What to expect in divorce, custody proceedings — and how COVID-19 has changed things

BY VINCENT HARRIS

Divorces and custody hearings are emotional, life-changing events, no matter how amicable they might be. Which is why the family law attorneys who handle them have to be part-lawyer, part-therapist. In fact, there’s even a running joke about it in the legal community.

“You’ve heard the old expression, ‘attorney and counselor-at-law,’” offers M. Malissa Burnette, a partner at Columbia’s Burnette Shutt & McDaniel, PA. “That’s the ‘counselor’ part. No attorney I know would claim to be a therapist, and sometimes clients seem to want us to be therapists, but we’re not stone. We know what some of them are going through.”

But that doesn’t mean that an attorney can allow themselves to share their clients’ emotions. Burnette says the best way to serve clients during a divorce or custody hearing is to be objective on behalf of that client.

“People who are so stressed out aren’t able to think as objectively,” she notes. “The lawyer ought to be thinking objectively for them. Sometimes that will head off conflict; that’s what I always hope anyway. If someone is too upset and hurt, that’s where the lawyer has to step in and say, ‘Wait a minute, that is not going to help you.”

Any sort of legal process will take patience, something that Jessica Kinard of Jessica E. Kinard Attorney at Law, LLC says she emphasizes with her clients.

“There’s a whole lot of patience required to take the high road and get the results you want,” Kinard says. “Yes, it’s going to be rough, but you’ve got to stick through it. Patience is really hard, especially in the early stages. There’s a lot of rush, a lot of work, a lot of getting things done really quickly. Once you get through that, I think you can sit back and relax and say, ‘OK, this is really happening, and I need to settle into this new reality.’ So, as a lawyer, there’s a lot of being patient with clients, knowing that emotions and tensions are high, and knowing that they’re coming to you having already thrown everything they have at the situation: all their time and heart and money, usually. “

But the COVID-19 pandemic has prompted some changes in how family law is practiced. Burnette and Kinard say that they’ve had to adjust the way they do their jobs, with a new layer of separation between clients that might help mitigate some of those potentially harmful emotions.

“In-person hearings are the exception, not the rule now,” Burnette offers. “A lot of them are virtual hearings. I’ve been practicing for

almost 43 years, and this is the first time I can ever send in affidavits and financial declarations without going to an appearance. That’s astounding to me.”

“If there’s a divorce where you have an agreement on everything, people will sometimes never have to set foot in a courthouse with the COVID protocols,” Kinard says. “We can submit the agreements, proposed orders and affidavits in lieu of all the questioning that would take place at a final hearing, and you get a signed order back in the mail that says, “You’re divorced.”

Burnette reasons that doing more things virtually actually has its advantages in terms of family law.

“I kind of hope they’ll keep that in place,” she says. “It’s less expensive in terms of waiting time, court time, and preparing people for testimony. There’s more paperwork to do, because affidavits have to be submitted in lieu of testimony, but still I think overall that’s going to be less stressful. A lot of people are very anxious about appearing in court, it’s unfamiliar to them and scary, even if they have an agreement. I think it’s taken some of the bite out of it.”

Kinard sees the changes a bit differently.

“How things differ from traditional practice depends on the case,” she contends. “Hearings that are very evidence-heavy can be very difficult. On the other side of things, it can be really helpful for people whose situations aren’t that complicated. There’s good and bad. It depends on the people and the issues.”

Regardless of whether the proceedings are conducted in person or not, both Burnette and Kinard say that one-on-one communication is vital in any attorney-client relationship, from the first consult onward.

“Be prepared for a long conversation,” Kinard shares. “There are going to be nitty gritty questions like your name and date of birth, and there are going to be bigger questions, like what happened, what do you want out of this divorce, what kind of realistic goals can we set, and, above all, how can I help you? You need the truth, the whole truth and nothing but truth.”

“I need to know everything from you so that I don’t find it out from somebody else,” Burnette says, “and then I can guide you and protect you the best that I can. The client should want to have an honest relationship with a lawyer and be willing to, within the parameters of attorneyclient privilege, reveal the good, the bad and the ugly.”