As divorcing spouses recognize the suffering and sadness, worry and anxiety in each other due to the COVID-19 pandemic, we can begin to talk openly about fair and good resolutions of divorce cases. But could COVID-19 actually lead to more divorce settlements with less family suffering?
Today a friend told me he was optimistic. Another told me he was hopeless. For my own part, I have been painfully closer to hopelessness than to optimism these last couple of weeks. I have meditated each morning with positive effects; it is probably the only thing keeping me from plunging into the pit of despair. I pressed my optimistic friend on his outlook, and he said he believed in the American spirit and that as a nation we would rise again. His confidence struck me and forced me to consider how a divorce lawyer could be optimistic during such dire times? After all, we divorce lawyers are rarely optimistic creatures.
I spoke later in the day with a client who is a well-known music producer. She and her husband have been deeply stressed about their marriage for several months, both wanting to get divorced and both wanting to preserve their assets. It is not a complicated divorce in terms of the division of assets, but the existential questions being asked by both have made it more complex: “Where will each of us live? How will we finish our residential lease? How will we share the dogs (there are no kids in this marriage)?”
These questions boil down to the following: “What will my life look like when this is over?”
These types of questions produce tremendous anxiety in both parties, anxiety that could often be resolved with simple gestures that neither party is willing to make. Statements like: “I will make sure you are not left homeless” or “I can’t take care of you forever, but I promise to support you the next few months until you get on your feet” are difficult to come by when people are angry and hurt about the breakup of their marriage. In many instances, angry spouses are spouses looking for a bit of reassurance, and once receiving it they may settle for a very different outcome than the law requires. This is especially the case today when facing the prospect of death from a pandemic. People’s priorities change.
COVID-19 – More Divorce Settlements with Less Family Suffering
Two weeks ago the above couple wanted an unreasonable outcome – well outside any range of normal or expected outcomes in a divorce trial. Both spouses were angry, and neither was willing to recognize the anxiety being experienced by the other. This is a terrible platform from which to begin a negotiation and, normally, I would not even try to do so. Yet, ironically, a silver lining has appeared as a result of the current quarantine situation. When I spoke to my client today, she said that in the intervening two weeks the couple had had a COVID-19 scare in the home, and her husband had been very sick. She was trying to stay quarantined from him while also taking care of him and, of course, they were both worrying that she might get sick herself.
All California state courthouses are closed for at least two months. That means the first date that anyone will see a courtroom is in June 2020 and there will be a huge backlog of cases stacking up from early March when the courthouses first closed. This means there will be at least five months’ worth of cases being ready to be heard in June, plus whatever the marital COVID-19 quarantine pressure cooker cooks up for the family law bar by then; with increased financial pressures, stay at home orders, unemployment and having the kids at home all day, every day, the family law bar expects an explosion of divorce cases, including a good deal of domestic violence cases that will take all the Court’s initial priority.
My client and I discussed all these things today and it led us down a different road than we were expecting. I suggested that the three of us sit down and just talk out what anxieties each party is holding and see if we can get to a resolution that would involve reducing some of those. Using the backdrop of court closures and the prospect of the divorce dragging on for an additional year or more, as well as the feelings of shared humanity, I am optimistic that we have an opening for settlement discussion.
Recognizing Shared Vulnerability/Humanity + Court Backlogs = More Divorce Settlements with Less Family Suffering
I am also optimistic that this vulnerability and recognition of humanity in the soon-to-be-ex is not limited to this couple or even to people who get sick. Instead, I believe that this sense of vulnerability and shared humanity comes from any experience of tragedy or loss and is particularly true in the face of a collective shared tragedy like 9/11, Hurricane Katrina, or the COVID-19 pandemic. Recognizing the existence of the other – their suffering and sadness, worry and anxiety – we can begin to talk openly about fair and good resolutions of divorce cases.
The COVID-19 pandemic is as completely novel for divorce lawyers as it is for physicians and mental health professionals. We were not trained to deal with a world with no courthouses or trials. We have huge backups happening in the legal system and I would expect that divorce cases will take a year longer than normal to resolve. I think the combined shared anxiety and astoundingly long wait times from Courts will provide a golden opportunity to settle cases quickly with an eye toward helping resolve anxieties about the future that too often stymie our ability to broker reasonable agreements.
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