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WHAT IMPACT WILL THE CORONA VIRUS HAVE ON MY PENDING DIVORCE
April 19, 2020
CORONA VIRUS: WILL IT AFFECT MY DIVORCE CASE?
The biggest question right now is whether the coronavirus pandemic in New York will affect your pending divorce case. As a Manhattan Divorce lawyer and a Manhattan custody lawyer I can provide you with the following information.
As you know, most court rooms are closed indefinitely until further direction from the government.
However, do not expect the court system to be close forever. Such a consequence would potentially put people in danger as it would force parties who are nor altogether compatible to stay in close quarters for long stretches of time. As such, an alternate plan will be put in close to deal with such cases.
The first question becomes, when the courts do re-open, how will this delay affect your ongoing divorce case.
The governors order that New York is on pause does not require everyone to stay in their homes but rather requires us to wear masks when we are out. When the courts re-open it will be interesting to see whether attorneys and litigants will be required to wear masks and the impact that might have on zealous vocal representation. However, you might expect that the government will institute safety precautions for when the court opens again, masks might be required when you go back to court, or more advocacy will be required to be submitted in writing.
Other courts or judges will likely hold telephone conferences on emerging issues or will have attorneys appear virtually through zoom or FaceTime or telephone.
The next question is whether the coronavirus will affect the substantive parts of your case. For instance, if you had already undergone real estate appraisals and business appraisals prior to the virus, these appraisals will have to be redone to reflect the current financial status of the parties given that real estate prices and business valuations will have gone down, (or perhaps up) and given that the employment situation of the parties will likely have changed.
Next, if the parties were close to negotiating a settlement agreement, the agreement may be far from an execution date given that so many things have changed.
As far as custody cases go, if one or the other of the pier and acted unreasonably during the coronavirus and exposed the subject children to unnecessary or unreasonable risk of exposure, you can expect that the aggrieved party will raise this as an issue for modification of the current child custody order or agreement. On the other hand, it is unlikely that the court will allow one parent over the other to use the coronavirus as a basis for keeping the children from the primary custodial parent during the virus. All parties are expected to abide by current agreements and court orders until the courts reopen. In fact, the police departments have been instructed that until further notice all child custody orders and visitation orders should be enforced.
As and for child support, this issue is particularly troubling since the payor spouse may not have access to the court system right now and they will likely have a change in their financial situation as a result of unemployment and will need to seek modification. The coronavirus pandemic does not automatically change your obligations under an extant child support order. Therefore, if you cannot afford child support because of the virus, it will become necessary for you to file a modification petition. This might be viewed as an emergency application since failure to pay child support could subject you to contempt of court. Each court will handle this on a case by case basis.
The basis for a modification petition is, three years have passed from the date of the order, a change in other parties’ income by 15%, or a change in circumstances which is substantial. Although the parties can waive off on a couple of the bases for a modification petition, neither party under operation of law is allowed to waive the right to modify a child support order under a substantial change in circumstances. On the other hand, if you are the person receiving child support and you were not receiving child support it may be appropriate for you to make an emergency application in Family court or in supreme court for enforcement of that order. Do not wait until last minute to apply for emergency relief. What the courts will do during this this pandemic with respect to enforcement of ongoing child support orders will be interesting because this pandemic is unprecedented. However, it can be expected that the courts will be flexible with helping the parties in reaching an agreement until the financial circumstances stabilize.
Each County Court is handling open or pending cases differently. Some courts are entertaining telephone conferences if the attorneys haven’t been able to settle difficulties between themselves. Other courts will not entertain an application for relief unless it is an emergency.
Be that as it may, you can expect that you may not file a new divorce petition until the courts re-open unless it entails an emergency and even then a special affidavit is required to be executed before you do that or the court clerk will not entertain your application.
That does not mean that you should not retain counsel to start preparation of your divorce complaint. A very common problem and issue that has arisen is whether or not a child should be sent to a daycare center. If you are an essential worker, and you have no other alternative, of course you will have to look into daycare centers that are practicing social distancing and other hygiene practices. However, if the other spouse is available to take care of your child during the pandemic when you are working the courts, when they eventually open, will likely look favorably upon the party that shows that they have been working closely with the ex-spouse or ex-partner in attempting to provide direct care for the child in the home of one or the other spouse or partner.
Of course, if there is family violence, the Family court is always open to addressing a family offense petition. In addition, if there is neglect or abuse of the children, the child protective services will become involved and it is likely that a petition will be filed by them in Family court which will be entertained by the court. If Child protective services does not get involved, then you should file an emergency petition for relief in instances of abuse or neglect. Other than that, there’s not much that can be done until the courts reopen. I hope this information has been helpful. Thank you.
By: Lisa Beth Older, your Manhattan divorce lawyer.
THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT TO BE USED AS LEGAL ADVICE