With couples spending more time than ever in the home together, those isolating with a partner during an unstable marriage, this could possibly be a recipe for disaster.
A rise in divorce?
What impact should we expect the pandemic and lockdown to have on divorce proceedings and married couples? We have seen the impact Covid-19 has had in some areas where the pandemic effect is slowly decreasing. For example, it’s been reported that the COVID-19 pandemic in China has caused a surge in divorce rates.
Speaking to Andrea Hirsch, a family law specialist in Washington, DC, she says: “At the moment, it is hard for me to say what impact the pandemic will have on divorce here.
Nonetheless, if couples do wish to file for divorce but are currently isolating together they should still think about seeking legal advice. However, the process may differ given the current circumstances.
“Divorce is an extremely personal process and every single person contemplating a divorce has different priorities and goals. It is possible to assume there are couples living together unhappily and that the lockdown will exacerbate the unhappiness.”
Do couples need to just ‘cool-off’?
Some reports have suggested a ‘cooling-off’ period to help couples decide if they really want to opt for separation, especially if being enclosed and in each others’ space was what ignited talks of divorce. And even though Andrea voiced that she there is no right answer to whether a ‘cooling-off’ period would work or be wise, she did state that, “I do advise clients to think carefully about divorce and not rush into anything so, in keeping with that advice, I would advise anyone contemplating divorce or separation to consult with an attorney to understand their rights and responsibilities.”
Nonetheless, if couples do wish to file for divorce but are currently isolating together they should still think about seeking legal advice. However, the process may differ given the current circumstances.
Most courts are currently closed, so although new cases can be filed, it is unknown when the courts will re-open and even when they do re-open, there will be a backlog of cases that will need to be heard and there will be considerable delays in court resolutions of matters, Andrea tells us.
“But the non-availabiity of the court system should not be a deterrent if divorce is being considered. A small percentage of cases are resolved through the court system. “Many divorces are resolved through out of court settlement processes, such as mediation, collaborative practice and lawyer negotiation; there is no reason to why you cannot start one of these processes during lockdown, as they are all available remotely and online. Find an attorney who is trained in these approaches and start working.”
There has been some talk on force majeure clauses being implemented in martial agreements, which may help during Covid-19, but is it necessary?
Some aspects of family law, however, need immediate attention. Domestic violence, for instance, has also been a much-discussed impact. Unfortunately, victims may be trapped with abusive partners during this time. With some states, such as New York, actively addressing the issue by introducing new legislation, we wonder if other states should take precedent. In Washington, for example, domestic violence is considered an emergency matter and victims have access to the court system for protective orders.
Do marital settlement agreements need a force majeure clause?
Even though the pandemic was an unprecedented situation, we - lawyers especially – can only use this time to learn and progress and some divorce lawyers may ponder on the benefits with including a force majeure clause in settlement agreements. Many business contracts contain a “force majeure”, a provision that may suspend or altogether excuse performance by one or both parties to the contract due to an “act of God” or other unforeseen, extraordinary event.
There has been some talk on force majeure clauses being implemented in martial agreements, which may help during Covid-19, but is it necessary?
“It might be appropriate to have a force majeure clause for spousal support provisions as they are often made unmodifiable and if a party loses his or her job or their income decreases, support might need to be re-evaluated”, shares Andrea. However, custody and child support provisions of a marital settlement agreement are always modifiable upon a material change in circumstances and certainly the current situation would be a cause to re-examine an agreement. She expands, “It seems safe to assume that even without a force majeure clause, general contract law regarding the impossibility of performance under the current circumstances, would provide sufficient protection if a provision of a marital settlement agreement could not be performed.
The full impact of Covid-19 on divorce, of course, will only be revealed in time. Until then, divorce lawyers are still reachable to offer their expertise and advice on what couples in lockdown can do about their on-going or new venture towards an amicable separation.
Andrea Hirsch
1630 Connecticut Avenue, NW, Suite 400
Washington, DC 20009
202 480-2160 (phone)· 202 480-2169 (fax)
Since 1996, individuals in Washington, D.C., and Maryland have turned to The Law Firm of Andrea Hirsch for help with divorce, child custody, support and other family law issues.
Having the right lawyer affects not only the outcome of the case but the manner in which it is handled. And that manner can have lasting consequences. Fanning the flames of animosity, litigating every point no matter how emotionally and financially draining—this is not the approach of Attorney Andrea Hirsch when handling her clients’ family law disputes.
