Like most industries, the legal world is adapting to this strange and unexpected new world we find ourselves thrust into in the Spring of 2020. COVID-19 is affecting divorce and other family law cases, just like everything else.
First of all, many courts have suspended all non-critical hearings. In the jurisdictions where I practice, this has resulted in most courts allowing agreed orders, including final orders on divorce (also known as final decrees of divorce) and child custody to be submitted electronically with an affidavit en lieu of testimony.
So far, for contested issues, most courts are dealing with true emergencies on a case by case basis. Most of these true emergencies I am hearing about are situations where parents are refusing to follow a possession (also known as a custody or timesharing) schedule and using COVID-19 as an excuse, or where there are immediate child abuse or domestic violence issues. All other matters are getting pushed out. Exactly how long these other matters are getting pushed out is the million-dollar question. We are starting to hear rumblings about contested hearings getting scheduled and/or rescheduled using Zoom or other virtual platforms. Some courts are also offering reset dates in July or August if the matter is one that the litigants agree can wait.
For Collaborative clients, we are seeing a mass exodus to virtual meetings. This is working quite well in these cases, and they are moving forward on their original schedule or only slightly behind schedule. Most of these delays are due to businesses and families adapting to the new environment. We can meet virtually as a full team, and we can also break out into separate rooms if /when needed. I think it’s possible we will see a surge in people selecting the Collaborative option, as it gives individuals a more efficient and available forum to resolve their divorce—particularly in the wake of so many unknowns at the courthouse.
The only changes in Collaborative Divorces with COVID-19 is that we are not meeting in person and now, in my jurisdiction, do not even have to make a court appearance to finalize the divorce, as we have had to do historically. Honestly, I have been using Zoom for years in Collaborative cases, but not on the scale we are using it now. Previously, I used Zoom (or sometimes FaceTime or Skype) when a party or professional was out of town, but available to attend virtually. I have had clients successfully complete Zoom Collaborative cases in Austin, Texas, from Canada, Dubai, El Paso, Brazil, and many other places. I have attended meetings held in Austin, Texas, from Colorado, Dallas, and Fort Worth.
Likewise, mediations are moving online/virtual as opposed to in person. Many of my mediator friends are as busy or more busy mediating over Zoom as they were prior to the Shelter-in-Place Orders. We are fully set up to host Zoom mediations and are hopeful that this will be a great solution for our clients under the current circumstances.
My prediction is that some of these changes that COVID-19 has forced on us may result in lasting changes to how we “do” divorces. For example, I’d really like to see the elimination of the in-person requirement for “prove up” hearings (a requirement in many jurisdictions where parties have to provide jurisdictional testimony to judges) on agreed divorces continue if and when things get back to normal. It just makes sense to preserve the Court’s resources for those cases truly requiring a hearing or testimony, not to mention travel time and paying counsel for a court appearance that is not really needed.
Similarly, I can envision a continued use of the Zoom platform for some Collaborative and mediation cases. In many ways, the use of this technology could broaden our ability to practice state-wide, regardless of our physical location within the state—particularly for cases where we are using mediation or Collaborative or when detailed knowledge of the judge or court staff is not material to the case. In many cases, this could increase access to expert level attorneys to individuals living in rural areas where there are historically fewer attorneys in general, much less highly-specialized attorneys.
It could also mean that, for instance, if you want to do a Collaborative Divorce and there is not a thriving community of Collaboratively-trained mental health professionals, financial experts and/or attorneys in your area—you simply hire all or part of the Collaborative team from a different part of the state.
There will be updates to all of this since everything is still evolving. If you had told me a month ago that this would be the situation, I would have thought it was a bad joke. Unfortunately, it is reality. We are doing virtual school for a 4th and 7th grader. I like to call it “crisis-schooling,” instead of “home-schooling,” and we are staying put and keeping to ourselves unless absolutely necessary. Hopefully, everyone else will do the same, and we can resume a new version of normal soon.
Cristi Trusler is a Board Certified Family Law Specialist and a trained mediator. She has a boutique collaborative divorce practice in Austin, Texas. Cristi is an active member of the International Academy of Collaborative Professionals and the College of Collaborative Law. She is Masters Level Credentialed by Collaborative Divorce Texas and a founding board member of Collaborative Divorce Austin.