Mediation May Be the Best Option for Divorced Families Dealing With the Impacts of COVID-19

By Joann Feld

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Attorneys have transformed their lives dramatically in the past few months to help limit the impacts of the COVID-19 pandemic, and so have our clients.  For lawyers who work with divorcing or divorced couples, this disruption can lead to new challenges as families face unexpected changes in daily routines and struggle to adjust visitation, child support and other issues.

For couples seeking to divorce or to adjust the terms of a divorce, the limited ability to pursue court action on “non-essential” matters can be a real headache.  In the meantime, family mediation is less adversely impacted by court closures than litigation and can be a useful problem-solving opportunity for divorcing couples regarding the arrangements for their children and their financial matters.

Mediation reduces conflict between the parties and can even improve their relationship.  It saves times and money and provides the couple with the opportunity to independently reach agreement.  Mediation is particularly adaptable since the parents themselves make detailed provisions for their children. Mediation generally offers a more cost efficient and time efficient means of resolving divorce disputes. And, in the time of COVID-19, mediation is especially well-suited as an effective alternative to litigation because it can be done while maintaining social distancing.

Some who are dealing with issues relating to divorce may prefer to wait for the courts to return to normal operation.  Eventually, the courts will weigh in on many of these issues and consider the specific set of facts of each case, coupled with the acts and emergency measures the federal and state governments have offered.  In the meantime, commencing and defending legal proceedings will add to the financial burdens of divorced families.  Mediation may prove to be a better, less expensive alternative.

Since the onset of the public health crisis, I have heard from existing clients from all walks of life – including many essential workers — and they are particularly anxious about the effects of COVID-19 on their families.  While the divorce settlement agreements and court orders that set out the legal obligations and rights of the parties have typically been silent as to pandemics, it is clear that COVID-19 will continue to affect standing agreements and court orders relating to a divorce and its impact on family members.

A myriad of social family issues is already escalating due to COVID-19.  Many families are finding themselves with one or both financial breadwinners out of work, while others are compelled to work from home.  Those working from home may be ill-equipped to attend to the needs of their children who are now forced home due to school’s closures while at the same being productive working from home.  How can individuals best manage the consequences of COVID-19 stress and conflict?  How can they avoid damaging intrafamily conflicts?

The wisest starting point for any divorced family whose lives have been turned upside down should be open communication that incorporates a dialogue for negotiation, whether for visitation, child support or spousal support.  The parties can contemplate making concessions and should employ compassion, giving an ex-spouse some time and space to perform obligations within a workable timeline during this unprecedented and extraordinarily difficult period.  A mindful approach by divorcing or divorced spouses will present equanimity to the children, so that they will feel secure and accept that temporary arrangements are just that, and that eventually the family will return to its normal routine.

In New York,  we always defer to the “best interests of the child” as the balancing standard of each parent to meet the needs of the child or children.  Parents must remain truthful with one another about their social distancing, if any, the state of their health and the strides being taken to provide protection for the family.

Parents are wise to reach an understanding on the basic steps each will take to guard the family from exposure.  Is it sensible for the children to move between households during the COVID-19 outbreak, or does that pose a risk of infection, not only within their own home, but also to society in general?

Thanks to social media and technology, even without physical contact, indirect contact may prove to be the right solution for some families.  Consider how the courts may later interpret your approach during these exceptional times.  Try to support discussions and joint decision-making, all while practicing social distancing.

Many other questions and issues can arise in the legal context during the pandemic. Here are just a few:

  • Parents of children may have to struggle with closed schools.
  • Access or visitation plans may have to be changed.
  • Do parents have the requisite documents if they were to become ill or incapacitated?
  • Do parents’ current documents accurately reflect their wishes?
  • Do estate documents still appoint the appropriate people to make choices on an individual’s behalf?
  • Are divorcing or divorced couples’ wills in concert regarding guardianship of the children?
  • Child support payments may be suspended, reduced or deferred.
  • Spousal support payments may be suspended, reduced or deferred.
  • When, if ever, will payments resume, or will they be forgiven?
  • Will these payments be made up in the future?
  • What is the period of adjustment?
  • How to make up lost time spent with the child/children.
  • How are other child-related expenses to be handled?
  • Do current documents reflect changes to family structure?
  • Are trusts being established for children and grandchildren?
  • Will a newly crafted agreement be formalized or acted upon in good faith?

When appropriate, it is prudent to use mediation to work together through these trying times, as the costs and uncertainty associated with court proceedings may be higher than that of mediation. Effective communications between parties can lead to a mediated conclusion that is beneficial to all involved.

Joann Feld is an attorney specializing in law and mediation in Dix Hills, N.Y. and is an active member of the New York State Council on Divorce Mediation.

 

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