Divorced and Divorcing Couples Adjusting During Pandemic

Along with everything else left in its wake, the COVID-19 pandemic has created a range of ongoing financial and logistical challenges for parents and families. For many divorced and divorcing couples, these challenges have become a nightmare. Remote learning, high-risk employment, job loss and furlough, social distancing, and pandemic-related job changes have compelled many divorced and divorcing couples to consider changes to their parenting and support agreements.

Pandemic co-parenting

While some states have issued specific guidance for parenting time in the context of COVID-19, New Hampshire has not, thereby placing a higher burden on parents to try to work it out. Even when a parenting plan is cooperative and arrangements have been working well, some situations have become so stressful that goodwill is fast evaporating. With the onset of the COVID-19 pandemic, co-parents have had to negotiate a whole new set of issues — sometimes on a daily basis. For some, the established parenting plan has become untenable.

Beginning last spring, family courts across the country have seen an increasing number of emergency requests from parents alleging COVID-19 concerns. A parent might allege that their co-parent is not following safety precautions or works in a high-risk job. Perhaps one parent is interacting “too closely” with family and friends. With access to the courts at a premium and most cases being heard telephonically, the courts are struggling to address COVID-19 challenges.  Parents are encouraged to first seek mediation and work out their differences before resorting to court action.

For the most part, judges in New Hampshire have denied emergency requests unless the safety of a child is clearly at risk. Why? “COVID-19 is not a basis in itself to modify a parenting plan,” Circuit Court Administrative Judge David King told the Concord Monitor last spring. “As inconvenient as the parenting plan may be during this time, parents still must comply.”  A parent must comply with an existing parenting plan until it is changed (either by agreement or court order) or risk being held in contempt. If a parent believes that the current arrangement requires modification, that parent needs to be proactive. However, when there is clear and consistent evidence that a child is at risk, a parent can consider petitioning the court to make emergency changes to an existing plan. Such concerns may include a co-parent or member of the household being ill, having a compromised immune system, or working in an industry with a high exposure risk.  Still, the petitioner should understand that modifications to parenting plans are not easy to make and can require considerable time.

Before taking court action

As we have seen across the country, parents must keep in mind that each parent may have different views as to what constitutes pandemic safety. Parents must also remember that the pandemic will not last forever, and it is far preferable to make temporary changes to a parenting arrangement without going to court with the understanding that the old plan will go back into place at some point.

For some parents, having one parent assume primary responsibility for remote learning with some form of make-up time for the other parent makes sense. Others may need to implement virtual parenting time via the Internet (i.e., FaceTime, Zoom). Others may need to call upon grandparents to help monitor remote learning.  If a change is agreed to be temporary, the original arrangement should be restored once pandemic challenges are reduced. It is important to be clear about what adjustments are being made and to have a written agreement, preferably filed with the court, so that there is no misunderstanding. Parents and children alike need to understand and “buy into” the changes that are being made. It is also important for parents to remember that co-parenting requires constant negotiation about what is and what is not in a child’s best interest. Parental disagreements about vaccinations and mask-wearing are no different than disagreements about riding on the back of a motorcycle or having too much screen time. Parents should make a good faith effort to work it out and continually keep the focus on what is best for the child.

If direct negotiations become too difficult, an attorney can facilitate a mediation session to clarify and resolve issues.

Modifying child support payments

In New Hampshire, child support is calculated by a formula set by statute and found in the child support guidelines. Deviations may be made by the court or through mutual agreement. Once a child support order is in place, one party may request a recalculation every three years unless there has been an earlier substantial change in circumstances.

A “change in circumstances” could mean a change in one parent’s income (more or less) or might be associated with an increase or decrease in a child’s expenses (medical bills, childcare, schooling, etc.). The statute lists the circumstances under which the court would consider deviations from the formula.

A parent being furloughed or laid off due to COVID-19 will constitute a change in circumstances warranting at least temporary modification. In those instances, the court will adjust the child support obligation at least during the duration of the reduction in income and again, parents are encouraged to try to reach an agreement on any interim reductions in child support. This poses challenges for the recipient of child support which may be unavoidable. Some expenses may be reduced during the pandemic — such as extracurricular activities and childcare — that might make the reduction more tolerable. Be sure to include in income calculations any stimulus or unemployment benefits.

Changing alimony agreements

Like child support, alimony in New Hampshire is governed by statute, with changes permissible under certain conditions, such as an unforeseen and significant change in income for either party. The court has broad discretion in modifying an alimony order and can make modifications retroactive to the date of that modification is sought. Like child support, the court may temporarily reduce alimony obligations due to COVID-19 related reduction in income.  With this understanding, parents are again encouraged to try to reach an agreement on temporary reduction in alimony during the period of reduced income.

Get help

Each parent should consult with his or her own family law attorney before attempting to make any formal changes to existing parenting or financial agreements.  Informal agreements may be problematic if not reduced to writing and signed by both parents.  For the most protection, modified agreements should be filed with the court.

About the Author: Judith A. Fairclough

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