Covid 19 and Family Law

COVID-19 and Social Distancing Rules

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread. Johns Hopkins University created a COVID-19 map that tracks the number of cases worldwide. On March 20 there were 254,000 total cases and 14,250 in the U.S.. As of April 3—just two weeks later—confirmed cases exploded to over 1,080,000 worldwide and 266,671 in the U.S..

The COVID-19 outbreak has affected every aspect of American life—from school, work, and travel to how we buy groceries and toiletries. Medical experts agree that social distancing is one way we can help slow the spread of this virus.

All across the country, local and state governments are shutting down schools and businesses and asking the public to stay home. On March 19, California Governor Gavin Newsom issued a statewide shelter-in-place order —the first and the most restrictive of its kind. Under this order, 40 million Californians must stay home, except for when they leave to meet essential needs.

Today, most states have issued similar orders—316 million people in at least 42 states, 9 citiesthe District of Columbia and Puerto Rico are being urged or ordered to stay home.

Within a family unit, creating an effective social distancing plan can be as simple as adopting rules for parents and children to follow within their home. But for divorced or separated parents, staying healthy when children are going back and forth between two households can be challenging.

How do Social Distancing Rules Affect Custody Arrangements?

The social distancing and shelter-in-place (SIP) rules don’t directly affect custody orders, so you should continue following your current custody arrangement unless you and your ex agree to an alternative plan or a judge changes your order.

Courts are making it clear that denying visitation during this time won’t be tolerated and may result in contempt of court and sanctions.

But some parents might have valid concerns which could justify a temporary change to custody, such as:

  • your ex has been exposed to someone with confirmed COVID-19
  • you ex is exhibiting symptoms of COVID-19
  • your ex has a high-risk job and is frequently exposed to COVID-19, or
  • your child is high-risk for COVID-19.

Children and COVID-19

According to medical experts, COVID-19 is highly contagious and can cause severe respiratory complications, especially in people with asthma. And despite signs that children are fending off the virus well, experts caution that children with underlying chronic health conditions should still be considered high-risk for developing complications from COVID-19. “Infants and children who are immunocompromised/suppressed or have other cardiac, metabolic, or respiratory problems are also at higher risk of complications from COVID-19, just as they would be from other infections.”

If your child has asthma, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.

Legal Advice and Emergency Custody Orders

If you believe that sending your child to your ex’s home could pose a risk to your child’s health, you can ask your ex to agree to a temporary change to custody, and propose alternatives such as:

  • temporarily postponing in-person visits for a period of time (depending on what your child’s doctor says) and scheduling make-up visits for a later date
  • scheduling daily phone calls and/or “virtual visits” using FaceTime or Zoom
  • keeping in touch by sending letters, cards, and text messages.

But what happens when parents can’t agree? If you can’t resolve these issues on your own, you should contact a local family law attorney or mediator for advice—most family law attorneys are still working and available for consultations by phone or via virtual meeting services, like Zoom. You can also check your local or state court websites, as they are beginning to issue guidance on custody issues.

If your child’s health is truly at risk, you may want to ask a judge to intervene. You or your attorney may be able to obtain an emergency temporary child custody order from your local family court.

There are no universal rules for family law courts to follow across the country, so custody disputes in the time of COVID-19 are uncharted territory for divorced or separated parents and family law attorneys.

Some family law courts have explicitly stated that families should continue following custody schedules, even if they’re under a shelter-in-place order—these courts won’t modify custody except in extreme cases. For example, the San Francisco Superior Court Unified Family Court issued a Notice of Emergency Family Court Operations, which states: “ex parte requests to change child custody or visitation orders will not be granted absent a very strong factual showing of imminent danger or severe detriment to the child.” In other words, you must show a high risk to your child.

If, for example, one parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent has been exposed to someone with confirmed COVID-19, a judge may find that it’s in the child’s best interests to modify visits for a short period of time and schedule make-up visits for a later date.

Other courts are at the opposite end of the spectrum. According to the state district court in Davidson County, Tennessee 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 shelter-in-place order is lifted.

Most federal and state courthouses have temporarily closed for nonessential cases in order to slow the spread of COVID-19. Check with your attorney or local court website to see if your courthouse remains open for emergency family law requests. As COVID-19 continues to spread and courts simultaneously try to serve the public, notices and policies will be revised frequently.

(This article was written by Lina Guillen, Attorney and posted to Nolo.com) Read more at https://www.nolo.com/legal-encyclopedia/how-to-handle-child-custody-and-visitation-during-the-covid-19-outbreak.html

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Covid 19 Court Help Line

During the Governor’s daily Coronavirus update from the State House On Thursday, April 9, Lt. Gov. Karyn Polito talked about the Trial Court’s Help Line. Launched on April 2, the Help Line has already received hundreds of calls. Members of the public can call the Help Line to ask general questions about their civil and criminal cases and get help navigating the court system while courthouses are closed to the public except for remote handling of emergency matters. The Help Line is staffed from 8:30 a.m. to 4:30 p.m., Monday through Friday, and can be reached by calling 1-833-91COURT.

On April 1, the state court system launched Twitter handle @MACourts. Follow to keep up with current information and updates on court news and events.

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Covid 19 Stimulus and Child Support

On Friday, March 27, 2020, President Trump signed a $2 trillion coronavirus relief package. This package includes cash payments to people and families. According to the White House, owing back taxes and/or other debts to the U.S. government will NOT disqualify a family/individual from receiving a check. However, Americans who are overdue on child support could see their cash payments reduced or eliminated. The legislation “turns off nearly all administrative offsets that ordinarily may reduce tax refunds for individuals who have past tax debts, or who are behind on other payments to federal or state governments, including student loan payments,” “The only administrative offset that will be enforced applies to those who have past due child support payments that the states have reported to the Treasury Department,” he continued.

The funds should start going out within the next three weeks. Individuals making less than $99,000 and couples earning up to $198,000 will receive a one-time payment of $1,200 with an additional $500 per dependent child.

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COVID-19 and Staying at Home

As of today, March 23, 2020, Massachusetts Governor Baker has issued at “stay at home” advisory. This means that all non-essential businesses must close until April 7. For some, “home” may not be the safest place to be. For victims of sexual assault and/or domestic violence, “social distancing” can be potentially dangerous. If this sounds like your situation or the situation of a loved one, check out the recent Boston Globe article below for your options and know…you are not alone.

https://www.bostonglobe.com/2020/03/19/opinion/when-home-isnt-safest-place-be/

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Is it Better to Litigate or Settle?

The concept of divorce will be familiar to most if not all parties but, even though you’re familiar with it, you may not necessarily understand how the divorce process works. Without learning more about the process, you won’t be able to make an informed decision about whether to litigate in court or settle your divorce without court.

Divorces will be different in each circumstance, so you can’t necessarily go off experiences from other people. While some cases can be relatively simple, other couples don’t have it so easy.

Depending on the extent of the divorce and how complicated it is, it can sometimes last months or years, with plenty of legal professionals being involved in the process.

Your divorce attorney isn’t the only one that’s included in some cases, there are also real estate experts, accountants, consultants, etc. who will specialize for each part of the divorce. There’s all this before a settlement is negotiated and how long this takes is dependent on how willing both parties are to negotiate and what they want from the divorce.

We’ve yet to consider the matter of court. Would a trial be possible? Luckily, you may not have to worry about that as it’s estimated that around 90-95% of divorces rarely get to the point of court proceedings. However, if there comes a point where neither side is agreeing on a settlement and there have been several rounds of negotiations, a court could be a possible option.

Should you litigate or settle your divorce? Four Questions to Help You Decide.

Ask yourself the following four questions:

1. What divorce issues do you and your partner disagree on?

If your disagreements revolve around spousal support and child custody, these can easily be resolved through expert negotiations.

However, if disagreements are more complicated than this and there’s disagreement around who should have sole custody without the other spouse visiting or whether spousal support is required these may be issues worth sorting out in the court.

Essentially, you need to work out whether the discussions could eventually come to a conclusion or whether there’s absolutely no room for negotiation whatsoever. If the negotiations are completely off the mark with what you’re arguing for, a judge may be an option for you. It’s worth noting that litigation can be expensive, especially when you have to consider that advice and fees need to be paid for litigation solicitors as well as putting in a claim in the first place. So you need to be sure that the points you’re arguing for are worth the time and effort.

2. Will the time and expense of the trial be worth it?

settle your divorceThere’s a possibility that you would lose out more time going to court and sending the divorce to trial than by agreeing to your partner’s terms. Additionally, there’s a chance that what you come out with after court may not be the as attractive compared to what your partner was initially offering.

We’re not saying that you should settle just for the sake of it, but gain an understanding of where you stand. If you feel the time and expense is worth going to trial with a strong chance of getting the right decision for you, litigation would definitely be an option for you, but if there’s any doubt you should consider settling.

3. The stress of a trial will likely affect your family – can you go through with it?

Trials can bring extreme emotional stress and, particularly if you have children. Consider whether you and the people you love should go through the stress divorce court as it’s likely to be a major emotional rollercoaster.

4. The judge won’t know you – will that be risky for your case?

Most judges are completely impartial when it comes to making a decision over divorce proceedings. So, what they hear in court will be all the information they have to go off. Whatever conclusion that the judge comes to will be the final decision unless you have a reason to file an appeal.

It’s unfortunate to think that your divorce has got to this stage but if you have no choice, you may need to go to trial rather than settle your divorce. If there’s a chance that your husband is abusive or stubborn, or that there is something they’re hiding then going to court in front of a judge may be the best option for you.

(This article was written by J on August 21, 2019 and reposted with the permission of divorcemag.com)

Is it Better to Litigate or Settle Your Divorce?

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Your Children’s Future If Your Ex Passes Away

Although you and your partner would have had your differences when filing for divorce, it would be extreme to think that you would wish the worst on them such as death.

However, it may have you wondering might happen if your ex passes away. On one hand, it would make your divorce go away but on the other hand, the support that you were receiving from them would also go away.

Because of that, it’s worth considering the options that you have to support your children.

Won’t the children automatically receive an inheritance if your ex passes away?

It’s common for divorced parents to assume that their children will receive an inheritance if their ex-partner were to pass away, but it can be dangerous to make that assumption. Even if your ex has a lot of money, you’ll have no control over what they decide to do with it – which means there’s a possibility your children could be left with no inheritance and you could be left without support.

This is why it’s important to explore all avenues in order to secure support for your children in case your ex passes away.

Securing Your Children’s Futures If Your Ex Passes Away

  1. Plan in advance

To ensure that your children’s future is secure, be sure to cover these issues during your divorce:

  • Ensure your ex maintains life insurance and has the children as beneficiaries for as long as they are required to pay child support.
  • Have your ex open a trust account in the names of your children that they can pay into regularly.
  • Ask your ex-partner to maintain the children as beneficiaries on retirement accounts for as long as they need to pay for child support.
  1. Cover all possible outcomes in your divorce documents

If you wish for either of the above to be possible options for your children, this needs to be stated clearly in your divorce documents. If it’s not stated or agreed upon between the two parties, then there is no obligation for your partner’s estate to provide child support after his/her death. Read through the divorce documents carefully to ensure that there’s a requirement for a life insurance policy and/or money set aside in a trust to cover the child support payments if your ex passes away.

  1. Check the circumstances of your ex-partner’s life insurance policy

The most practical way support can be provided if either party were to pass away is through life insurance. Your children’s financial futures can be secured if life insurance policies are maintained and premiums on the policy are paid. Including a proof requirement in the divorce judgment can reassure you that payments are being made and your children are secure financially – or better still, you should be the policy owner to ensure that the policy doesn’t lapse for any reason. The monthly premium amount can be added to the support you’ll be receiving from your ex to make sure you can afford to pay.

  1. Do your bit for your children

Although it helps to have the support of your ex-partner, you shouldn’t solely depend on their income to support your children. Consider taking out life insurance and creating a trust yourself, even if you don’t earn as much as your ex-partner.

You should consider making a will – or changing your will, if the most recent one was made before your divorce – to support those you love the most. To ensure that your will is written correctly, you can retain a Trusts and Estates attorney (known as will writing solicitors in the UK) who can help you step by step in the will-writing process.

Going through a divorce is hard, but dealing with a death can be even harder. There’s never anything wrong with planning ahead and getting the foundations sorted for any possibility that can occur. Exploring all these possibilities during your divorce will be the best way forward. Complications are less likely to arise if they’re addressed sooner rather than later.

( This article was  and published on July 24, 2019)

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Pre-Marital Business Becomes Martial Property

Generally, marital property is property acquired
by either spouse during the marriage. On the other hand, premarital property, owned by a spouse before the marriage, is considered separate property and isn’t split up during a divorce.

Sometimes the lines get blurred, especially if you don’t keep your separate property truly separate, as a South Carolina case demonstrates.

In that case, a husband formed a business before marrying his wife. Several years before they got married, the wife, who was a family friend at the time, loaned him money for the company and left college to

work for the company.
After filing for the divorce, the wife sought to share

in assets related to the business. According to the wife, she assisted her husband with the company while they were married, working without pay, and her husband held her out as an equal partner. She said she also obtained loans for the business and invested in it.

A divorce judge said this was enough to “transmute” the business to marital property. An appeals court agreed, upholding the judgment. Now, the business will be included in the marital estate and the wife will be entitled to her share.

(This article was published as part of the Legal Matters Family Law Summer 2019 newsletter)

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What is Child Support Actually For?

The purpose of Child Support is to protect children from the economic impact a divorce, which can affect their standard of living. Child Support is for basic needs that will give the child the same quality of life that the child enjoyed throughout the marriage. This covers typically necessary things such as shelter, groceries, and clothes. That being said there

Child support does not specifically include the following:

  • monies owned for a parent’s share of child’s medical expenses;
  • Percentage of tuition for private school or college
  • Extracurricular activities

While a parent may not be automatically liable for some portion of these costs, if the children were already creating or were expected to develop these sorts of expenses at the time of their parents’ split, it’s difficult to argue that a parent shouldn’t continue to be responsible for some portion of this expense if she or he can afford to help.

A divorcing parent may not be automatically liable for a share of the above cots, however; if the child already incurred these expenses and was anticipating occurring before the parent’s divorce, it’s a tough argument to say that the non-custodial parent should not continue to be responsible for these expenses.

Things like daycare, extracurriculars, medical, and college expenses are addresses as separate parts of the divorcing couple’s separation agreement. This avoids one parent’s refusal to contribute to extracurriculars by saying “this is what I pay child support for,” when that is not necessarily the case. This does not mean that the primary parent is allowed to sign up for the child(ren) for expenses extracurriculars without consulting the other parent. The court will take a “common sense” approach and look at the situation and decide what would be in the child(ren)’s best interest. This is why the language in a separation agreement, addressing these issues, is of vital importance. If the wording simply says “both parents have to agree” one parent could simply say “I don’t agree” to everything and then the issue would have to go back to court. Separation agreements are of the utmost significance as they can cause more harm than good down the line if not worded and appropriately addressed to meet the couple’s needs. That’s everyone needs to consult an attorney experienced in this field who can give their case the individualized attention to find out what needs to be addressed.

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Mandatory Parent Education Programs

Many people aren’t aware that the Massachusetts Probate and Family Court requires parents to complete a mandatory parent education class. This is required if you are divorcing and have minor children, even if the divorce is uncontested. This is extremely important as the Judge can choose not to enter a final Judgment of Divorce Nisi until both parents file their certificates that they receive after completion of the 5hour class (which is usually spread into two 2.5 hour classes over the course of a couple evenings). The class is $80.00 and divorcing parents must attend separate classes from each other. Most clients find that the class is not overwhelming as it is just designed to educate parents on how divorce affects children as well as offer tips to make co-parenting easier. You are required to attend the class within 30 days of being notified about it. We advise our clients to get it over with quickly in order to avoid any possible conflicts or sanctions for noncompliance down the line.

Below is the information for approved Parent Education Programs in Essex County:

Divorce Workshops, LLC
Divorce and Its Impact on Children’s Development
374 Broadway
Lynn, MA
978-907-3084
Contact: Dina Guay
www.divorceworkshops.org

Divorce Workshops, LLC
Divorce and Its Impact on Children’s Development
385 Essex St
Salem, MA
978-907-3084
Contact: Dina Guay
www.divorceworkshops.org

Parent Education and Custody Effectiveness (PEACE)
North Shore Counseling Center
900 Cummings Center, Suite 324-S
Beverly, MA
978-922-2280
Contact: Reception Desk
Lynn Huber, LICSW
Program Director for Parent Education
www.nscc-inc.com

Family Healthy Choices Parenting Education
Peabody Inst. Library (Danvers Town Library)
Gordon Room
15 Sylvan Street
Danvers, MA 
978-887-6342
Contact: Jill Levine
www.familyhealthychoices.org

Putting Children First
Family Service of Merrimack Valley
Merrimack College (McQuade Library)
North Andover, MA
978-327-6650
Contact: Rosey Gonzalez
www.fsmv.org

Family Healthy Choices Parenting Education
Newburyport High School, Classroom 310
214 High Street
Newburyport, MA 
978-887-6342
Contact: Jill Levine
www.familyhealthychoices.org

Positive Co-Parenting in Difficult Times
Psychotherapy Associates of North Reading
Northern Essex Community College
100 Elliot Street
Haverhill, MA
978-664-2566, ext. 5
Contact: Dr. Donna Whipple
www.panr.net

Reducing the Effects of Divorce (Spanish & English)
CO-PEtrainings
Cambridge College
280 Merrimack Street
Entrance North B, 5th Floor, Suite 502
Lawrence, MA  01843
978-266-0234
Contact: Arthur Baxter
www.copetrainings.com

Please visit https://www.mass.gov/service-details/parent-education-programs for the list of programs in other counties throughout Massachusetts.

 

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Recent Child Support Guideline Changes

6 months ago (September 2017), Massachusetts substantially changed the game of family court and enacted the new Massachusetts Child Support Guidelines. These adjusted guidelines supersede all previous versions and bring with them some major changes. Some of the notable adjustments that are most likely to affect the average person are:

  • Daycare Expenses: The guidelines now take the expenses of Child Care and Health Insurance into much larger consideration.
  • Parenting Time: The prior guidelines consisted of three categories of parenting time (a basic formula, a formula for when the parties shared equal parenting time, and a separate formula for when one parent had more than 1/3 but less than 50/50 parenting time). The new guidelines simplified this was leaving us with only two possible formula; when the parents have equal parenting time when they do not.
  • Child Support for Children over 18: Child Support was always confusing for children that were no longer minors. If a child is is over 18, but still principally dependent on the parent, a parent could still receive child support. That is even true for children up to the age of 23 if they were full-time students. The new guidelines have implemented a 25% reduction in the amount of child support paid for children are over the age of 18.

 

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