Alert05.28.2020

Navigating Divorce and Child Custody Arrangements Without the Courts During COVID-19

by Jill D. Bicks

A May 8, 2020 New York Times headline proclaimed, “The Pandemic has Slowed the Divorce Process.  Here’s What to Expect.” 

A litany of nightmares follows -- inability to commence the process, ongoing cases at a standstill, incomes plunging while divorce costs soar as delays abound with no end in sight.  This is the new COVID-19 reality.  In Connecticut, and around the world, divorced and divorcing parents are finding themselves stuck. Courts largely are closed or operating at reduced hours and capacity, as families are dealing with staggering new pressures such as income instability, asset declines, agreeing on safety measures for children or managing custody schedules thrown into chaos.

Is there another way forward for these families? 

The answer is a resounding, “YES!”  Process options other than the court-based litigation approach to divorce have been around for decades.  These options help families navigate divorce and post-divorce support and child custody arrangements without having to go to court.

What are these options and how do they work? 

  • The most commonly known option is Mediation. A neutral attorney, sometimes co-mediating with a mental health professional or financial professional, helps the couple explore options and create a resolution that works for the family. This process works well for couples with reasonably good communication and the ability to see the other’s perspective to reach compromises.
  • Less well known, but especially effective, is a process called Collaborative Divorce. This option is designed for couples that could benefit from more support in their negotiations.  It is a team approach to divorce where each spouse is represented by his and her own attorney and brings together the expertise of a neutral mental health professional and a financial professional, all specially trained in the model.  The collaborative team is better able to manage the poor communication that often exists between a divorced or divorcing couple, reduces conflict and creates efficiencies.  This often leads to a more creative and durable resolution than what a litigated outcome can provide.

Without a Judge controlling things, do these processes protect clients’ interests and those of the children?

This is a common fear.  People worried about their future, and their children’s future, want protection and think that the court system provides it.  The reality is quite different, particularly now.  Even before COVID19 struck, the court system was overburdened, inefficient and costly.  Upwards of 95% of litigants settled their cases before trial, often having spent fruitless hours and many thousands of dollars waiting in courthouses and fighting over preliminary issues such as document disclosure and temporary support and parenting schedules.   Many people never see the judge until the divorce is complete and the judge merely approves an agreement.  COVID19 has exposed the frailties of the adversarial system of divorce like never before, because the courthouse is quite literally closed for most litigants.

A better path forward for families:

What couples about to embark on a divorce usually fail to understand is that a divorce is a transition, not an end, from one type of family unit to another post-divorce family unit.  Spouses will be connected forever if they have children together, and even if a couple has no children or children are grown, financial connection may continue for years following the divorce.  The traditional adversarial model of litigation was not designed for families and often does not protect children.  This pandemic presents an extraordinary challenge, but also an opportunity to use an out-of-court process to resolve divorce and post-divorce issues, and thereby set divorcing families on a path to a better future.

Jill Bicks practiced for years as a civil and family litigator and also ran a program in juvenile court advocating for children in foster care.  Her practice now emphasizes mediation and collaborative divorce.  Jill is a founding member of the Collaborative Divorce Professionals of Fairfield County, a member of the Connecticut Counsel of Non-Adversarial Divorce (CCND) www.gooddivorce.com, and the International Academy of Collaborative Professionals (IACP) www.collaborativepractice.comJill can be reached at Jbicks@pullcom.com.

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