The big split
Divorce under lockdown
I had mom friends who were going through acrimonious, confounding divorces back when “coronavirus” was just a twinkle in our eyes. Some of these circumstances have dragged on and gotten more stressful through the ensuing lockdown. I also know people who have initiated divorce—or had divorce initiated upon them—since lockdown began. And I know people who are thinking a lot harder about divorce nowadays than they were earlier in 2020.
So for today’s issue, I posed some scenarios to Kelly Frawley and Emily Pollock, partners at the New York firm Kasowitz Benson Torres LLP where they practice matrimonial and family law, to learn what they advise divorcing, divorced, or contemplating-divorce women in the age of COVID-19. Please keep in mind that family law varies from state to state so you should get your own legal advice if divorce is part of your life right now:
My husband may be having an affair, which would mean he's violating social distancing. He has also shown that he doesn't really care about social-distancing or masking, since he took my kids on a hike with his sister and her kids without those practices in place. Is there any way I can enforce this?
KF: Yes, but let’s first take a look at the practices in place in your home. Are you social-distancing and wearing a face covering including times when the children are not with you? Are you making sure the children take steps to socially distance? If the answer is yes, then you should start by explaining to your co-parent that it is important the both of you have consistent approaches with the children when it relates to the pandemic rules and guidelines issued by your state and local governments during these unprecedented times. This will enable the children to develop habits that they will use when we return to a “new normal” and will serve to protect their health and their communities. In doing so, be sure not to make it about a potential affair because he might become defensive which will distract from your concerns and it might call into question your actual intention – is it to protect your children’s safety or keep you co-parent away from their paramour.
If he continues to ignore your concerns, then consider speaking with a family law attorney about seeking a temporary court order to change the parenting schedule to modify his in-person parenting time if he does not adhere to the state and local rules and guidelines.
My ex doesn’t do any of the homeschool lesson plans he’s supposed to when he has the kids, only “recess,” basically. What if anything can I do to get him to hold up his end of homeschooling?
EP: The first issue is whether there is disagreement as to whether homeschooling is necessary. Some parents are boycotting homeschooling, or deeming participation optional, particularly for young children, given the additional stressors that can be added to the family trying to manage what can be onerous and/or frivolous assignments that may not have any impact on the children’s ability to progress to the next grade level in September. If the issue is that you and your ex disagree as to whether homeschooling needs to be done at all and you are unable to resolve the dispute, it may be necessary to seek the help of a parenting coordinator or other neutral intermediary (if you have established such a procedure for making decisions together) and, if that is not possible or productive, it may require seeking a court determination that homeschooling is what is in the children’s best interest.
If, however, your ex agrees to homeschooling in theory but is falling short in practice, you may want to propose that if he is unable to provide a better study environment during his time, then you will seek to modify your parenting schedule to give him less time during the “school day.” Perhaps the threat of losing some parenting time will be enough to get your ex to step up his teacher game, and depending on the extent of your ex’s home schooling negligence, you could have a strong application for such a modification. Before taking such action, however, it may be helpful to have a non-accusatory discussion with your ex, and your children if they are old enough, about how to manage the daily and weekly school work load to ensure that the children are taking control of their own studies as much as possible and that you and your ex have established a consistent approach likely to set you both up for schooling success during your parenting time: review the classroom software the schools are using, including how to manage completing and turning in assignments, prepare a calendar of the children’s scheduled zoom sessions and due dates for long-term projects, and establish a rough schedule for each school day that you’ll all use in both houses. It is a very stressful and difficult time for both parents and kids right now, and if part of your ex’s issue is that he is feeling overwhelmed, a collaborative approach like this is more likely to get you the result you seek. To the extent that you can work together to resolve these kinds of issues, the easier it will be to tackle the next co-parenting issue that arises.
Say you’re in the middle of a (slightly) contentious divorce and you live in PA and want to discreetly visit a lover a few states away... using all necessary precautions. If my ex finds out can he use it against me regarding custody or as some kind of assholery leverage? The question is am I actually breaking any laws or doing anything truly dangerous? I just want to have some life affirming pandemic sex in the privacy of my apartment. And then immediately go back to my domestically tedious lockdown. Obvs the kids would be with their dad during these visits.
EP: Even the strictest judge should understand the importance of life-affirming pandemic sex, but you are giving your ex leverage if you pursue it under these circumstances. In normal circumstances, a court is unlikely to care that a parent is spending time with a lover, so long as the children are not impacted. But given the pandemic and the sheltering in place orders, this may be an example of a time when such an affair could impact the children. Outside of New York, at least one court has issued an order that once sheltering in place goes into effect, the primary parent should retain sole physical custody until the end of the quarantine period. Other courts have determined that even parents who are essential workers and have been exposed to people with covid shall maintain the same access rights they normally would have until there is evidence that they, themselves, are sick. So, it is clear that reasonable minds can differ in evaluating what parental conduct endangers children in this new age. We do not have controlling authority in New York regarding what precautions are required during the pandemic or what custody modifications might be appropriate, but we do know that PAUSE is still in effect in New York and even if you were traveling only from the UWS to Brooklyn to meet your lover, you would be violating that mandate. When you say you would use all necessary precautions, does that include ensuring that your lover has also been quarantining for at least 2 weeks and has not had contact with anyone during that period? It is hard to provide such assurance in New York, where so many of us share elevators and laundry rooms and pass each other with less than 6 feet between us (even if we are wearing our masks) when out to grocery shop or get some exercise? Is this lover an essential worker who is engaging with the world to an even greater degree? Do they take public transportation? Come in contact with Covid patients? And in order for you to travel from PA to Brooklyn, are you coming into contact with other people or otherwise increasing the chances that you could be exposed? The point is that there is clearly going to be some risk of exposure and at a time when our children are foregoing school attendance in order to avoid encountering any such risk, it seems unlikely that even life-affirming pandemic sex will be deemed an acceptable justification if your ex decides to challenge this choice.
I'm really worried about having to split retirement assets in an economic downturn due to COVID. Any tips on negotiating, particularly with regard to retirement funds?
KF: Some good news: neither party has to be saddled solely with the retirement assets or be forced to take a cash payment for its value during the economic downturn. In connection with finalizing your divorce, retirement assets can be transferred without tax liability or penalty if the transfer is done properly. You and your spouse can divide the retirements accounts by rolling over the assets into a separate retirement account or by a qualified domestic relations order which allows a payout of the retirement assets to the non-titled spouse. Consult with a family law attorney and a QDRO specialist to ensure your assets are transferred consistent with the retirement plan and the tax code.
How can I tell if I actually want to leave my spouse right now or if it’s “just” the epidemic?
EP: This is the first question we encourage potential new clients to consider during consultations these days. Most people are not their best selves under these conditions and many also are not the best partners they can be, but that is not necessarily a permanent condition. Making an important life decision while in the midst of a crisis like this is generally discouraged. That said, these circumstances are especially difficult for people who had already been considering divorce and now find themselves sheltering in place with someone from whom they intended to separate. Other people may not have been considering divorce pre-covid because they had accepted a mediocre marriage, but after quarantine they have re-prioritized their concerns and are no longer willing to accept mediocre. For those people, there is little ambiguity about whether their desire to divorce is one that will remain when the world regains some normalcy. But some people are somewhat surprised by the escalating tensions that are now putting their marriage in jeopardy.
If you are not sure whether your concerns are exclusive to the living conditions of the epidemic, it may be helpful to identify what the concerns are, whether they existed even to a lesser extent prior to the epidemic, and if so, what helped to ameliorate those concerns before but is not helping now. Will those ameliorating factors return once quarantine ends? If possible, it may help to discuss your concerns with your spouse—during a calm moment, not in the heat of an argument—to see whether he or she is also experiencing the tensions and, if so, whether there are boundaries you can establish or otherwise work together to try to resolve some of the issues now.
My husband and I are splitting up the second this is all over but we have a shelter in place order right now and are staying in the same house to provide consistency with the kids. It’s not amicable. Do you have any tips on how to best live together with someone you’re divorcing?
EP: Having to live together after you have agreed the marriage is over is exceedingly difficult and is not unusual even outside the context of the pandemic where there are the children and the parties have not been able to agree to an interim custody and access schedule. It is hard to remain amicable under those conditions in even the best circumstances and no one would claim that the pandemic is the best circumstances.
It may help to establish a schedule for when each of you will be primarily responsible for parenting to avoid skirmishes in front of the children about whether a certain show can be watched, a school assignment has been done properly, or another sugary snack can be consumed. Where possible, you want to avoid undermining each other’s parenting or giving the children the ability to pit you against each other. Similarly, it will help to establish agreed-upon house rules about those kinds of things to avoid heat of the moment battles, as well as rules regarding how to manage the pandemic life: are errands and runs permitted and if so, with what precautions (for example, masks, gloves, only during certain less congested hours, with an agreed-upon, limited frequency, etc.); are deliveries allowed and, if so, what is the procedure for dealing with them.
Finally, if possible, it may help to establish some space in the residence for each of you to call your own. If there is an extra bedroom, perhaps one of you can take the master and the other can take the guest room so that you each have a safe space for privacy to regroup, call your attorney, or just scream into your pillow. Another way to maintain your privacy is with your electronically stored information: ensure that all of your social media accounts are private, that you have changed the passwords for all personal email accounts, that you have disconnected any accounts and devices that are connected to the family cloud or other central data storage center to which your spouse has access, and that you are not maintaining emails or other private information or documents on the hard drive of a device to which your spouse has access.
My ex claims we don’t need an attorney, just a mediator, and is implying that lawyers are only for people who hate each other/want to get each other’s money. My friends all say I should lawyer up but I don’t want to make this acrimonious if it doesn’t have to be…what should I do?
EP: Mediation can be a great option for couples who are amicable and fairly equally-positioned in terms of access to financial information so that there is not a significant imbalance of negotiating power. It may help your ex to know, however, that even when a mediator is used, parties are each encouraged to have their own counsel to review any agreement the mediator prepares, and having that attorney available to consult during the mediation process can help to ensure there will not be any surprises at the end of mediation process when a party meets with an attorney for the first time and decides the deal is not in their best interest. It is also helpful to know that mediation is not the only way to have an amicable divorce process. We frequently represent people in amicable cases where the attorneys are able to support the parties in maintaining a respectful and collaborative process of determining the assets and liabilities to be distributed, negotiating an agreement with respect to same as well as an agreement relating to custody and access and support, and executing that agreement without having to involve a judge. When parties each have the right counsel, it is often possible to get through the process more quickly and more amicably than with a mediator. But while maintaining a collaborative and respectful tone is an important goal, the most important goal in getting divorced is ensuring that you understand your rights and that they will be protected. Ensuring that you are informed and well-represented is not a hostile act and I would be concerned about the motives of a spouse who suggests that it is.
I don't want to attend mediation virtually, and would rather wait until the pandemic shakes out a bit to meet in person. Can I do this? Otherwise, I'd have to attend mediation with my kids in the other room.
KF: You raise an excellent point - that your children might overhear discussions relating to your divorce. While reaching an amicable and quick resolution is in your children’s best interests, it could easily be outweighed by them hearing their parents discuss – even in a calm, civil tone -- how a party will afford child support and spousal support and maintain a nice home for the children. Will there be sufficient funds to continue to pay for private school? Or, summer camp? It makes sense to hold off on virtual mediation and, to the extent possible, continue to have communications by email.
If you’re in any type of crisis you can text HOME to 741741 for free, 24/7 crisis counseling via the Crisis Line. You can also call the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or chat with them.
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