COVID’s impact on divorce minimal so far

Published in Chicago Lawyer Magazine, December 2020
By Daniel Stefani

Cook County shows major drop in fillings since March

How many articles and segments on television have you seen about the COVID-19 quarantine causing a huge uptick in family discord and divorces? I thought I would test the claim.

Now that we have several months of data, the predicted uptick in divorces is not occurring, at least in Cook County. Between March 1 and June 30, the number of divorce filings and paternity cases total are down almost 40% from the same period in 2019.

While filings are down, by the time this article is released, perhaps we will see the predicted effects of the pandemic on divorce filings. Once people feel that Cook County is safely on the road to normalcy and the courthouses become more accessible, people may feel more comfortable moving forward with their divorce filing.

While Cook County courthouses (along with most others in Illinois) have been closed since mid-March, the system seems to be catching up this summer with most existing cases being maintained via status calls, case management conferences and pretrial conferences conducted via videoconference. There is, and has been for the entire quarantine time, no impediment to a litigant filing a new divorce case. However, if a litigant required immediate resolution of an issue, it would have been more difficult given the lack of access to the courthouse. The question of how to proceed with full-blown divorce trial still remains open. Most trials are document-intensive, and with the current technology it is difficult, if not impossible, to recreate a courtroom atmosphere via videoconference.

As such, the impact on existing cases has been to create overall delay. The process of discovery outside of the courtroom has continued somewhat smoothly in terms of obtaining documents and information by subpoena and other means, and conducting video depositions. Experts have also been able to continue their work in rending written opinions on financial issues, but given such economic uncertainty, opinions are certain to become subject to even more scrutiny.

In terms of court proceedings being born of the COVID-19 pandemic, some of the most common proceedings that have been filed are where a spouse (or former spouse) is paying court-ordered child support or maintenance, and they have lost their job or experienced reduced income, allegedly due to the pandemic. There are also motions being filed where a spouse (or former spouse) allegedly refuses to socially distance themselves or their children from others or some other behavior that puts the children at risk of contracting COVID-19.

A similar concern arises when one spouse has traveled significantly during the quarantine, raising concerns of COVID-19 exposure to the children, especially if the spouse is coming from a hot spot.

On many of these issues, the court system is clearly running at a limited capacity, and despite the new procedures to deal with the COVID-19 pandemic, it is difficult for many litigants to get immediate relief from the court.

To preserve retroactivity, many litigants are filing petitions to modify their support obligations, claiming that the COVID-19 pandemic has limited, reduced or eliminated their ability to pay support. Retroactivity is discretionary and not guaranteed. In many cases, the impact of the pandemic is not a guarantee to reduce support obligations. Many courts are looking to the payor’s asset base to tap for support if their income is temporarily reduced. Also, many business owners who claim a reduced ability to pay support due to the COVID-19 pandemic have received significant monies from government programs like the Paycheck Protection Program disbursements. These disbursements may or may not be forgiven in part or in full. If forgiven, the moving spouse’s ability to pay support may not be effected, and therefore, there would be no justification for a reduction in their support obligation.

As it relates to child-related issues, getting immediate relief has also been a difficulty, although depending on the severity of the allegations, there have been accommodations made by courts in terms of expediting a hearing via video conference. One problem is that most cases involve a GAL or child representative and many litigants (as well as the GALs and child representatives) are and have been reluctant to meet in person. The new norm is video conference meetings between the GAL and their minor child client but these interactions are not perfect since one of the GAL’s main responsibilities is to decide what is best for the child and who is telling the truth and who is not. It is obviously much easier to do this in person.

As we navigate this COVID-19 pandemic, I am sure there will be continued unexpected twists and turns. However, it seems the divorce practice and the divorce courts have adapted in a relatively short amount of time and are moving in the right direction. Let’s hope that we all stay safe and the numbers continue to reduce with no second spike of cases, and ultimately, we will have a vaccine that will reduce greatly, or hopefully eliminate the impact of COVID-19.

Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.
[email protected]