Manage Your Divorce Expectations

Manage Your Divorce Expectations

Our routines may have stalled during Covid, but the desire to divorce certainly hasn’t. Here, some of the pandemic-age challenges to consider.

This article was written and published by the NY Times.

When the New York divorce courts reopened in June after a nearly three-month closure, the lawyer Nancy Chemtob said she began waking up at 3 a.m. to handle all of the clients who wanted out of their marriages. And the calls and texts didn’t let up between Thanksgiving and New Year’s, traditionally a slow period in the divorce business, as people would hang on for year-end bonuses or the last family vacation before filing.

“There was nothing to wait for anymore,” said Ms. Chemtob, who represented the designer Mary-Kate Olsen in her pandemic divorce from the French banker Olivier Sarkozy.

The coronavirus crisis has inspired what seems to be a surge of divorces in the United States, a pattern also seen in China, Britain and Sweden. There are the expected reasons, such as increased domestic pressures and upended routines that may have once masked marriage problems. And there are the less obvious ones, like the bread-winning spouse who toyed with the idea of divorce now moving forward because it makes financial sense. (He or she has suffered a loss in income, and so the settlement will be less.)

National statistics are not yet available, but there seems to be more work for lawyers and mediators across the board. Consultations at the Upper West Side lawyer Ken Jewell’s firm are up 48 percent, he said. People want flexibility and control in these times of uncertainty,” said Andrea Vacca, a lawyer who is the immediate past president of the New York Association of Collaborative Professionals, a nonprofit that advocates collaborative divorce.

At the same time, some clients are “frozen, not wanting to initiate the divorce process when their spouse is earning less,” said Laurie Itkin, a certified divorce financial analyst in San Diego. This may help explain why an early study, which analyzed data from five states for March through September, found that rates had dropped. (The study’s authors acknowledged this was “too few states to make conclusions about national trends,” and the study did not include New York or California.)

Every divorce comes laden with its own issues, but here are some pandemic-era factors facing those wondering whether to stay or go.

There are new minefields to navigate.

The pandemic hasn’t just heightened the tension in marriages. It’s also heightened the tension in divorces, changing everything from how long a divorce can drag on to how parties appear before the court (virtual backgrounds are frowned upon, because a judge needs to be able to see who else might be in the room) and how they consult with therapists, lawyers and real estate agents, because there’s so little privacy with everyone at home.

“I was ducking onto the back deck in my shirt sleeves in 20-degree weather and having therapy sessions drowned out by traffic noise,” said Jeff Higgins, 58, of Guilford, Conn. Mr. Higgins, who has been married for 32 years, was also trying, at least initially, to hide the sale of the family home and his search for a new place to live from his 30-year-old son, who was home during the pandemic.

Of the marriage, Mr. Higgins said there had been cracks for awhile, but with three adults all cooped up in the same house, “things just got worse. There was no time away to regroup.”

Covid divorces are on the slow track.

Divorce has often been time-consuming and expensive — one survey in the United States found the average cost was $12,900 — but now once-routine parts of the proceedings, like getting a document notarized, can require heroic effort. Moving out is also fraught, especially in Los Angeles and parts of Connecticut and New Jersey, where real estate prices have risen — you may have one spouse wanting to keep the house but unable to afford to buy the other out. In New York City, where prices have plummeted, no one wants to sell the $6 million apartment when it has to be listed at $3 million, as is the case for one of Ms. Chemtob’s clients.

For a lot of wealthy New Yorkers seeking divorces, there is much fighting about the vacation home, where many families have been ensconced for months. In one of the lawyer Harriet Newman Cohen’s cases, a couple spent thousands of dollars fighting over a court order that would seal off the master bedroom in their Hamptons home so the husband couldn’t spend the night there with his girlfriend when it was his turn to see the kids.

“He wouldn’t say, ‘I won’t go in there,’ so it had to be locked off,” said Ms. Cohen, whose clients have included Gov. Andrew M. Cuomo of New York.

Delays can be more costly.

In addition to the mental toll of the waiting game, coronavirus-related delays can also add to the bill.

Jessica Wilbur, 36, of Frankfort, Maine., first filed for divorce in March 2019. The trial was rescheduled twice: First, because the courts closed for the pandemic, and again because a lawyer had possibly been exposed to the virus. Although the trial finally happened in October, she didn’t get her orders until mid-December because the judge was so backed up. The delays, Ms. Wilbur said, cost her thousands of dollars, both because she and her lawyer had to prepare for court each time, and because more issues would arise with her husband of 12 years in the interim. The divorce is still not final.

Lawyers acknowledge that although there is rarely travel time or time spent waiting around court for clients to pay for these days (almost everything is virtual and by appointment), this is offset by other costs, like hours waiting outside courthouses to file a case the electronic system won’t accept.

So many documents.
Then there’s that document notarizing, something once so simple a lawyer could do it while waiting with a client at court. Now, if clients don’t want to do it in person, it requires, at least in some states, video calls along with the document being sent back and forth via snail mail or delivery service.

“It’s a nightmare,” said Susan Rossi Cook, a lawyer in Needham, Mass. In a recent case of Ms. Cook’s, the judge agreed to waive the notary, but it didn’t save much time. The wife printed out the financial agreement, and her soon-to-be-ex-husband signed it (the couple were still living together), but their scanner couldn’t handle 28 pages at once. Eventually they sent it, in four separate emails, to the court clerk.

“It took us an hour and a half to get the document to the court, and the actual hearing was 10 minutes,” Ms. Cook said.

Settling is more attractive than ever.

Further complicating things is how difficult it can be to get on a judge’s calendar for a non-urgent matter (issues like domestic violence take priority). Besides the backlog in many courts, the video conference appointments in some states mean that judges are able to get through fewer cases than when everyone crowded into the courtroom and cases went one after another. On a recent online settlement conference, the judge told Mr. Jewell: “If you think you’re going to have your motion served anytime soon, let me show you the back of my courtroom.” The chairs where people would normally sit were all filled with stacks of motions, Mr. Jewell said.

The crush of cases means there is even more of a push to settle — pre-pandemic, some 90 percent of divorce cases didn’t go to trial. Some lawyers say that during the pandemic that figure is closer to 98 percent. There has also been an uptick in couples using the collaborative divorce process, where both parties sign an agreement that they will not end up in court.

Kathleen Bar-Tur, a mediator and licensed clinical social worker on the Upper West Side, said she has several couples who disappeared two or three years ago who have returned during the pandemic, wanting to push forward because they’ve had time to reflect. Although Ms. Bar-Tur has always liked meeting in person, taking the process online has its benefits.

“Some people are more comfortable being two boxes next to each other on a screen instead of having to sit in a room with their soon-to-be ex,” she said. (Sometimes they are sitting in rooms right next to each other.)

For couples looking to the courts for help, it may also be harder for clients to feel they have gotten a fair hearing via a video conference. Instead of passing a note to one’s lawyer to ask a question, clients have to text, but “how many screens can a lawyer look at?” said Elizabeth Lindsey, an Atlanta divorce lawyer and the president of the American Association of Matrimonial Lawyers.

There is also the more significant problem that judges can’t see body language, and nor can clients, who in the past could use it to glean information about the judge’s reaction to their position as presented by their lawyer. This can make clients wonder if the judge has fully heard them, Ms. Cook said. She also dislikes trial testimony over video conferencing, where it’s not possible to tell if a person testifying is being coached by text message. (This is not allowed, obviously, but such rules are hard to police.)

There are hearing dates for sale.

The renewed emphasis on settling has prompted a surge in the use of private judges, at least for those who can afford it. These judges, often retired from the bench, can cost $800 an hour, and one in Los Angeles who charges $20,000 a day is booked up “for months,” said Daniel Jaffe, a Los Angeles divorce lawyer for the wealthy for more than 50 years. The appeal is that clients can control the schedule and be heard by a judge who doesn’t have the pressure of other cases on the docket.

Ms. Lindsey said, “You’re paying for white-glove service.”

As Courts Reopen, Divorce Filings Are on the Rise

As Courts Reopen, Divorce Filings Are on the Rise

Whether the pandemic caused new problems or amplified old ones, divorce cases have family lawyers and judges busier than ever.

This article was written and published by the NY Times.

According to figures from the Superior Court of California, divorce filings are up significantly in Los Angeles over the last five months, as compared with the same period in 2020. And some lawyers and relationship experts say that divorce filings in New York and other states are also on the rise.

“These kinds of trends usually run parallel from state to state,” said Leslie Barbara, the chair of Davidoff Hutcher and Citron, a matrimonial law practice in New York.

Of course, it’s difficult, if not impossible, to know whether the higher rates are because more people want to get divorced or because many courtrooms were closed during the pandemic, creating a backlog.

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Though New York keeps its divorce records sealed, Ms. Barbara and several other lawyers, said they had seen enough anecdotal evidence to know that divorces seem to be on the rise almost everywhere.

David Badanes, a New York divorce lawyer, said that his office has been handling an avalanche of covid-caused divorces for more than three months.

“Since May, our business has been up by more than 20 percent,” he said.

Martha Cohen Stine, a partner with her mother, Harriet N. Cohen, in the New York law firm Cohen Stine Kapoor, said that “since April, our phones have been ringing off the hook, nonstop, and most of those calling are people who want to come in and start divorce proceedings.”

Ms. Stine added, “During the pandemic, many of these same people were experiencing marital problems and putting off splitting up for practical reasons.” And in some cases, she said that some couples were “waiting for the vaccines to be approved and to gain more social and economic stability before leaving their marriages.”

In May 2020, three months into the pandemic, Rachel Salomon, 46, who lives in Brooklyn, filed for a legal separation from her husband of 10 years, a maneuver that allows for both parties to retain the health insurance they had been sharing even though they are no longer together.

Both parties have the ability to convert their legal-separation status to divorced at any time.

Ms. Salomon who has two young children, said of her status: “I filed just before the courts closed, and my legal separation status was finalized in January 2021.”

She added, “The best part was that my ex and I each had separate time with the children, and time alone during the pandemic.”

Ms. Cohen said that the financial aspect of these post-pandemic divorces works either one or two ways.

“In one case, there might still be money to pay for the divorce, to pay for child care and for lawyers and other-related legal expenses,” she said, “But in many cases there’s less money involved for a soon-to-be-divorced couple, maybe because one of them lost their job as a direct result of the coronavirus, and now the spouse who was hanging around for that money realizes, ‘Wait, there is no money here. So why am I still here?”

Questions like these are at the heart of Lee Wilson’s work.

Mr. Wilson is a relationship expert and “breakup coach” in Nashville, who collects data from the thousands of surveys he sends to married couples.

Two months ago, 2,704 married individuals responded to Mr. Lee’s most recent survey regarding the effect on marriages from the reopenings after lockdowns. (The responding individuals were married as of June 3, 2021; the survey was completed before the most recent surge tied to the Delta variant of the coronavirus.)

Among the survey’s questions was: “Since the reopening following the lockdowns of 2020/2021 and a significant return to normal from the changes of the Covid-19 pandemic, has your marriage relationship been impacted?”

Twenty-one percent of respondents answered that the pandemic had harmed their marriage, a 10 percent increase from a survey asking the same question the year before.

“I didn’t think it would turn around this quickly and dramatically,” Mr. Lee said. “I had hoped for a better result, but I guess that was just wishful thinking.”

Ms. Barbara likened the rising number of divorces around the country to “a bursting dam.”

Ms. Barbara said the rising number of divorces could reflect marital problems that had been hidden from view for much of the last year and half. “All of the issues, all of the problems people were dealing with during the pandemic, were always there, but we didn’t see it as people were staying home at that time, and the courts were closed for months,” she said. “But now many people have been vaccinated, and things are starting to normalize.”

That return to normalcy, or at least semi-normalcy, could mean that couples are finally completing divorces they were forced to delay.

Ms. Barbara said that she has been handling Covid-related cases in which one spouse or the other has had an extramarital affair, which she called “the biggest trigger for getting divorced.”

“During the pandemic there were no places to go to in order to carry on an affair,” she said. “Hotels were closed, and no one was traveling for business or leaving their homes for that matter,” she said.

Now that things are opening up again, she noted, “we are seeing more clients getting divorced because they either caught their spouse having an affair, or they are having one themselves.”

Marilyn Chinitz, a divorce lawyer and a partner at the New York law firm Blank Rome, said that defending a divorced client in the post-pandemic era “is a lot more complicated and detailed then it used to be.”

“I’ve had to work through the kind of custody issues that did not exist before Covid-19 struck,” she said. “I mean, who could have ever thought back then that we would be hearing plaintiffs and defendants arguing over whether or not the nanny should be vaccinated, or a request that only people wearing masks could play with their children. And then there’s, ‘I do not want my child to be educated remotely — I want him or her in school.’”

Elizabeth Overstreet, a relationship expert in Raleigh, N.C., said that she has been inundated with calls from recently divorced people around the country. Whether those calls are coming from New York, California or any state in between, nearly all share a common theme.

“During the pandemic, couples took the time to re-evaluate their relationships and set their minds on reprioritizing before deciding to either stay married or get divorced,” Ms. Overstreet said.

“There’s a lot of angst out there, which is why many divorced people tell me that they are now approaching new relationships by holding potential partners to a higher level of maturity and authenticity, and that starting from the dating level, will never again ‘settle’ for just anyone.”

“Those days are over,” Ms. Overstreet added, “because no one wants to get divorced again.”

New Battle for Those on Coronavirus Front Lines: Child Custody

New Battle for Those on Coronavirus Front Lines: Child Custody

Doctors, firefighters and others who risk exposure to Covid-19 are being taken to court by ex-spouses who want to keep them away from their children.

This article was written by Megan Twohey and published by the NY Times on April 7, 2020.

Last month, Dr. Bertha Mayorquin, a New Jersey physician, told her soon-to-be ex-husband that there was a change in plans. After two weeks of providing treatment by video as a precaution against the coronavirus, she would resume seeing patients in person.

But when she left work on a Friday to pick up her two daughters for the weekend, her husband, Wendell Surdukowski, presented her with a court order granting him sole temporary custody of the young girls. His lawyer had convinced a judge that Dr. Mayorquin could expose the children, 11 and 8, to Covid-19.

The doctor, an internist, had intended to spend the weekend celebrating her younger daughter’s birthday. Instead, she spent it frantically assembling 50 pages of paperwork to try to reverse the order.

“Many people working in the hospitals — doctors, nurses, so many of us — are parents,” said Dr. Mayorquin, whose hospital had asked her to start treating non-coronavirus patients at an urgent care center to ease the burden of the pandemic. “Are our children going to be taken away from us because we are on the front lines helping people?”

That question is arising across the country as a growing number of parents have begun to withhold access to their children from former spouses or partners over fears of infection, according to families, lawyers and judges. For health care or other essential workers, the battles are infused with heightened controversy. Some say they shouldn’t be punished for doing crucial services; their counterparts argue that the jobs pose too great a risk to other family members.

“If there’s an imminent threat to the kid’s well-being, you must take action, whether that’s something like drug abuse or a virus,” Mr. Surdukowski said. “Watching the news, looking at the cases of doctors being sick, you cannot tell me that they are not at a higher risk.” Mr. Surdukowski, who has an underlying condition, had told the judge that he was also concerned about his own health.

Amid the pandemic, the landscape of family law, which varies across the country, has become more uneven, with few guidelines to address the current safety concerns. Families of medical workers aren’t the only affected. Other parents are arguing over who comes and goes from each home, whether children should be on the playground and if travel to more remote areas should be permitted.

“What we are recommending is to figure out a way for visitation to go forward, and if there’s an emergency worker, to figure out how to salvage it as best as you can,” said Susan Myres, president of the American Academy of Matrimonial Lawyers. “We can’t make those people have to sacrifice more, but how do we do that custody safely?”

Some courts have issued administrative orders addressing the coronavirus crisis. For example, the state district court in Davidson County, Tenn., said that the “primary residential parent” should take custody of the child within four hours of a shelter-in-place order and retain sole custody until the order is lifted.

The Massachusetts Probate and Family Court’s chief justice issued an open letter saying it was important that children spend time with both parents who had approved custody agreements. If a parent must self-quarantine or otherwise be restricted from contact, both parents should cooperate to allow time with children by video conference or telephone.

But those orders do not directly address what should happen when one parent is continuing to work on the front lines. The court system in New York, the epicenter of the coronavirus outbreak, has not issued any written child custody guidance at all.

“It’s not like there’s case law or clear guidance,” said Conti Moore, a lawyer who works on child custody cases in Florida. “This is unprecedented. It all boils down to: How do you co-parent in a pandemic?”

When parents do seek help from the courts, they are getting very different responses. Some courts are largely shuttered. Others are holding emergency hearings online. And one jurisdiction’s definition of emergency may not be another’s.

Last week, Tabatha Sams, a client of Ms. Moore’s who lives in a suburb of Orlando, decided she no longer felt comfortable sharing her 21-month-son with his father, Stephen Thilmony, a firefighter. He sought to assure her that he and his fiancée, an emergency room nurse, were taking the proper safety measures, including wearing personal protective equipment while at work. But Ms. Sams had watched with growing alarm as Covid-19 cases swept across the country.

Finally, she reached a breaking point. “I said, ‘I’m not comfortable with the situation,’” Ms. Sams recalled. “I can’t roll the dice.” On her lawyer’s advice, she filed an emergency motion asking a judge to grant her sole custody for the length of her state’s shelter-in-place order.

“There are still first responders sleeping in cars to stay away from their families,” Ms. Moore, the lawyer, said. “It seems only right that the child stay with the parent with the least likelihood of exposure. The courts have to deal with this.”

In a written response, Mr. Thilmony’s lawyers told the court that Ms. Sams had not cited anything specific that he was doing to put their son at risk, and that she was seeking to deny him agreed-upon time with his child after they had battled over parenting issues unrelated to the coronavirus. “The father should not be denied contact by the mother, through the emergency motion, due to his position as a firefighter,” they wrote. Mr. Thilmony declined to comment for this article.

The judge scheduled an online hearing so that both parents could attend and have adequate time to prepare. They will make their arguments on Tuesday.

In New Jersey, Mr. Surdukowski got an emergency hearing the same day his lawyer filed the motion. It was late on a Friday afternoon, and when Dr. Mayorquin’s lawyer could not be reached by phone, the judge issued the order, granting Mr. Surdukowski sole temporary custody.

Distraught at the separation from her daughters, Dr. Mayorquin immediately began preparing to get them back. She ticked off the points: She did not intend to treat patients with Covid-19. She would wear personal protective gear, and change out of her scrubs and shower immediately when she got home. But, in the end, she felt the safest course was to meet Mr. Surdukowski’s demand that she not see any patients in person.

The hospital let her retreat to her telemedicine job. As much as Dr. Mayorquin regretted not being able to do more at a time of critical need, she said she felt she had no choice. “I didn’t want to fight,” she said. “I just wanted my kids back.”

The assurance worked. The next Monday, after an online hearing, the judge reversed the order.

In Monterey County, Calif., Lisa Chu filed an emergency motion seeking sole temporary custody of the 11-year-old twins and 9-year-old son she shares with her ex-husband, Steven Biakanja, a firefighter. He would have to produce a negative result from a coronavirus test every time he was scheduled to see the children — an impossible demand, given the limited availability of screening.

Under their court-approved parenting plan, the children normally spend roughly 60 percent of the time with her, and the rest with him. But two weeks ago, Ms. Chu wanted to withhold the children from Mr. Biakanja after two fellow firefighters tested positive for Covid-19. They and others at his firehouse quarantined at home. Mr. Biakanja assured her that he would self-quarantine if he developed symptoms or had known contact with anyone infected with the virus.

But given the shared spaces in the firehouse and the possibility of asymptomatic carriers, Ms. Chu worried that her ex-husband might unwittingly transmit the virus to their children — or her elderly mother, who visits her home frequently.

“I know this is hard on everyone, but it’s a decision that we have to make,” she said.

As one week turned into two, Mr. Biakanja was increasingly angry. “This is an attack on anyone who is helping with essential needs of this country,” he said.

Then, on Monday night, the children were back with their father. The judge had denied Ms. Chu’s request for temporary custody. Unless Mr. Biakanja exhibits signs of Covid-19, the previous court order remains in place.

Megan Twohey is a Pulitzer Prize-winning investigative reporter with The New York Times. @mega2e