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PANDEMIC DIVORCE FAMILY LAW IN THE TIME OF COVID
As the pandemic continues, divorce rates are reportedly rising as couples deal with fallout from health crises, lockdowns, job losses, e-learning, financial stress and more. Three local attorneys shared their current insights with Crain’s Content Studio, including how the crisis is redefining the practice of marital and family law.
Jonathan Merel: People want to know how the divorce process works in these unprecedented times. The COVID-19 pandemic has led to drastic changes in how divorces and other domestic relations matters are proceeding. The days of litigating in open court are gone, for now at least, and all matters, contested or uncontested, are proceeding remotely. Molshree “Molly” A. Sharma: Job insecurity is a major concern. If a spouse believes they may be losing their job, they’re more hesitant to commit to spousal support. Similarly, a spouse who previously would have agreed to a buyout or lump sum maintenance may be less likely to do so in the current environment because the amount of support may be based on an amount lower than the historical income, at least temporarily. If a spouse is carrying insurance for the entire family and is laid off, it creates issues. Other concerns include parenting time and travel, including for those whose children have been wrongfully taken by a parent to another country. Quarantine regulations have prohibited left-behind parents from visitations with their children.
and the issues they might face. There’s also been an increase in filings. The unprecedented combination of health and financial uncertainty is taking a toll on family dynamics and relationships. This uncertainty, anxiety and fear are driving some people to question where they are and who they’re with in their lives. This, in turn, fuels the increase in consultations and eventually, in many instances, the filings. Sharma: While initial filings are greater, so are post-decree filings because parents are dealing with unique challenges, and their financials may have been greatly affected. There’s a lot of stress in homes. Children are at home and having their own e-learning challenges. Many parents are working remotely while simultaneously taking care of their children. The increase in alcohol consumption has added to issues of domestic violence and depression. Merel: Whether it be new divorce filings, issues involving domestic violence or post-decree modifications of custody or support, the pandemic has caused an increase in domestic relations activity. It’s caused many families to spend most of their time inside the home in what some might view as a “pressure cooker.” Without the space that work and school provides for couples and families on a daily basis, and given the financial strain that many
“ . . . THERE’S A LACK OF TOLERANCE IN THE COURT SYSTEM FOR PARENTS USING THE PANDEMIC TO TRY TO DENY ACCESS BETWEEN A CHILD AND THE OTHER PARENT.” — TIMOTHY M. DAW, SCHILLER DUCANTO & FLECK LLP Timothy M. Daw: People are trying to deal with great financial and emotional uncertainty, much like what we saw in 2008 and 2009. Costs of a divorce are of concern, as is the time the matter will be pending; in other words, how long their lives will remain in upheaval. People contemplating divorce are searching for a sense of control over the process during this period of great uncertainty. Ultimately the clients are asking about and seeking alternatives to limit the emotional and financial costs to the family.
families may be experiencing from the pandemic, the potential for tension in the home has increased, leading to breakdowns in the family unit. What’s the biggest change in how the court system is currently handling divorces and related matters?
Has the pandemic affected the number of divorce filings you’re seeing?
Merel: Instead of the traditional courtroom setting, judges now have virtual courtrooms which are accessed with a Zoom meeting ID and password. While many lawyers and judges view these changes as a breath of fresh air, many attorneys will always prefer the formal courtroom setting.
Daw: There’s been a significant increase in people consulting with us to gather information about the process
Daw: Early in the pandemic, the court system was largely paralyzed. As a result, the remote/virtual court system
TIMOTHY M. DAW
Senior Partner Schiller DuCanto & Fleck LLP tdaw@sdflaw.com 630-784-7412
took hold. The virtual system works well with routine court appearances and well-defined non-complex issues. It doesn’t work well for the more complicated family law cases that require litigation and substantial evidentiary hearings. It’s anticipated that at some point in the not-so-distant future a combination of in-person and
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What’s the most common question or concern you’re hearing from clients who are currently contemplating a divorce?
JONATHAN MEREL
Founder, Managing Principal Law Offices of Jonathan Merel PC jmerel@merelfamilylaw.com 312-408-7000
virtual proceedings dictated by the issues in the case will be the new norm. Many of us believe the virtual system will continue to increase, even postpandemic, to take pressure off of the court system, which was overwhelmed even before COVID. We hope this will allow more time for those cases that need the system’s help for resolution.
Partner Feinberg Sharma PC molly@fsfamlaw.com 312-236-7085
Sharma: By attending status meetings online, lawyers save time and larger bills since they don’t have to travel to court, or wait there once they arrive. Between an uptick in domestic violence and child-related issues, court dockets are overwhelmed by COVID-related emergencies. DuPage County is doing some in-person hearings but at the
The Future of Family Law Since 1981.
The best advice I can give to clients is to take a deep breath at first. Then, let’s look at the case strategically and plan how to get from point A to point B.
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Timothy Daw | Senior Partner tdaw@sdflaw.com | 630.784.7412 sdflaw.com
MOLSHREE “MOLLY” A. SHARMA
PANDEMIC DIVORCE
FAMILY LAW IN THE TIME OF COVID same time it’s difficult to do safely and it increases the risk of exposure. Federal court completed an in-person Hague child abduction case, but it was substantially delayed.
whether a matter is heard electronically or in person. Communication, with certain exceptions, between an attorney and client remains absolutely privileged and can only be waived by the client.
What impact has video conferencing had on the process, including the issue of attorney-client privilege?
Sharma: Clients and lawyers have to work harder to communicate effectively. It’s also difficult to build rapport with a judge. A further challenge is if a client needs an interpreter. I had a hearing that lasted several days because we needed to find an interpreter and add him to the Zoom attendees. There are challenges with connectivity and time delays. It’s difficult to maintain privilege and also communicate with the client. Even though the host can put a client and lawyer in a breakout room, the host could join at any time. And while there’s a chat feature, the host may have access to these chat messages. Inadvertent errors can occur where a person clicks on a wrong button and ends up sending a message for an unintended recipient.
Daw: While simple technology issues can derail virtual court appearances, had the court system not adopted these technologies, the process would have ground to a halt and stayed grounded. Given health considerations, the current virtual system is a necessary—but not ideal—tool to move cases forward, provided the clients and attorneys are motivated to reach conclusions. These remote proceedings require additional preparation and planning. Unfortunately, some individuals take these proceedings less seriously. Having a witness sworn in person before a judge is a better option when it’s possible to do so. As to attorney-client privilege, the rules have not changed
Are there other ways the pandemic has impacted how you operate your practice?
“A PERSON WITH A SUPPORT OBLIGATION MUST IMMEDIATELY FILE A PETITION TO MODIFY OR ABATE SUPPORT BASED ON A SIGNIFICANT DECREASE IN INCOME.” —MOLSHREE “MOLLY” A. SHARMA, FEINBERG SHARMA PC
Daw: We have an obligation to not only safeguard our clients’ interests, but also the interests of the people who work with us, as well as our families and ourselves. We’ve had the ability to work remotely for some time, but not on the scale experienced earlier this year. An even greater level of communication has evolved in multiple formats with clients that we currently don’t regularly see in person. Video communications— instead of phone, emails and/or text communications—has been very helpful for some clients who respond better to a more personal visual and auditory communication format. Overall, the pandemic has made our lawyers work differently, and in many instances, harder to achieve results for our clients. Sharma: I have fewer in-person meetings, and have several clients I’ve never met in person. At Feinberg Sharma, we’re all working at our office most days. We take temperatures every morning; anyone feeling sick must go home. We wear masks and wipe down common surfaces. We believe there’s value for our clients when we can consult with each other and have resources on site. Our conference rooms have large-screen televisions for Zoom meetings and court. We’ve spent considerable funds to be COVIDready, including a stellar internet connection and air purifiers. We believe information is key, so our lawyers are
busy writing articles about practicing law during the pandemic. Merel: While our offices were vacant for several months at the outset of the pandemic as everyone worked from home, we’re now back in the office every day, practicing social distancing of course, and adapting to the new practice of law. The days of running around the courthouse every morning are gone, for now at least, and our attorneys can be in multiple Zoom courtrooms across multiple counties with the click of a button. The new era of “Zoom court” seems to be a wellreceived change among lawyers and judges across Chicagoland, as the hustle and bustle of crowded courtrooms and travel to and from court feels like a distant memory. Most judges I’ve spoken with seem to agree that the new system has been an enlightenment of sorts for the legal community, and the changes we’ve all made in the wake of COVID-19 are likely to remain in some form, even after the pandemic. How has COVID affected parenting issues such as visitation, childcare, holidays and travel? Sharma: During the lockdown, parents had to adapt and ultimately agree or have court guidance on the most routine issues, such as childcare providers, tutors, social gatherings and in-person work attendance. As some restrictions have eased, parents are frequently in disagreement over travel. For example, a client had planned a trip to Mexico with his daughters, but the daughters’ mother opposed it. The father presented statistics to bolster his case and at the same time pointed out that the mother had already taken the children to Texas for a visit. Parents of children abroad have little chance of seeing their children in person, making it attractive for parental abduction. Other challenges include disputes over supervision around screen time and e-learning. Daw: Judges want to make sure the parent-child relationship is protected and the safety of the child preserved, especially in these uncertain times. Having a parent drive instead of fly to see their child, expanding visitation times but with less frequency combined with more face time, video conferences and calls have been used by parents separated by great distances from their children. My experience with these issues has demonstrated that there’s a lack of tolerance in the court system for parents using the pandemic to try to deny access between a child and the other parent. At the same time, the court system is also having issues with parents who lack the proper appreciation for the seriousness of the current crisis by placing their families at additional risk. Merel: While the COVID-19 outbreak has caused many divorced couples to come together to make appropriate and well-reasoned decisions about the well-being of their children during
this difficult time, these circumstances have brought differing viewpoints on the virus to the forefront and children are often unfortunately caught in the middle. Whether it be issues related to travel with the children, interactions with friends, modification of parenting time due to exposure, involvement in activities or even exposure to parents and other family members, the COVID-19 pandemic has been a hot topic for parents in the midst of a divorce, or in life after divorce. If an individual with a support obligation—child or spousal— has experienced a drop in their income as a result of COVID-19, what steps can that person take to modify their support obligation? Sharma: A person with a support obligation must immediately file a petition to modify or abate support based on a significant decrease in income. There may also be a new calculation if the recipient’s income has gone down, since child support is based on both incomes and maintenance may have been calculated based on two incomes. Retroactivity only begins from the date of filing. Merel: Under Illinois law, both child support and spousal support obligations are generally modifiable upon a showing a “substantial change in circumstances.” The payor seeking the modification will typically be required to substantiate the decrease in income with financial documentation, including pay stubs, tax returns, bank statements and any other relevant evidence. In the absence of an agreement reached outside of court between the parties, a judge will ultimately rule on the request for the modification of support after a hearing. Daw: If there’s been a substantial change in circumstances and a motion is not filed, the person obligated to pay the support will need to continue regardless of the change. No one, especially the judge, knows how long the economic uncertainty will last or what the economy will look like down the road. It’s essential to have documentation of the change as well as any support for how long the change may persist. If the change is believed to be only temporary, in addition to filing something, it may make sense to work with the other person to arrive at a short-term solution and revisit the support issue in the future. However, any agreed-upon modification needs be in a court order—or incorporated by reference into an order—and approved by the court. How has the pandemic impacted business valuations, as they relate to divorce settlements? Merel: Though business valuations are proceeding and are usually necessary to resolve a dissolution of marriage involving a business owner, determining
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the value of a business in the midst of a global pandemic is difficult. Considering the value of a business interest is often one of an individual’s most valuable assets; this often becomes a highly contested issue in divorce cases. Daw: Greater economic uncertainty for a business or business environment tends to result in more conservative, lower values. Uncertainty as to whether prior earnings will continue or what the prospects are for future earnings creates greater risk. Greater risk negatively effects value. Because of income and performance uncertainties, some valuation professionals are being more conservative or opting to use an asset
person is entitled to safety and it’s still possible to get an order of protection and have the other spouse removed from the premises. Daw: For those who chose to file for dissolution of marriage at this time, avoid litigation if possible. Many cases can be settled with good attorneys on each side, the sharing of the necessary information and the willingness of the parties to compromise and reach agreements. For issues that can’t be settled this way, I advise clients to consider an alternative dispute resolution process. It requires a high degree of information sharing, a level of trust between the parties, and attorneys
“WHILE DIVORCE IS NOT THE BEST OPTION FOR EVERYONE, IT CAN BE A PATHWAY TO PEACE FOR A FAMILY IN TURMOIL.”
ABOUT THE PANELISTS TIMOTHY M. DAW is a senior partner at Schiller DuCanto & Fleck LLP, a family law firm with offices in Chicago, Lake Forest and Wheaton. He has more than 35 years of experience litigating and negotiating complex family law cases, and has been recognized by his peers and the community for his trial and litigation skills. He has been listed among the Best Lawyers in America by Neifeh and Smith, is an Illinois Super Lawyer and a member of the Leading Lawyers Network.
JONATHAN MEREL is the founder and managing principal of the Law Offices of Jonathan Merel PC, a family law firm with offices in Chicago, Highland Park and Skokie. His experience encompasses all aspects of family law, including high-net-worth and complex divorces, child custody, support, paternity, orders of protection, prenuptial and postnuptial agreements, and post-dissolution enforcement cases. He has achieved favorable outcomes in high-conflict divorce cases, contested child custody suits and disputes involving multimillion-dollar marital estates.
— JONATHAN MEREL, LAW OFFICES OF JONATHAN MEREL PC approach—generally, the lowest form of value. While certain businesses are doing very well despite or because of the pandemic, even in these instances, value can be negatively affected because the current successes of the business may not be replicated going forward. Sharma: One of our clients owns an office supply business that’s faced a substantial decrease in sales since people aren’t in offices. On the other hand, bankruptcy lawyers and residential real estate brokers are reporting large increases in work. Because of the current environment, the sale of a business may no longer be on the table. The parties may need to agree to wait a certain number of years to value it, or just sit it out. What advice do you have for someone considering a divorce at this time? Merel: The decision to proceed with a divorce is a very personal choice that must be made by every person on their own terms. As the COVID-19 pandemic has caused financial strain on many families, it’s also caused emotional harm to families, leading many to consider divorce during these unprecedented times. The pressure of these circumstances often leads those suffering to contemplate divorce in the hopes of healing their families. While divorce is not the best option for everyone, it can be a pathway to peace for a family in turmoil. Sharma: Think it through thoroughly, possibly with a counselor, to determine if the marriage is really over or just under a lot of strain from the current pandemic. Know that the divorce process may take longer than expected. Watch household financials closely and be cognizant of changes in asset values or spending. If possible, consider mediation which, when successful, can reduce costs significantly. Finally, if a spouse is an alcoholic or abusive, know that even during the pandemic each
willing and able to facilitate the process. The emphasis in these scenarios is to try to avoid the uncertainty, time and expenses inherent in litigation, especially in the current environment. What options are available to those who want to proceed with a divorce, but prefer not to litigate, and have those options changed since the pandemic began? Daw: The options have not changed dramatically. A starting place is to hire attorneys who will work with their respective clients and with each other to define and wherever possible resolve as many issues as possible. If issues remain, some form of alternative dispute resolution such as mediation or collaboration may make sense. In these situations, especially for more complicated cases, attorneys should participate and provide guidance to the client. Attorneys bring value based on their experience with complex issues and the ability to spot issues that aren’t being addressed. The decisions to be made are some of the most important in people’s lives—they need as much support and guidance as possible. Merel: Regardless of the complexity, attorney-assisted mediation is a highly successful and cost-effective approach to resolving most cases. Couples who are committed to addressing their issues outside of court—with knowledgeable attorneys and an experienced mediator—usually enjoy success that benefits them emotionally and financially. Sharma: People who wish to avoid litigation can divorce through the collaborative or cooperative process. This is where each person has a lawyer, coach or coaches, and child and financial experts as needed. The process is intended for people to move away from positions and work together to consciously resolve issues.
MOLSHREE “MOLLY” A. SHARMA is a partner at Feinberg Sharma PC, a family law firm with offices in Chicago, Northbrook and Arlington Heights. She has extensive experience handling complex financial issues such as business valuations and income analysis, representing professionals as well as homemakers. Her expertise includes international custody disputes and Hague convention cases. She is a fourtime recipient of both the Illinois Super Lawyer Rising Star and the Leading Lawyers Emerging Lawyer awards. She has appeared twice on Crain’s Notable Women in Law and Notable Minority Lawyers lists.
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