Covid has altered society and family law is not immune to its effects. Yet, there are ways to limit the harm COVID-related issues will have on your family law case. Here are two:
- For custody and visitation issues (if possible) make an agreement with the other parent:
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- Delays, delays, delays. In California, civil cases are of secondary priority in terms of available trial time and judges. Criminal defendants have a “right to a speedy trial,” civil litigants do not. Courthouses in California struggle to find free time on judges’ calendars to hear all the cases postponed due to COVID restrictions. Even in those counties now allowing live trials (which may stop again due to Omicron) there are many criminal and civil matters waiting to be heard. Each county has a limited number of judges and courtrooms—and the available time for trials or hearings with witnesses is difficult to find. For example, in a neighboring county only one judge hears family law matters. That judge is only now setting family law trials for June.
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- Other than domestic violence restraining order matters, which are heard first when there is an opening in a courtroom for civil matters, most family law cases end up near “the bottom of the stack.” Civil cases that are not family law often have hard deadlines for completion, so they are given available courtroom space for trials and hearings before family law matters.
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- Even family law cases have a hierarchy of importance. Custody and visitation cases get the first available time, while purely financial matters such as support, attorney’s fees, and division of assets and debts (in other words your plain vanilla divorce) must wait until those matters are heard.
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- What does this mean for your family law matter? It means that you may be following “temporary” custody orders (set either by agreement of the parties or after a very short, no witness hearing on a crowded calendar where the judge might have ten minutes to hear your case) for a long, long time before the court hears your final trial. And if you are waiting to have assets and debts divided or have other purely financial issues waiting to be addressed, you will wait even longer before your matter is heard. (Keep in mind that even when you get a trial or hearing date, it may be lost to a greater priority matter. It is not unusual to appear in court, ready to try your case, only to learn the judge gave your hearing time to a higher priority matter. In at least one case we have been trying to complete a divorce trial (where custody is already decided) for well over a year because our court time has changed no less than three times.
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- How can you lessen the impact of these delays? If possible, make an agreement with the other parent about how things will work while you wait for a judge to hear your case. California requires that you attend mediation and try to resolve custody and visitation issues before you see a judge. Any agreement is better than endless arguments over who has the kids while you wait endlessly for a judge to clear his/her schedule.
- For financial issues, don’t breach your fiduciary duties:
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- Understand that it might be far longer than a year before a judge rules on who can keep what assets and who will pay what debts. (One recent case of ours took five years to get to trial.) California law says you may be penalized for breaching your fiduciary duties to the other spouse (and be forced to pay their attorney’s fees or lose your part of some asset) if you spend, or mortgage, otherwise financially change, the marital community property before the final judgment is made. Most people cannot go years without using the marital property and you may even need to sell off some things. You are allowed to do so if you and your spouse enter into a written agreement about these financial matters. Why risk financial ruin or violating your fiduciary duties? Make a deal. Keep talking to your spouse and make sure you both understand that you are not likely to have a judge resolve your disputes for some time.
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- Yes, covid has altered society and family law is not immune to its effects. Yet, if you work out your issues whenever possible, as often as possible, with the other party in your case, you will save yourself a lot of headaches—not to mention attorney’s time (and fees). In fact, this is good advice to follow even in non-COVID times.
