The impact of COVID-19: Family law

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The novel coronavirus was declared a worldwide pandemic on March 11. Since then restaurants have closed, schools have shut down and millions of Americans are now working from home, if they’re lucky enough to be working at all.

Work has anything but slowed down for Vienna family law attorney Kathryn Dickerson. Clients have been calling nonstop the past month with questions about topics ranging from child support payments to how to proceed with a separation when Virginians have been urged not to leave their homes.

“Parents are asking how they’re supposed to make [child support] payments if they’ve been furloughed, or who will cover health insurance if they’ve been laid off,” Dickerson said. “Then there’s custody issues, because even in the best of times, parents disagree.”

Gov. Ralph Northam issued a statewide stay-at-home order on March 30 that directs all Virginians to stay home except in extremely limited circumstances.

“Our message to Virginians is clear: Stay home,” Northam said. “Do not go out unless you need to go out. This is very different from wanting to go out.”

The order, which continues through June 10, allows Virginians to leave their residences under limited circumstances, including traveling to and from work, obtaining groceries, seeking medical attention and “traveling required by court order or to facilitate child custody, visitation or child care.”

It seems, then, that custodial arrangements should continue as normal – unless you’re taking social distancing into account. Under recommendations by the state and federal governments, people should stay at least six feet apart, only leave their homes when necessary and avoid travel at all costs.

So what do you do if you live in Richmond and, per custody agreements, you must drive a child to Charlottesville to spend a weekend with another parent?

“I’ve had clients reach out to me because they’re concerned that the other parent will not commit to following social distancing recommendations. How do you leave and meet with each other when you’re not supposed to?” said state senator and Fairfax attorney Scott Surovell.

Dickerson said many clients have called in with concerns that their child may be immunocompromised by spending time with another parent, but are fearful of breaking custodial and visitation orders.

“What if a client is steadfast in their belief that the minor children are at danger if the order is followed? Is a contempt finding automatic when the courts reopen? It depends,” said Manassass attorney Claire Salitsky. “There are some ways to mitigate the chances of a willful contempt finding if there is a valid concern.”

Salitsky recommends parents who are concerned about the health of their child should begin open lines of communication between their attorney and the other parent to demonstrate that a client’s withholding was not without justification or for a base purpose.

“If a client does believe withholding custodial time/visitation is in that child’s best interest for health reasons, that client should ensure that they have a plan for makeup time with the other parent,” Salitsky said, noting that extra telephone and FaceTime calls may be necessary during this time.

Social distancing also creates issues for divorce and separation cases. In Virginia, a no-fault divorce requires spouses to be separated for six months to a year, depending on if they have minor children or not. If the couple is separated but living together, they are required to have a witness confirm they are staying as separated as possible.

This evidence is difficult to obtain in a time where people have been mandated to stay home.

“This is where we’re trying to get clever,” Dickerson said. “We’re trying to use FaceTime… We’re trying to use family members who can say they’re close enough to a couple that if [the couple] had reconciled, they would know about it.”

But as crucial as video conferencing tools have become for attorneys, in an area of law that can require secrecy and discretion, even apps like Zoom can be unreliable.

“For initial consultations, we’ll have couples or just one person come in privately. It’s hard to have a private conversation when you’re in the home with your spouse,” Dickerson said. “They’re going to notice if you get into your car and spend an hour on the phone.”

Spouses seeking a divorce must be separated for at least a year if there is fault, which includes abandonment, cruelty or adultery – the last of which has become a major issue for many of Dickerson’s clients since the coronavirus outbreak.

“While we’re supposed to maintain social distancing, people are not necessarily doing so… And are still meeting up with their romantic partner,” Dickerson said. “[Infidelity] is hard to hide right now.”

Dickerson said the most difficult part of the limitations that COVID-19 has placed on family law is that she is unable to advise clients on things they would “normally do, but can’t” in these situations, such as stay with a family or friend and get tested for sexually transmitted diseases.

She said the best advice she can give is to stay calm and “avoid physical violence.”

“Domestic violence is escalating, and the ability of people to escape or find help or go to shelters is limited,” Dickerson said. “We remind people to avoid any behavior that would result in a protective order being placed against you, because you will not find a place to stay right now.”

Phone calls to emergency hotlines for domestic violence increased by 76% in March, according to the Virginia Sexual Domestic Violence Action Alliance. The group compiles data on shelter services for 65 facilities and said that about 1,000 people sought overnight shelter from domestic violence last month alone.

Surovell said this spike in domestic violence is a result of couples being forced to stay at home.

“I’ve had at least one protective order come through since this happened,” Surovell said. “[Social distancing] has people on edge.”

Adultery, violence and modified separation agreements are just a handful of the immediate impacts COVID-19 has made on family law. According to Surovell, the family law community will feel the effects of the coronavirus for months, if not years, to come.

“In a few months we’re going to start seeing disputes regard child support and alimony modifications due to job losses and reduced incomes,” he said.

Dickerson said that dividing assets between divorcing couples will only become more complicated.

“Trying to come to an agreement on the values of retirement accounts, investment accounts are all over the map. The share of who gets what varies by the day, sometimes the hour,” she said.

Dickerson also anticipates a hefty backlog on cases when the courts reopen and more filings for divorce that are yet to come.

As Surovell said, when it comes to the coronavirus’ impact on law, “This is only the beginning.”