How the Pandemic Has Changed Divorce

Like practically every other part of life, divorce has been affected by the coronavirus pandemic. The process, numbers, and in some cases even reasons for seeking divorce have changed. "Often in a damaged marriage, there's a straw that breaks the camel's back. In 2020, that straw was the COVID-19 related stay-at-home orders that affected millions of people and changed the way they live and work," says San Diego-based divorce and family law attorney Michael MacNeil. Here are just some of the ways divorce is evolving.

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One of the most common factors in a spouse's decision to seek divorce is money and finances, MacNeil says. In 2020, many people faced job losses and income reductions that affected family finances. "Added to that, spouses were forced to spend significantly greater amounts of time together as their financial difficulties persisted," MacNeil says. "In prior years, there would have been periods of respite as partners went to their jobs during the day and enjoyed a social life outside of the home at night. Those outlets were taken away due to the pandemic. Many marriages did not survive."

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Eliminating social activities and workplace distractions gave people more time to reflect on their lives and make major decisions. "I've heard from some people who are now thinking about divorce just because they have more time to think, because they lost their job — and since they have extra time for reflection, they are realizing they need to get out of the relationship," says divorce mediator Erik Wheeler, of Accord Mediation, which works with Vermont Superior Court's family mediation program.

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Traditionally, newly divorcing couples tend to wait until after the holidays to start a separation, says Morghan Richardson, matrimonial partner at the law firm Davidoff, Hutcher & Citron in New York. "But last year, I saw zero slowdown in new cases [during the holidays]. Mainly, people are tired, and they don't see a reason to wait any longer because they've been stuck at home so long and they just want a break."

With the initial rounds of stay-at-home orders, many courthouses closed completely. "For several months, courthouses did not accept any new divorce filings, even as more and more spouses made the decision to end their marriages. When the courts finally reopened, it was on a limited basis," MacNeil says. Ordinarily, someone filing to dissolve a marriage could expect a delay of a few months to get into court; mid-pandemic, it took months just for paperwork to be processed, and court hearings were set many months after that.

COVID-19 has altered the landscape in terms of court and mediation appearances. "Many jurisdictions are now operating remotely and are offering virtual hearings. Among mediators, virtual sessions have become the norm," says attorney Dorit Goikhman, founder of Off the Record Mediation Services.

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Using computers and Zoom calls for divorces can be challenging. "Many people who had never participated in any kind of video conference were forced to learn. Although the technology available during this pandemic has been advanced enough to effectively accomplish the needs of parties to divorce and other family law matters … it's not without technical difficulties. Sometimes, the software and hardware involved just doesn't work," MacNeil says. "Usually, this causes minor delays or inconveniences, but occasionally, it has caused total losses of hours' worth of court hearings, exacerbating delays further."

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On the bright side, remote hearings may reduce the amount you pay for legal fees. "In the past, attorneys would typically need to bill for an entire morning spent at the courthouse waiting for a short hearing. Now some attorneys are able to operate more efficiently," Goikhman says.

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The sudden emergence of remote hearings in divorce cases has had some upsides: "It makes it logistically easier for witnesses to participate in the proceedings. They simply have to log in rather than travel to the courthouse," says Attorney Ben Carrasco in Austin, Texas.

There are special rules in place in nearly every jurisdiction across the country regarding process deadlines, filing procedures, remote hearings, and nearly every legal process that's part of a divorce. "Changing any part of the elaborate justice system in our country can have unforeseen consequences," says Joseph Hoelscher, managing attorney of Texas-based law firm Hoelscher Gebbia Cepeda, which handles a variety of family law cases, including divorces. "Changing many basic functions at once has caused chaos."

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The increased volume of work may not clear up anytime soon. "We have a major backlog and nobody knows when it will get better," Hoelscher says. "We had a big surge as the original COVID shut downs were relaxed, but courts are starting to slow down, again, as the numbers get worse. In San Antonio, our family courts routinely handled over 100 cases per day, but have been restricted to as few as 30 cases per day, and our total volume of cases has increased by around 300%. In the meantime, people are moving, circumstances changing, and money running out, meaning what progress has been made is being lost."

Sorting out custody of children and visitation is another major element of the divorce process affected by pandemic. "I've seen a surge in fights between parents over whether their children should attend school in person or travel on airplanes for visitation," Carrasco says. "While some of these battles are being waged in good faith, I believe many parents are weaponizing the pandemic to engage in petty one-upmanship or, worse, deprive the other parent of access to their children."

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The financial stresses of the pandemic affect the ability to pay for legal representation or child support. "In divorce cases, one party will often seek temporary orders for spousal and child support, as well as an award of need-based attorney's fees," MacNeil says. "Where these requests would previously have been granted, the loss of a job or reduced income resulted in legitimate claims of the inability to pay for these requests."

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There's always been a need for couples to resolve differences without court proceedings.  Monumental backlogs make need even greater. "Not only does the prospect of protracted legal proceedings come with a high financial cost; the failure to mediate and negotiate family law cases will result in significantly lengthened case duration," MacNeil says. Moreover, in the past one spouse might have moved out and rented a separate home during a lengthy divorce process. Now divorcing couples are more frequently stuck in the same home — without even having the opportunity to leave the house for work.

The uncertainty of COVID-19 has caused many couples to consider delaying selling their mutual property as part of a divorce. "This can be particularly limiting where there aren't many liquid assets to be divided," Goikhman says. "In some cases, selling a primary residential property at this time may not be a good idea due to the market — yet it may be necessary to divide the marital estate."

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"The biggest change is in our clients," Hoelscher says. "They're frustrated by the delays. They lose faith when we can't predict results, or even court dates. They are using us for emotional support because they're cut off from normal human contact. Just think about how bad the world is that people are willing to pay $500 an hour to vent about their [personal life] to a lawyer they're mad at for not getting things done. And they all wonder why we can't return their calls right away and their bill is so high."

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