COVID-19 has impacted our lives in virtually every way imaginable over the last few months. Our court system has not been immune – not by a long shot. Courts – closed for many weeks on end – face a massive backlog of work from non-emergency cases that have been put on the legal backburner, and will be even further compromised by the impending tidal wave of new cases that we expect will deluge courthouses around the State as soon as the current protocols are lifted, or at least eased. And the family court may be uniquely impacted.
Though our courts have remained generally open for emergency issues (like those involving domestic violence, as well as the direst child custody issues), they have closed their doors to the day-to-day family law filings and motion hearings involving less immediately important issues. Trials scheduled during our shelter-in-place environment have been delayed, perhaps for many months. Settlement conferences have likewise been pushed out to future dates as yet unknown. And the most common hearings involving the less pressing property and financial issues have either not been scheduled at all, or may well be pushed down the priority list until the burgeoning list of other “more important” issues can be handled once the courts are back open for business as usual.
And that limbo does not appreciate the financial crises that may develop from a lack of attention to support issues, a failure to address imminent property division problems (like the division of proceeds from the sale of real estate or apportioning retirement assets), or the prejudice caused by delaying the valuation and characterization of assets in the investment markets whose values may be significantly impacted by our ravaged economy.
Though the prioritization of custody and domestic violence is certainly understandable and appropriate, those of us involved in family cases that do not scream out for immediate action are now left in limbo. And that limbo does not appreciate the financial crises that may develop from a lack of attention to support issues, a failure to address imminent property division problems (like the division of proceeds from the sale of real estate or apportioning retirement assets), or the prejudice caused by delaying the valuation and characterization of assets in the investment markets whose values may be significantly impacted by our ravaged economy.
The good news is that the family courts are well aware of the situation facing litigants compromised by COVID-19, and the judges and lawyers are working together in many counties to figure out how best to address the legal landscape when our public health crisis begins to ease. Collectively, we have a unique opportunity to refresh the existing courtroom construct. “Business as usual” is not likely to be a useful solution once the floodgates have opened, and our courts understand this new reality.
Court calendars will likely be expanded for the foreseeable future in an effort to get the system back on track, which will necessarily require the system to work even harder than it has in the past to process paperwork efficiently, to interface with parties and lawyers effectively, and to ensure that the demands of our families working in the system are properly addressed in a timely and impactful way.
So where do we go from here, exactly? I do believe that the system is resilient and will eventually return to some sense of “normal,” although how it must evolve in order to handle the coming crush of cases may (hopefully) result in permanent changes to how the courts do business. Likely outgrowths of the pandemic – and welcome additions to the tools available to our judges and court staff – may include:
- increasing remote access to hearings and/or trials;
- developing electronic filing in a system known for clinging to physical paperwork, and;
- creating new procedures to ensure that every litigant is treated fairly within a reasonable time.
Relief is coming, but until it does, patience is the order of the day. So hang in there as best you can, and take what comfort there is in the knowledge that the crisis will eventually ease and the courts will once again be open.
And if you just cannot wait that long, divorcing couples may find common ground by rethinking the courtroom construct and reconsidering the available alternatives to traditional litigation, such as:
- private settlement conferences
- private judges
- certain forms of arbitration
Though COVID-19 has definitely impacted all of these options, they may provide more immediate relief, particularly if your matter is primarily a financial one.
Attorney NEIL FORESTER is designated by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. With 16+ years of settlements and family court appearances, he brings expertise and experience to couples going through life-changing legal events. From adoptions and prenups, to divorce and co-parenting, to remarriage and blending families, Neil offers solutions to fit cases of all sizes. Learn more at foresterfamilylaw.com.
This information is general in nature and should not be construed as legal advice.