Is it possible to start and complete a divorce during social distancing and “shelter in place?” orders?
Short answer is, yes. 100% of a mediated, collaborative, or uncontested “kitchen table” divorce can be done remotely through phone, email, and video conferencing. Our office has been utilizing Zoom video conference as a resource for almost a decade for families where one or both participants are in a remote location (Costa Rica jungle coffee shop divorce for example!). Several years ago, I participated (along with several other BridgesDivorce.com practitioners) in an intensive six week training held by a company called Wevorce where the platform was designed to have multiple neutral professionals (financial, legal, and mental health/ parenting) working with the families remotely via video conference throughout the entire case. Through these trainings and subsequent successful virtual co-mediations, we’ve been able to help families who could not participate in person. Virtual co-mediation or collaboration will be especially helpful with our current social distancing requirements.
Fortunately, the court is still “open” for processing and approving legal documents including divorce and family related. This is all done through electronic filing straight to a judge’s computer for signing after initial clerk’s approval. Document signings by clients, court filing, and parenting classes can also be done remotely, but it will likely be difficult for families to navigate the technical hurdles and obtain court approval without help of a mediator or collaborative attorney. For remote signings by clients, it is helpful to have a printer and scanner, or we can use regular USPS mail if needed.
Families in higher conflict situations, however, needing the court’s assistance with hearings, temporary orders, or trial, will unfortunately face delays or logistical challenges until the courts are able to be functional remotely. As of this writing, the courts are closed for all but emergency or restraining order hearings. In the near future for litigation, all participants (attorneys, experts, judges, clients) will likely need to appear by video or phone conference until it’s deemed safe to physically appear in court for a hearing or trial. There are many questions remaining on evidence procedure, exhibits, testimony, and custody evaluations (in person contact usually required). My recommendation for higher conflict families is for clients to obtain legal advice and encourage your attorney to utilize virtual “attorney assisted” mediation or arbitration if needed. There are built in features to web conferencing software for “private meeting rooms” for attorney and client during a collaborative session so it can be productive and still have capability for caucusing or 1:1 discussion during mediation.
What is required for virtual mediation or collaboration to take place?
The only requirements are for each participant to have a smart phone OR computer with internet service and audio (built in speaker or external speakers) and web cam. Most newer computers have built in web cams, or use your smart phone if your computer is not equipped with a web cam. A quiet, private space is also helpful whether it’s a room in your home or vehicle safely parked. Having a pen and paper nearby is also helpful to take notes, but not required as meetings can be recorded for later playback.
Should we hold off on pursuing a separation or divorce because of COVID-19?
This is a very tough question and deserves much thought and consideration for each family and the multitude of potential impacts on moving forward versus maintaining the family “status quo.” Sometimes, prolonging separation can be even more difficult for families if there isn’t a roadmap or plan in place to move forward toward goals, disentanglement, and healing. However, it’s even more important in these uncertain times that all are mindful of health and safety for the whole family. I recommend families consider talking to a marriage counselor, parenting coach, trusted pastor, or therapist to help navigate the difficult emotional dynamics as well as timing and logistics of any possible changes or decisions impacting the family unit. It can also be helpful to talk through the potential legal topics with a mediator or collaborative attorney in a “planning session” for peace of mind as well as helping to get organized for future decision making.
One option during this stressful, difficult time is to come up with temporary agreements and a family plan to address each person’s needs with ability to modify as changes take place. We can help prepare mediated settlement agreements to track agreements and add accountability if this is a concern. A mediated settlement agreement is a private contract between parties and not filed with the court, except for enforcement or issue of attorney fees if litigation is necessary. We can also “pause” the process at any point and track progress with partial mediated settlement agreements.
One substantial impact of COVID-19 is the recent stock market volatility, and many clients are concerned with proceeding with a divorce with division of retirement or investment assets. One clarification to ease concerns is that divorce related retirement divisions and transfers (if done properly – please consult an attorney) do not liquidate or sell underlying investments or stock. Instead, an agreed upon percentage (50% for example) of the account is separated into the other spouse’s account via Qualified Domestic Relations Order (QDRO) or IRA transfer after divorce judgment is signed by the court. Often this segregated portion is rolled into a new or existing IRA, or there are exceptions allowing penalty free withdrawal under certain circumstances. This is a complex area with tax ramifications and requiring specific legal documents, please use caution and consult a divorce professional to learn more about options. There are ways to have early cash disbursements without penalty after divorce, and it’s likely more of these distributions will be needed as COVID-19’s financial impacts worsen for some families.
Do we still have to take required parenting classes in person to get court approval?
Answers to this question vary by county and information is changing daily. Washington County, for example, has canceled their April classes, but is reaching out to currently enrolled families for possible in person May classes. Some counties already offer an online option post-Covid-19, such as Multnomah County, and we may be able to obtain approval on a case by case basis from judges based on individual circumstances for online parenting classes to satisfy court requirements.
What should I do if I need to modify my divorce or separation judgment that’s already signed by the court?
In Oregon, most spousal support orders are modifiable by statute unless specifically stated in your judgment as “non-modifiable.” Child support is also modifiable if it’s a current order (not past due arrears). It is imperative to seek legal advice if you believe substantial changes have occurred such as a job loss, health status change, income change, parenting plan change, childcare cost change, health insurance availability, etc. As orders cannot be changed retroactively (unless mutually agreed in writing and signed by the court), it’s crucial that anyone impacted by a change requests modification as soon as information is received. Most courts require an attempt at mediation first before having a court hearing, and sometimes this provision is built into a divorce judgment requiring mediation. It is also important to preserve your rights on timing of the changed support obligation in the event mediation is not successful, so please consult an attorney for legal advice as soon as feasible.
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Tonya Alexander
Collaborative Attorney & Mediator
Alexander Law, PC
1925 NE Stucki Ave Ste 410
Hillsboro, OR 97006
503-531-9109
We are in this together and here to help.
