Divorcing During a Pandemic

How do you get divorced during a pandemic? When the courts are closed or operating on a limited basis, what are your options?

The coronavirus pandemic has made ending a marriage through litigation even less appealing and more challenging. In most instances, hearings are telephonic, sometimes with video, and in-person hearings are prioritized for urgent or emergency situations. As a result, litigated cases are now taking much longer to resolve. The growing backlog will mean significant divorce litigation delays for the foreseeable future.

What are your options?

There are several ways you can get divorced — or make significant progress on a complex separation or divorce agreement — outside of the court system.

  • Do-It-Yourself Divorce: Also called a pro se divorce, this is a divorce process that is entirely self-managed by the divorcing couple. Both parties file the forms required by state law, without outside representation. In situations where significant disagreements and complex assets exist, the do-it-yourself divorce is not advisable.
  • Direct Negotiation Divorce: Sometimes called the attorney-to-attorney divorce, each party retains an attorney and the case is negotiated between attorneys. This approach is sometimes used when both parties agree on the general direction and goal, but cannot communicate well. The attorneys work out the details and handle all the paperwork. The direct negotiation divorce is less successful for more nuanced and complex divorce cases.
  • Collaborative Divorce: Also known as the “collaborative law process,” a collaborative divorce involves making a formal commitment to settling the divorce outside of court. The parties, their attorneys, and the other professionals involved sign a contract that states the shared commitment to the collaborative law process. This participation agreement includes language that disqualifies the attorneys from representing the divorcing parties in court, should the process be unsuccessful. The process consists of a series of meetings between both parties, a divorce coach, and their respective attorneys. These meetings may also include other outside professionals like child specialists and financial specialists. Through a series of meetings, everyone works together to achieve resolution and closure that is acceptable to all, and without the threat of litigation. The results are often creative and highly satisfactory for all participants.
  • Mediation: Mediation is a popular alternative to litigation. In New Hampshire, the overwhelming majority of divorces are settled through mediation or direct negotiation. During a mediation process, the divorcing couple meets with a neutral third-party facilitator to identify conflicts and work toward resolution and settlement. Mediation does not require that attorneys are involved. Still, most mediators recommend attorney participation at some point in the process, even if only to review and comment upon the advisability of a proposed agreement. In some cases, attorneys act as consultants. In other cases, attorneys attend mediation with all parties in one room at the same time.  In still other cases, attorneys and clients may be separated into different rooms with the mediator ‘shuttling’ back and forth between rooms in an effort to settle the case.  The style of mediation will depend on the facts of the case. Mediation is highly effective.  Because of its effectiveness as a divorce process, New Hampshire law now requires all parents of minor children to attend mediation. It encourages other divorcing couples to do so, too.
  • Arbitration. Arbitration can be utilized to resolve a contested divorce through a court-like process. The decision-maker is retained privately and is often a retired judge. Arbitration tends to be expensive because the entire process must be privately funded. When family courts are open and operating efficiently, arbitration is uncommon because family court accomplishes the same goal at far less expense. If cost is not a major concern, arbitration can be a good option when court delays are unacceptable. Arbitration is also an approach to consider when the divorcing couple wishes to handle the process confidentially. When one or both litigants are public figures, arbitration can be kept a completely private process.

Questions?

If you have questions about any of these options — and discussing next steps — feel free to contact us.

About the Author: Margaret Kerouac

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