Introduction
I know it's been a long time since my last blog post (for those who are curious, I did a post back in October of 2016 noting that my posting rate was going to drop dramatically, though I don't think I anticipated even then how dramatically), but for those who haven't noticed there's a bit of a crisis going on in the world, and it affects just about every aspect of life. Family law situations are included. In the past week, I and many other family law attorneys have been bombarded with questions. It struck me that a blog post was warranted.
This blog post is going to have two parts. In the first part, I will give a brief explanation of what the Coronavirus outbreak means for the legal system in Virginia. In the second part, I will address four of the most frequently asked questions I am seeing. I hope that this post can relieve at least a little anxiety during this difficult time.
Impact of COVID-19 on Virginia Legal System
On March 16, 2020, the Virginia Supreme Court declared a judicial emergency in all trial courts in Virginia. One of the main impacts of this declaration is that no "non-essential" and "non-emergency" trials or hearings will be held. What this means as a practical matter is that the only criminal cases that will be heard involve cases where the defendant is currently incarcerated (rather than out on bond), and the only civil matters will be emergency type matters - protective orders, emergency custody/visitation matters (for example, parental kidnapping), civil commitments, etc. Of some note, eviction proceedings currently appear to not be considered "essential" or "emergency" matters - as a result, while no official order has been given to stop evictions during the pandemic, evictions will be a practical impossibility due to courts not hearing the cases (and self-help being prohibited for residential evictions in Virginia).
Now it's important to understand that this is aimed at keeping people out of the courthouse. The courts themselves are not closed. There is plenty of non-essential, non-emergency business that can go on - just not if a hearing is required. You have an uncontested divorce? You can still submit the paperwork and get it finalized. You need to get a lawsuit started? You can still file it and have it served. The court is operating, it's just limiting its requirements for appearances in person. Further, filing things in person in court is still allowed, but discouraged. Courthouse security has been ordered to disburse any large gatherings - as a result, you are encouraged to mail any filings you have to the court or call the clerk's office and see if they have a preferred alternate procedure (some courts are adopting outdoor drop-boxes, for example).
Further, during the judicial emergency all deadlines are being tolled. There's some debate about exactly what that means, but at a minimum, it means if you have a trial court deadline (say, to file an Answer, respond to discovery, etc.) which is due during the emergency period, at a minimum it is now not due until after the emergency is done. That said, it's always best to meet your original deadlines if possible.
Finally, the judicial emergency by law can only last up to three weeks, so this one is set to expire on April 6th. However, the Virginia Supreme Court is allowed to renew the emergency, and I will be shocked if that does not happen.
Now, you may note that all of this is for trial courts. No judicial emergency has been declared in our appellate courts (Court of Appeals and Virginia Supreme Court). All deadlines there remain the same. However, the Court of Appeals has now requested that all filings (as opposed to just briefs and appendices, which had previously been the rule) be made electronically, and oral arguments will be done by phone through at least the end of June. The Virginia Supreme Court has made no changes so far except moving their upcoming slate of oral arguments to being by phone.
If you have a current court case going on, I would strongly recommend reaching out to your attorney and asking how all of this impacts your case.
Now, with that brief summary out of the way, the family law questions I'm seeing a lot of:
My business has closed due to the outbreak and I'm making no money - do I still have to pay spousal/child support?
The short answer is yes. The court order requiring your payment remains in full effect. Now, first of all, if eligible, you should immediately pursue unemployment (some states have waived the waiting periods and increased payouts already) and/or the new emergency sick leave policies, but it's possible you won't be eligible for one or both of those. Otherwise, I'd suggest you consider the same options I suggested for government employees during a shutdown. There is one big problem with that list, though. Option 2 - filing a motion to modify and getting a pendente lite hearing ASAP - is not available. A pendente lite support hearing is unlikely to be considered essential or an emergency. That said, option 4 is, while not necessarily advisable, at least slightly less dangerous in this situation. Why? Unless your failure to pay support is leaving the other party destitute, a contempt proceeding for failure to comply is also unlikely to be considered essential or an emergency. This means that by the time you could realistically have a contempt proceeding brought to court, you will likely have income again, and be able to get yourself out of the contempt. This is in no way a guarantee, however, so you should tread carefully.
Option 1, trying to reach an agreement, is always the best answer. If you can't do that, then option 3, sucking it up and paying, is your best bet as long as possible. Regardless of what you do, however, you should still consider filing and serving a motion to modify immediately. This would allow the court to potentially make some retroactive modifications to your support obligation once the dust settles to take into account the difficulties you are encountering now. However, the court can only go back as far as the date you filed and served your motion, so the longer you wait to do that, the less retroactive modification will be possible. You should speak with an attorney (over the phone - not in person!) as soon as possible.
I don't trust my child's father to be practicing proper social distancing - do I still have to let him have his visitation?
This is a little tricky. A court order is a court order, and you are expected to follow it. If, however, you believe allowing the other parent to have visitation actually endangers the child, or anyone the child comes in contact with (maybe the other parent is not taking social distancing seriously, maybe they're three states away and visitation violates CDC's travel advisories, etc.) it is very likely that the court will say this is an emergency matter, and will allow you to make a motion to suspend visitation for the time being. As a result, you should contact your attorney right away if you are in this situation.
The reason it is so important to be proactive is that withholding visitation will, very likely, also be seen as an emergency in many courts, which means you could be brought up for contempt fairly quickly. Moreover, there is a decent possibilities some police departments will forcibly enforce the existing court order. As a result, if this is a real concern you have, you should definitely take action first - do not simply unilaterally withhold visitation.
My ex agreed to let me stop paying support until I get back to work - what do we need to do to enforce that?
Court ordered support cannot be waived or reduced without a court order. If your ex has agreed to a temporary modification, that's wonderful, but you still need to convert that agreement into a court order. Talk to your attorney and get an agreed order drafted up. Once signed by everyone, it can be submitted to the court and will become fully enforceable once entered by a judge. Again, courts are not closed, and an agreed order does not require a hearing, so this is something that can be done even during the judicial emergency.
My wife and I are separated in contemplation of divorce, but she's been staying with her elderly parents who are at high risk from COVID-19. We'd both feel better if she was back home and not around them - can I let her move back in without restarting our separation clock?
One of the painful realities of family law is that generosity and good intentions can often backfire if you aren't careful. This kind of situation can be ok, but you have to be very careful about how you do it. Read up on how separations are lost and separation under the same roof so you can take the precautions necessary. Pay particular attention to the fact that you need an adult witness to testify to your continued separation - this may be difficult during the social distancing period. However, if you get that squared away, you should be able to do it.
Conclusion
The current Coronavirus outbreak is impacting all aspects of life - including our legal system generally and family law specifically. If you are involved in a family law matter and are concerned about how all of this impacts you, please review our initial consultation policy, and if you qualify feel free to give us a call at (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to 30 minutes! Please note that we are not accepting in-person consultations until the current crisis passes - all consultations will be by phone or e-mail until then.
