Understanding the Financial and Custodial Implications of COVID-19

The Coronavirus (COVID-19) pandemic has created a national conversation about the “new normal.” As a dad, you want your normal to include your children, your job, and a sense of financial certainty, but with over 30 million Americans unemployed due to the pandemic, you may be one of those impacted and are no longer able to provide the same life for yourself and your family as you once did.

As the Coronavirus pandemic continues, the financial impact still is being felt around the country. You may no longer be able to afford the home that you once felt comfortable affording.

You may be in the process of divorcing your spouse and already were feeling a sense of uncertainty, prior to the pandemic. You already may have gone through a divorce and no longer have the job you once did that allowed you to make child support and alimony payments to your co-parent.

Cordell & Cordell hosted a Virtual Town Hall on April 30, featuring a panel of attorneys from around the United States, hosted by Cordell & Cordell Executive/Managing Partner, CEO Scott Trout.

Accurately report your finances

During the Virtual Town Hall, they explained the financial plight you may be feeling as a dad, who may be in the beginning stages of the divorce process, or already have gone through it and are struggling to meet court-ordered financial obligations.

“What I say to guys [starting the divorce process] is that you have one chance,” Mr. Trout said. “And if you don’t accurately reflect income or expenses, that’s a problem for guys, especially when you have time to get it right.”

You still can file with courts

Outside of the circumstances associated with a pandemic, you typically have a sense of freedom, in being able to file with family courts, with the assistance of your family law attorney.

However, with the COVID-19 pandemic affecting how open courts may be, there is a perception that exists that your situation may be stagnant and that you cannot file. In most areas, that is untrue.

“In Florida, the courts are closed to the general public, meaning that you can’t walk into the court and file an action, unless it’s an emergency,” Cordell & Cordell Florida Litigation Manager Marc Cohen said. “But they are open, in terms of us [attorneys] being able to file actions, being able to get hearings before judges.”

Filing for modification

As challenging as the pandemic may be, you still have prior financial obligations related to your divorce or child custody situation. Those do not stop existing, and courts still expect them to be honored.

However, when a considerable change in your financial stability does occur, then it becomes necessary to incite change within the courts through the modification process.

“Keep in mind that when these support orders are made, they are what they are, until there is a substantial change in circumstances,” Cordell & Cordell Regional Partner Erica Gittings said.

As challenging as it may be to seek an attorney to file for modification, with mounting child or spousal support payments, you cannot afford not to take action.

“Whether you are looking to modify support or maintenance, due to a job loss or you’re just starting out on a divorce, it becomes especially important to modify if you’re now collecting unemployment and you have had a significant decrease in your income,” Cordell & Cordell Regional Partner Bridget Landry said.

“In Minnesota, the support modification, which includes spousal maintenance or alimony, and child support, are retroactive from the date they are served. So, if already have a decrease in income, it’s very important to get that motion served, as soon as possible, because even though your court date may not be a month, or two, or three from now, the retroactivity will go back to the date of service.”

Getting modification filed as close to any type of job loss or change in circumstances is critical, so that you do not end up paying more than you are able to in the months to come.

“When you say to judges ‘Well, it was Coronavirus. I didn’t do anything,’ it’s not going to be an excuse,” Trout said. “We want to give the judge the maximum latitude across the country, where ever you may be, to make that order retroactive and apply toward payments that you couldn’t make.”

Issues of infidelity

The Virtual Town Hall also addressed issues surrounding infidelity during the Coronavirus pandemic and how it may affect the divorce process. If you are like many who find themselves on the wrong side of a spousal affair, it can affect how alimony is determined after the divorce process is initiated, depending on the state.

When your financial stability has been compromised by unemployment, and the amount of parenting time you have has been reduced, due to COVID-19, this determination can be critical for your future.

“New York, like many states, is considered no fault, which means you don’t have to show that somebody had an affair, in order to get a divorce,” Cordell & Cordell New York Litigation Manager Asa Neff said. “But it is certainly taken into consideration for a lot of purposes. It can have a financial impact, certainly if you are spending money on an extramarital affair. If that’s found out, a judge can order that that money come back in and have to be redistributed and repaid to the marital estate.

“If there are issues of custody in a case, a judge is going to look at your behavior and make a decision about whether or not that should impact the time you’re going to have with your children.

When considering to refuse custodial exchanges

From a custodial perspective, the Coronavirus pandemic has allowed questions of safety to surface. If you are like many parents around the country, you may have valid concerns about your child’s well-being when with your co-parent and may consider refusing custodial ex-changes.

When thinking about these circumstances, it is important to be mindful of the present and future legal repercussions of those actions.

During the Virtual Town Hall, Ms. Gittings addressed these circumstances and laid out steps to take when considering to withhold your child and refuse a custody exchange during the COVID-19 pandemic.

  • “Have a written communication expressing your concerns to the other parent.”

“I want you to keep in mind that anything that you write could be an exhibit, so watch your tone, make sure your intentions are clear, and make sure you’re not being accusatory or inferring that the other parent is wanting to put the child’s health at risk.”

  • “Document what you are doing to make sure that you are following all of the Governor’s orders for your state and making sure you’re following all of the social distancing requirements. Also make sure to document any evidence you may have that your co-parent is not following the isolation orders or the social distancing orders.”

“Make sure you have something that you can bring to your attorney.”

  • “Before you decide to proceed, contact your attorney.”

“In the state of Wisconsin, we have the statute, a motion to enforce placement, and if you withhold the children and the court finds out that it was intentional and unreasonable, you could be subjected to paying the other side’s attorney’s fees. So it is important to put all of your ducks in a row, in order to show the courts your concerns, which are real and are expressed appropriately, and that you’re taking the right steps.”

Staying proactive during a pandemic

While you may be facing valid financial and custodial concerns caused by the Coronavirus pandemic, the attorneys featured in the Cordell & Cordell Virtual Town Hall echoed similar sentiments of being proactive during this time of uncertainty.

Take steps to document any actions or interactions you may have with your co-parent. Pay what you can in child and spousal support. Learn more about the guidelines of your state, as it relates to custodial exchanges and retroactive modification dates. Contact a family law attorney and have actions filed that can assist you and your family, as you face the pandemic together.

Related coronavirus coverage:

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Coronavirus and Child Custody: Co-parenting During the Pandemic

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