As a general rule, a party can file for divorce at any time so long as the marriage is irretrievably broken.1 After a divorce is final, a party may move to modify custody at any time but has to show a substantial change in circumstance to prevail. Equally, a party may file a request to modify child support at any time, but evidentiary requirements are different if the support has been modified within a year or after. That said, everyone knows the Coronavirus has crippled most all facets of our society and it impacts the court. This blog explores filing divorce and modification of custody and/or child support during the Coronavirus.
With regard to filing for divorce (or legal separation), filing is done in most counties by electronic filing. This means you do not have to wait to hire an attorney to get your divorce filed if now is the right time. The attorney does not have to take your petition to a “closed” clerk’s office or mail the same. In fact, unless a preliminary hearing is necessary (to decide temporary custody and who drives what car, for example), most litigants will never even enter the courtroom. Most cases settle in mediation. So, in reality, the Coronavirus is unlikely to prevent you from filing for a divorce. About the only limitation you may have is physically meeting with the counsel you select to file your divorce. However, most family law attorneys are equipped with video conferencing—and there is always the phone consultation. Thus, the Coronavirus has little impact on filing for divorce if this is your circumstance. The courts too are open but limiting in-court hearings in some cases. Finally, if you ultimately cannot agree to resolve your case, it will be sixty (60) days before the court can have a final hearing by statute and by this time the projections are that the Coronavirus will be contained and courts (and attorneys) returning to more traditional hours and ways of operating.
A modification of custody and/or modification of child support is equally able to be filed at this point. It is likely it will take an attorney a bit of time to learn your case and prepare a custody modification petition anyway, so the sooner you start, the faster you can get into court (even if it is by video court). In any event, the courts are taking emergency modification requests and acting on them, such as if domestic violence occurred in the home or a party loses a job due to the economy and needs a child support modification. In fact, it is key to file an emergency motion to modify child support because the court can only retroactively modify support back to the date of filing. So you must file as soon as you lose your job or you may wind up with a large support arrearage. While it may be strange having a hearing by teleconference or being in the courtroom with social distancing, courts are equipped to handle emergencies that impact the child’s well-being and best interests.
This blog was written by attorneys at Dixon & Moseley, P.C. to provide litigants with some general guidance on how to handle domestic matters in the middle of the Coronavirus. Ultimately, family law attorneys and courts have adapted to COVID-19 and are prepared to assist you with your family law needs. This blog is written for general educational purposes only and is not intended as legal advice or a solicitation for services. This blog is an advertisement.
- There are other requirements, such as residency, but these are beyond the scope of this blog.
