shifting the valuation date may be unwarranted.
What if Domestic Violence Has Occurred?
For many families, domestic violence has increased during the pandemic. Stay-at-home orders created an increased risk of violence for individuals living in a home with an abusive partner or family relative. Abuse under the Domestic Violence Prevention Act includes physical abuse but also acts that destroy the mental or emotional calm of the other party.
Victims of domestic violence have access to protection by law. To protect yourself and your loved ones, you may seek a domestic violence restraining order in addition to calling on law enforcement.
Courts process domestic violence restraining order requests on an expedited basis. These requests may be more likely to be granted on a temporary basis now because the court understands that victims are in a unique circumstance, given the pandemic.
Must I Comply With Custody Orders During the Pandemic?
Yes. If custody orders are in place, they must be followed. The COVID-19 pandemic is not, by itself, a reason to deny visitation or parenting time. Also, parents are expected to follow public health orders.
Where parents agree to change a custody order, they may do so. Where parents do not agree on changes to a custody order, a parent may still request a change, but in most cases, must show a change in circumstances since the existing order was made.
Is It Possible to Mediate a Divorce During the Ongoing Pandemic?
Definitely. The pandemic has prompted lawyers to adapt to virtual settings. Rather than attend mediations in person, attorneys often conduct them on virtual platforms, like Zoom. Pre-pandemic, parties traveled to an office or law firm for mediation, but with virtual mediations, no travel is necessary. In the near future, virtual mediations may continue. Once COVID-19 restrictions are lifted, however, there may be a return to in-person mediations.
Whether you are choosing to file for divorce or are in the middle of the divorce process, it is a hard time with life-long consequences. Consulting an attorney is a valuable first step to understand your rights and obligations and to ensure you understand the intricacies involved with the pandemic and divorce.
Maya Younes is an associate attorney with the trial law firm McManis Faulkner in San Jose, California. www.mcmanislaw.com