Charlottesville Divorce Lawyer Rob Hagy

COVID doesn't justify modification to a support agreement.

COVID doesn’t justify modification to support agreement.

When a party who is paying alimony or child support wants to modify their payment obligations, they typically have to prove a change in circumstances justifying such an order. In most states, this requires a showing that whatever change has occurred has made it significantly harder for the paying spouse to support themselves and that this situation is both real and permanent.

COVID-19, however, has proven to be a massive disruption to this typically straightforward calculus, as courts have had to grapple with the reality of the pandemic’s impact on people’s incomes. For example, what may have seemed like temporary losses of income in the early stages of the pandemic have often continued. So should courts now be viewing COVID-related disruptions as permanent? A recent case from New Jersey may provide some guidance on the issue.

In that case, Jeffrey Gerstel and his wife Mia divorced in 2009 after 12 years of marriage and three children. Jeffrey was ordered to pay $3,600 a month in child support. In 2017, Gerstel’s obligation was increased to $4,500 per month because his income as a physician had increased. It was modified back downward soon afterward when he took physical custody of the couple’s oldest daughter.

Weeks into the pandemic, Gerstel, who had moved to Florida not long before, sought a further reduction, citing a decreased caseload due to the pandemic, lower medical reimbursement rates in Florida and an inability to find other employment.

A family court judge denied his request, deciding that several months of pandemic-related reductions didn’t constitute permanent changed circumstances. Gerstel appealed, but a New Jersey appellate court upheld the lower court’s ruling, finding that the judge exercised “sound discretion” under the circumstances.

Of course this is just one decision from one state based on a situation from early in the pandemic. It’s possible that someone still feeling the effects of the pandemic more than two years later could get a different result. If you are dealing with pandemic-related economic challenges that continue to make it difficult to meet your support obligations, talk to a family lawyer to discuss potential options.

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‘Virtual’ trial without proper safeguards violates parent’s rights!

‘Virtual’ trial without proper safeguards violates parent’s rights

Since the start of the pandemic, family and juvenile courts everywhere have scrambled to find ways to carry out their proceedings. In many cases, this has meant “virtual” hearings and trials over videoconferencing applications like Zoom. Despite some hiccups, this generally hasn’t prevented courts from performing their functions while protecting the rights of the parties. But as a case from Massachusetts shows, technological problems can sometimes impact the fairness of a proceeding to the point where the result has to be thrown out.

The case was a proceeding in which the state sought to terminate a mother’s and father’s parental rights. The child had been in the custody of the department of children and families since 2014, when she was four. The goal at that time was to reunite her with her parents, but by 2016 the goal changed to adoption and the child was placed with a preadoptive family.

In September 2020, several months into the pandemic, a trial was held in juvenile court to determine whether it was in the child’s best interests for her parents’ rights to be terminated, freeing her up for adoption.

The first day of trial, held over Zoom, was plagued with technical glitches, making it impossible for the mother to participate by phone or video and interrupting the testimony of the state’s witnesses. As a result, the mother, who was not represented by an attorney, missed almost all the state’s evidence against her.

When the trial resumed two days later, the mother had to try and cross-examine witnesses whose testimony she had missed. The judge ended up ordering the termination of rights and denied the mother’s request for a new trial.

But the Massachusetts Supreme Judicial Court reversed the decision, ruling that the trial as conducted was unfair and in violation of the mother’s right to due process of law, and ordered a new trial.

The court made clear that a virtual trial is not, in and of itself, unfair and can be considered perfectly acceptable as long as all the parties’ rights are safeguarded. But the case does highlight the challenges of doing justice online.

How is COVID impacting parenting plans?

The COVID-19 pandemic has lasted a year so far and as of the start of 2021 cost nearly a half-million lives. Even those lucky enough not to have contracted the virus or lost a loved one have experienced havoc in the form of lockdowns, shortages, job loss and school closings. 

If you are a parent bound by a pre-pandemic parenting plan, you may be finding that the pandemic is making it tough to follow for safety or logistical reasons or due to disagreements over decisions like whether your kids can have sleepovers, playdates at friends’ houses or participate in sports.

Take, for example, the school situation. Your parenting plan was likely crafted in large part with school in mind. But now, during the pandemic, you’ve been dealing with massive disruption to your kids’ schedules. Perhaps they’re remote full time, or they’re in school under a hybrid model where their “cohort” attends in-person classes twice a week and learns remotely the other days.

Imagine you and your ex work full-time, but the kids’ remote days are the same days they’re with you. Even if you’re working at home, you’re shouldering a disproportionate burden of childcare, supervising their remote learning during the day while trying to do your own job. Meanwhile the other parent works without disruption.

One of you may also be better equipped to provide the high-speed Internet and work space necessary to support home schooling than the other parent, which is an issue you didn’t contemplate when your original plan was implemented.

In such situations, it may be worth discussing a temporary, written modified plan designed to divide parenting time to equalize in-school and remote learning days between parents while maximizing the kids’ ability to learn. Such agreements can also account for sharing of costs for computers and better WiFi.

A parenting plan drafted in normal times may also need revisiting if one parent has a job involving significant contact with the public, creating a higher risk of infection for those in his or her household. Or one household may include a relative in a high-risk category, such as an elderly grandparent. 

In such cases, the existing parenting plan may create conflict. For example, the parent living with the vulnerable relative may be concerned about asymptomatic children bringing the virus into the home but also fear that giving up physical parenting time, even as a temporary measure, will impact his or relationship with the children.

Dealing with situations like this calls for cooperation between the parents. If a parent needs to forego parenting time, the other parent needs to be conscientious about maintaining that parent’s connection with the kids over Zoom, FaceTime or other videoconferencing.

A family law attorney can help you negotiate an agreement to address these issues and help you seek approval from a judge if necessary. The necessity for the latter may vary from state to state. A judge’s willingness to approve a modification may vary as well. Talk to a lawyer to discuss the lay of the land
where you live.

COVID-era Divorce Solutions Could Outlive Pandemic.

The Covid-19 crisis has impacted every aspect of life, including divorce. With courthouses closed to the public, divorcing couples have had to contend with technology solutions like Zoom for hearings and trials. This has made what’s already a challenging process even harder as participants deal with bad connectivity and sound, background distractions and getting documents to a judge that can usually be handed over in person.  Nonetheless, Zoom and similar tech solutions have improved the process in certain ways that may outlive the virus.

For example, remote conferences and hearings enable divorcing spouses to avoid each other’s physical presence. That can be helpful in a contentious case.  Additionally, depending on a court’s efficiency in scheduling Zoom calls there may be a lot less waiting around for your hearing, and if you do have to wait online in a “virtual waiting room” at least you’re waiting at home and not in a courtroom. Meanwhile, you don’t have to travel to court and pay for parking or wait in security lines. Your attorney and experts don’t have to do that either, which can cut down considerably on costs.

Videoconferencing can also be useful if kids are involved and you have concerns about whether the other parent’s home is fit for visitation. Zoom can enable the judge to see where the child lives, sleeps, plays and eats firsthand. Similarly if the other parent claims your home is an inappropriate place for a child, a Zoom tour may help discredit such claims.

In terms of the case itself, judges may be able to better determine the credibility of a witness who is projected on a large screen in the courtroom than they can when the witness is present in person but at more of a distance.

Zoom does present some issues. For example, family court hearings are open to the public in many states.  This could mean a Zoom hearing is open to the public too, either on YouTube or with a link provided to those who request it. This means nosy neighbors, bosses
and others who wouldn’t otherwise take the time to watch your divorce proceeding in person now may be find it more convenient to log in. Your kids might also be able to watch, exposing them to information you’d rather they not hear.

There may be security concerns for publicly viewable hearings on Zoom when documents with sensitive personal or financial information are introduced into evidence. If they’re introduced by screen-sharing, there’s the risk this information could be seen on
the internet where such proceedings are available to the public.

If this is a risk, it may be possible to convince the court not to broadcast your particular case. It’s only fair for a judge to consider the balance between the public’s right to view a public proceeding and the privacy rights of the participants.

Even after months of the pandemic, this remains a strange, new landscape that we’re all still trying to figure out, and the experience can differ from place to place. If you’re thinking of getting divorced and feeling anxious about it happening remotely, talk
to a family law attorney who can help address your concerns.

Virginia Supreme Court Provides Helpful Guidance In Most Recent Declaration of Judicial Emergency Order.

The COVID-19 Emergency has had a considerable affect on the court system.  Click here for an article I recently posted on Linkedin on the matter.