Your Family Matters

FAQ about family law during the
COVID-19 crisis

Dear Reader:

I hope that you and your family are safe and healthy during this very difficult time. This
is a time of serious uncertainty, and my office is here for you to do our utmost to be of service to
you and to your family during this unprecedented crisis.

Our office is open for virtual consultations, to meet with members of the community via
telephone, Google Hangouts, WhatsApp, and Zoom. Over the past couple of weeks, we have
received several inquiries about how family law matters will be impacted by this crisis. In an
effort to be useful to the people we serve, we are posting answers to these frequently asked
questions.

1. I was served with divorce papers, and they say that I need to respond within twenty days.
The courts are closed, and twenty days is coming up. What do I do?

On March 20, 2020, Governor Cuomo signed Executive Order 202.8, tolling all court deadlines
until April 19, 2020. See here:
https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. That means that the twenty-day period stopped on March 20,
2020, and will continue again on April 19, 2020. It is likely that another order will be issued
in April unless the crisis ends earlier than expected.

2. Can I file for divorce now?

Unfortunately not. The Chief Administrative Judge has limited new filings to “essential
matters,” a list of which can be found here:
http://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.

3. There is a visitation order in place. Does the coronavirus pandemic stop the visitation?

No. The order remains in place until it is changed by the court.

It is expected that when courts reopen, there will be a lot of people who have court-ordered
visitation asking courts to punish the other parent for withholding it. Given the unprecedented
nature of this crisis, it is difficult to predict the extent to which courts will enforce visitation
orders. As an experienced family law attorney, I believe that each case will be evaluated based
upon its own specific facts. The courts are likely to punish custodial parents for failing to
comply with visitation orders if they decide that they withheld visitation for reasons other than
legitimate safety concerns, and simply used the coronavirus crisis as a convenient excuse. In
contrast, if they find that the custodial parents withheld visitation because they had legitimate
reason to believe that it would put anyone, such as the children, or even elderly relatives, in
danger, then they are not likely to punish them for it.

4. I have a temporary order of protection that is about to expire, but the court date is being
adjourned because of the coronavirus crisis. What happens to the order?

All temporary orders of protection are extended until changed by a court. Here is the link.
https://ocfs.ny.gov/main/news/2020/COVID-2020Mar19-Admin-Order-73-Temp-OP-Extender.pdf
If you leave your home, you should keep a copy of the temporary order, and the document from
the above link, with you at all times. You should also keep copies of both papers in a safe place
at your home. This is to make sure that you can show these papers to a police officer if the order
is violated.

5. Can I file for an order of protection, even though the courts are closed?

The courts have been directed to accept filings for “essential proceedings.” That specifically
includes applications for orders of protection, so yes, you can file for an order of protection in
Family Court. See this link: http://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.

6. What happens with child support if the person who is supposed to be paying it is out of
work?

Child support does not automatically stop when someone loses his or her job. Therefore, even if
someone loses his or her job because of the coronavirus, that person will still owe child support
for the period that he or she is out of work, unless the order is changed by a court.

Someone who has to pay child support, and is now out of work, should do the following now:

  • Look for a job, and keep records of your job search. Even though it will be hard to find a
    new job now, you need to look, and keep written records of everything that you did to
    find work. Keep a journal of every resume you send out, every call that you make, every
    e-mail that you send, and every online application you fill out. Keep it in a safe place, so
    you have it ready to bring to court. Bring extra copies with you when you go to court.
  • Make child support a priority over your other expenses. If you need to choose between
    paying your child support and paying your cable bill, pay your child support.
  • Apply for unemployment.
  • When court reopens, if you are still out of work, and you have done all of the above, file
    a petition to reduce your child support obligation. Courts can only modify child support
    orders retroactively to the date when someone filed to lower the order. In other words, if
    you lost your job on March 20, and you file to reduce your child support on June 20, you
    will still owe the same amount of child support from March to June that you had to pay
    when you were working. The child support order remains the same until it’s changed by
    the judge, but if you file to reduce it, the court can do so retroactively to the date that you
    filed your papers asking to change it.

If you’re supposed to get child support, the person who was supposed to be paying it stopped
paying it, or is paying less than he or she is supposed to, you can go to court when courts reopen
and file a petition to enforce the order.

7. I’m going through a divorce and my spouse is asking for maintenance (alimony). What
happens if I agree to maintenance, and then I lose my job because of the economic fallout
from the coronavirus crisis?

If you agree to an order of maintenance, you can only get it changed by showing “extreme
hardship.” When people ask for maintenance to be lowered or terminated because they lost their
jobs, the courts decide based upon the specific facts of each case whether they successfully
demonstrated “extreme hardship.” Some factors that the courts consider include, but are not
limited to, whether the termination of employment was truly involuntary (a layoff) or not (e.g., if
the person was fired for misconduct, or voluntarily quit), whether the person is diligently looking
for new employment, and whether the inability to pay maintenance is simply because the person
is choosing to spend his or her money on luxuries.

8. I’m going through a divorce and my spouse is asking for half of my retirement account.
It went down by a lot because of the market crash. What happens now?

Generally, assets whose value depends upon market conditions (“passive” assets) are valued at
the time of trial, and assets whose value depends upon their holders’ efforts (“active” assets) are
valued at the time of commencement. In other words, unless you are in the rare position where
the value of your retirement account goes up and down only due to your own efforts, and not
because of market conditions, your retirement accounts will likely be divided based upon their
value at the time that you go to trial.

However, the volatility of the economy is likely to complicate settlement negotiations. When it
comes to IRAs and 401(k) accounts, people going through divorces generally agree upon either a
dollar amount, or a percentage of the account value as of a certain date, that goes from one
spouse to another. It is hard to agree to a number, given that on a day with bad news, that
number will be a high percentage of the account’s value, and on a day with good news, it will be
a low percentage. If you agree to a percentage as of a certain date, that could be a small number
on one day, and a high number the next day. This will take significant creativity during these
unprecedented times.

We hope that this has been helpful to you, and please stay safe and healthy!