Six Weeks in With an End (Maybe) In Sight - Developing Trends in Family Law Practice

Now that we are six weeks or so into this quarantine, there is no question that as the days blend from one to the next we have figured out our own ways to break up the monotony and get through this. As many video calls with friends and family as possible (oftentimes with drinks in hand), exercising in and around our homes, enjoying the time with our kids while also wondering why can’t they leave us alone, watching way too much news and press conferences about all of this, posting online about all of the above so that we have some sort of human connection with the vast social media universe, and more.

As family lawyers, we are constantly sent articles and memes joking about/seriously discussing how divorces will skyrocket once this is all behind us. While that may be true, there is no doubt that certain patterns and trends have emerged in our practice that provide some useful guidance to litigants who are looking for answers to get through to the light at the end of the Covid-19 tunnel. I’m not going to refer to what we are going through as an “extraordinary and unprecedented new normal” because after hearing that type of phrase countless times over the past several weeks it is time to start looking forward to what comes next as we head into the Summer months.

With that being said, here are a few of those trends to consider whether you are a litigant, attorney or an interested reader.

Custody and Parenting Time Disputes – While every case will rise and fall on its own particular facts and circumstances, it seems that judges are more often inclined to enforce existing custody and parenting time orders/agreements when one parent seeks to modify the other parent’s time with the children due to the ongoing pandemic. If the subject parent is a nurse, doctor, EMT or otherwise potentially exposed to those with the virus, courts seem to be doing what is necessary to balance the best interests of the children while also ensuring that parenting time is not indefinitely altered. It is unknown how long this is going to last, so parents are still encouraged to do what is necessary to resolve these issues without engaging in self-help.

Support Disputes – Whether occurring during or after a divorce, many payors are suddenly unable to pay support to the other party. Job losses, income reductions and more are impacting many of our cases. Judges, practitioners and litigants are faced with having to address these situations now to the extent possible. Many people are hesitant to put a band-aid on the situation only to have to again address the issue when the financial situation potentially returns to what it was before. On the other hand, if that prior financial situation does not return then at what point does the argument inevitably become about whether the payor did enough to address the situation. While there is much talk about divorce rates rising once this is behind us, as in 2008-09 it will likely be an increase in post-divorce support modifications that generates the most attention. As always, settlement is still the best course of action if possible.

Trial Courts and Technology – With each passing week it seems courts and trial judges (along with the rest of us) are becoming more accustomed to and comfortable with video technology. Not only are status conferences being held, but also settlement conferences and trials temporarily. I have even seen certain judges using a virtual background of the courtroom during video conferences to provide a sense of formality to the proceedings (while I am typically wearing sweatpants with my suit jacket and tie). Early Settlement Panels are also set to resume on a remote basis. Family law litigants may now file paperwork with the court electronically. Thus, while there were many concerns when the quarantine commenced about how cases could move forward, it appears major steps are being taken to let parties know that they can still proceed with their divorce or post-divorce matters.

Mediation Efficiency – I have also found the mediation process through video conferencing to be far more efficient than I originally anticipated. Mediators have quickly adapted to the technology, managing to effectively conduct sessions and calm the nerves of parties who may have had great reservations about doing something other than meeting in person. Whether because of their respective financial situations, our existing environment or something else, it also appears (depending on the case, of course) that litigants appear more focused on reaching a resolution. While eventually many of the changes we have experienced in our practice will likely fade away, video mediation should be here to stay for the right case and the right situation.

These trends and more will continue to evolve as we move through this time period towards its inevitable conclusion. As always, we adapt to the changes around us no matter how severe or consequential to ensure that litigants are best served both during and beyond this “extraordinary and unprecedented new normal.”

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