DIVORCE IN THE TIME OF COVID-19
As of late March 2020, much of the United States is either under a direct Shelter-in-Place/Lock Down order or under a “suggested advisory” to stay inside and away from other people. This has resulted in almost the entire country staying in their homes for much of the day and night. And this includes people who are either already engaged in a divorce proceeding or who are already heavily contemplating divorce. The courts, as you know, are closed in Massachusetts and nothing will be scheduled in the courts before May 1. This has led to predictions among many legal experts that forecasts a dramatic rise in divorce actions after the COVID pandemic is over.
So, if you are such a person – someone who is contemplating divorce but cannot do anything while the courts are closed - what do you do?
First and foremost, this question relies heavily on your relationship with your current spouse. If- and this cannot be overstated – you are in fear of your spouse from ongoing physical abuse, you must be extremely cautious in even raising the subject with your spouse. Further, if you believe that you are in danger of imminent bodily harm or have already been the victim of such violence, the courts will hear any 209A Restraining Order (even under the COVID-19 closures). The courts have issued many Orders considering COVID-19, but all of them have stressed that they will continue to hear Domestic Violence Prevention Restraining Orders whether in person or via telephone or video conference.
However, looking at relationships where violence is not a concern, you still must calibrate your relationship with your spouse. If you and your spouse can communicate and if there is no pressing emotional turmoil, then discussing divorce with your spouse during this time of COVID-19 may be a viable and productive option. Working with your spouse about what you agree on – when to sell the house, what the parenting plan would look like – can be extremely valuable and could save time and money later. At the same time, if, as is likely, you and your spouse find healthy communication difficult, you may wish to avoid these discussions altogether, especially when you consider that you and your spouse will be spending a lot of time together in at least the near future under social distancing.
Second, and likely the most valuable thing you can do in preparing for a divorce, is getting a handle on your own finances and the family finances. Here is a link to the Massachusetts long form and short form financial statements (the long form is for people earning over $75,000.00; the short form for people making less than $75,000.00). Probably the most important thing you can do during this time in preparing for a divorce is knowing the correct answers to each of the categories listed on these forms. While almost everyone has a very good idea how much they earn each year, breaking that amount down by week can prove challenging. Do you have alternate streams of income, whether they be passive investment income, rental property or help from a family member? What about your taxes? How much do you pay in payroll taxes? For Medicare? Health Insurance? How much do you pay, weekly, for your mortgage? For food? For your car? How much is your house worth? How do you know? How much is in your 401(k)? In your checking account? How much do you owe in credit card debt and when did you begin incurring it?
Getting to know and understand your own finances can go a long way in not simply getting you ready for court but can have two very important benefits. The first is that it gets you to think about your own finances when you and your spouse do start living apart. It will give you a greater appreciation for how much your new life will cost and how you can afford it. However, the second benefit is that it gives you information about your assets and several joint assets (especially the house) and what their value will be in a divorce. This gives you information necessary to see what options are available to you in dividing up the marital assets.
For example, if you know your home has equity of $200,000.00 and a monthly mortgage payment of $1,800.00 you can calibrate if you can make such payments on your income alone in light of all the other bills and expenses you would have. Further, if you have a 401(k) with $200,000.00 in it you know you can at least make an offer to your spouse of potentially buying the spouse out of his or her share of the home.
Finally, while knowing your income and assets is valuable, you should also know your debts and how the family came into those debts. Debts are, generally, treated in the same way assets are by the court in that it is presumed that a debt is held equally by the parties. But it is not always the case if certain debts were incurred not for the benefit of the family but for the enjoyment of one party. For example, if one party went on a trip on their own and put it on a credit card, a court could rule that that debt belongs only to one party and upon divorce would be their sole responsibility (subject to any action the credit-card company could have against both parties if it was a joint credit card). Knowing the family debt can be incredibly valuable in a divorce and having this information handy is key.
Third, and with family finances in mind, I would become familiar with what the court requires of people after they have filed for divorce. Massachusetts has Supplemental Probate and Family Court Rule 410, the Mandatory Disclosures that both parties must exchange within 45 days of the divorce being served. This calls for each party to give the other:
The parties' federal and state income tax returns and schedules for the past three (3) years and any non- public, limited partnership and privately held corporate returns for any entity in which either party has an interest.
The four (4) most recent pay stubs from each employer for whom the party worked.
Documentation regarding the cost and nature of available health insurance coverage.
Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).
Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint.
Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint.
Therefore, it would be a good idea, if you are certain that divorce is highly likely for you after the COVID-19, for you to gather up the documents listed above. Most banks can provide you statements on-line, and you can collect pay checks in preparation of divorce. Most of the other documents can be either ordered or you can spend the time finding them during the social distancing time. By gathering up the documents now you save important time (and money) later.
The fourth thing to do is begin looking for an attorney. Obviously, this can be done at any time, and you should probably do this as soon as practical. As I stated in the prior blog entry, right now attorneys are not going to court (by-in-large), and therefore can budget time to speak with potential clients who are actively considering divorce when the courts reopen. Speaking to attorneys you can give you more insight on the specific issues present in your case and you can begin doing what needs to be done in your case. You can also begin to budget for your new attorney.
The fifth thing to think about would be the family’s living arrangements during and after the divorce. If you believe that you and your spouse cannot or should not live together any longer then you should begin making an exit strategy. This could be something as simple as checking rental units in your area to asking friends and family if they would allow you (and your children) to stay with them for a while to something as difficult as asking your spouse to leave. You should be aware that Massachusetts has no law that obligates a party to leave the home during a divorce unless they have been ordered to by a judge. Therefore, if you do discuss your spouse leaving the home you should be aware that there is no law that- barring a court order – would compel a party to leave the home. However, if you and your spouse can work out certain arrangements at this point safely and respectfully it may be a good idea to start that discussion.
Just as there are areas where you should focus on with a potential divorce on the horizon, there are several things you should not do. The first thing to avoid would be discussing any aspect of the divorce with your children. This is an extremely difficult time for everyone and adding to your children’s already disrupted lives a divorce- even if the parties are in agreement – could be extremely traumatic on children. This is made worse by the fact that your children would be stuck in the home with you and your spouse during this time and could do everything from acting out to trying to engineer a reconciliation. None of these things would be good for the children.
Another thing to avoid would be making any long-term decisions as it pertains to potential assets and debts. While discussing the marital home and its eventual sale are good ideas, putting the house on the market or even contacting a realtor is not advisable. The same would be true for disposing of any other assets, such as a car, or taking on new debt (such as a car loan). Whenever possible, your finances should remain static, and you should avoid incurring more debt or disposing of assets even in this uncertain time.
The last area to avoid would be rushing to court unless it is a true emergency. The courts are down to a skeletal staff and is only hearing emergency filings – ie: areas where the life and health of the parties or children is in direct peril. While you may believe that getting a jump to the courts will give you an advantage in the process, this is not usually the case. Further, unless your case is a true emergency you are likely to not get very far in a court that is not scheduling new cases until May 1 at the earliest.
Finally, what do you do if you are certain your spouse is planning on filing once the courts reopen? The first thing I would do would be to follow the advice I outlined above- get your finances together; gather documents; talk to an attorney. However, I would also – assuming its safe to do so – approach your spouse about his or her actions and plan for divorce. Can you work out an exit together? What do you agree on and what would you need court involvement on? What can you start working on now? Can one of you move out?
These may seem like issues beyond what is possible. Most divorces are extremely difficult and painful; they involve an interruption to family lives, personal connections and finances. It may seem almost unheard of for two people to discuss- much less work out- aspects of their divorced lives while their marriage is clearly over. However, if you can begin to plan - get a good understanding of your finances; look at the options for where you will live after the divorce; and speaking to an attorney – you will have a healthy and appreciable leg up on most people who begin this process usually in a rush and without much if any planning. And if you can discuss these matters productively with your spouse, all the better.
If possible, use this time wisely so that once things start up again you will have the knowledge and understanding necessary to face it and work through it.