There are two people, let’s call them Tom and Anne. They’re divorced. Tom works in construction, Anne has been furloughed from her office job. Tom still has work, but it’s light, and Anne doesn’t like that Tom isn’t taking basic safety precautions when he’s around other people.
Does Anne have to send their kids to Tom on the weekend? With stay-at-home orders in place, can she?
Tom sees the writing on the drywall for his job — projects (and paychecks) are thin — and wonders: Do I have to send child and spousal support payments to Anne? Can I pay less?
What if they lived in different states? What if one partner was verbally abusive? What if one was physically abusive?
What does life look like for split families when two of their biggest obstacles — childcare and finances — are exacerbated by the coronavirus?
“It’s a big mess,” says Carolyn Witkus of Griffiths Law, which specializes in high-asset, high-conflict family law. “It’s a big mess because it’s no one’s fault. It’s not the courts’ fault, not the governor’s, it’s not the parties’. I’m on my third emergency motion in the last week or so around financial issues, and we’re talking about people from all socioeconomic strata in all industries. Professionals, business owners, CEOs, senior managers… lots of people are seeing significant economic disruption right now.”
There are two issues that complicate matters, Witkus says: First, the courts are not open to in-person hearings except in select emergency cases (where, for instance, domestic violence or child abuse is alleged) and so there’s a lag in hearing cases related to custody and support payments; and secondly, it’s unclear how the courts will rule on such cases given that they’re often left to the discretion of individual judges. The coronavirus frankly presents a novel situation for the judicial system to sort out.
Although we’re focusing on the segment of the population that is dealing with separation and divorce, resolving the logjam in the courts is a matter of constitutional rights.
“We have the issue of, can you get a court to hear you? Maybe, sometimes, sort of. I’m sure they’re doing the best they can. They’re caught in a tricky situation,” Witkus says. “Citizens have access to the court as enshrined in the Colorado and federal constitutions, and when you close the courts, you lose that due process access. They’re trying to balance what is a pretty tough set of circumstances.”
And on the question of how judges will rule? It depends, Witkus says.
“There is an inherent uncertainty with any of this stuff,” she says, “and in this circumstance, where there is increased social and economic uncertainty and public health uncertainty, I think judges are going to be more cautious and more thoughtful. On the other hand, nobody knows what the consequences of this pandemic are at this point.”
If people are experiencing financial hardships, or if they are concerned about the welfare of their children when the other parent spends time with them, ultimately the best solution is to negotiate an agreement out of court and to circumvent the problems outlined above, says Todd Burnham, of Burnham Law, which practices family law along the Front Range.
“That [requires] a bit of emotional intelligence to look at the short game versus the long game. Some parents will say it’s a risk they’re willing to take,” he says. “What we try to do is counsel those parents who are understandably concerned, and rather than using the legal system, which for our purposes is shut down unless it’s an emergency, negotiate in good faith.”
That idea of negotiating in good faith is critical, Witkus says. She says courts are not likely to look kindly on people who try to use COVID-19 as an excuse to pay less in support or otherwise benefit themselves.
“If you have a genuine basis to say I can’t keep doing this, it doesn’t hurt to ask the court to help,” Witkus says. “But don’t just stop paying because of [the coronavirus], particularly if you’re able to pay.”
Because “the alternative is contempt,” Burnham underscores, which has long-lasting effects.
“One of the facets of contempt is the ability to comply, so if you’re laid off and you don’t have any money coming in, you’ve dwindled your resources and presumably you’re paying rent or a mortgage, that is potentially a legitimate defense to that,” he says. “The key is to try to negotiate with that other person that is co-parenting with you.”
But navigating the already sticky situation of co-parenting and divorce is made harder during this pandemic, and it’s forcing families to make tough decisions that could prevent parents from spending quality time with their children.
“You have non-custodial parents, dads that have spring break planned and they want that kid on that flight and what happens is you have a lockdown in, say, Minnesota and we advise our clients: If you send the child it exposes the child to the coronavirus for sure,” Burnham says. “We don’t know what the living situation is there and they could be there a while, it’s quite possible. These are not easy moves.”
Although tough during this pandemic and in family separation issues, Burnham’s last bit of advice is critical: “This is the time when you step up and get rid of the animosity and focus on solutions.”
