How to best assist clients who separate during COVID-19 – The Lawyer’s Daily

This article was originally published in The Lawyer’s Daily

With people working from home thanks to COVID-19, many couples aren’t getting any breaks from each other and, in some cases, may not even have adequate space to find solitude. For some, being confined to close quarters with no time apart is causing tension in marriages, triggering separation and divorce.

An already difficult process, divorce during the pandemic presents new challenges — financially and mentally — especially when a business and/or children are involved. But while COVID-19 may add an extra layer of consideration to a complicated decision, it is still possible to achieve a quick and amicable divorce during the pandemic.

Recognize clients’ challenges and sense of urgency

Rushing to court is a sure way to an unhappy divorce and, particularly now, eschewing an adversarial system in favour of mediation and collaborative law can better serve separating clients. These alternative processes can lessen the negative impact of divorce, particularly on children. But while mediators and collaborative lawyers are trained to help clients resolve issues in a more peaceful way, we must also recognize that this is an unprecedented time.

Many people are now juggling at least three jobs in their 24/7 domestic quarters, managing their professional job, their children’s education and day-to-day household responsibilities. Some may have lost their employment and income. Others may face complex, even abusive, situations and have nowhere to turn. The inability to physically separate easily due to pandemic restrictions may intensify personal — and interpersonal — challenges.

These factors and limitations have led to even greater stress and sense of urgency for couples to separate than before the pandemic hit. Now, more than ever, resolving disputes equitably and efficiently is paramount to assisting clients through a divorce.

As a result, we may have to adapt how we service our clients. This may mean responding to a panicked client e-mail on the weekend or during our vacation, or drafting their separation agreement quickly so they can put an offer on that new perfect house. Given the circumstances, we need to rethink our priorities and be flexible to schedule appointments when the clients can escape their house and kids rather than when it’s convenient for us. I am sure I am not the only one who had to take calls while clients were out walking the dog or running errands.

Be more creative than you have ever been

Understandably, many people are living in fear during the pandemic, whether of getting the virus or navigating the unforeseeable future. This might trigger nervousness that influences some of their most important decisions, such as selling the home or whether to buy or rent after the divorce. Some clients are paralyzed by fear of the future like never before, hardly able to get themselves together to pack up and move out of the family home even after a deal is reached. More compassionate conversations are definitely required — some docketed and some not — at each of our discretion.

In a large number of my cases, income stability for one or both parties is a major source of disagreement. When trying to resolve support issues, creativity and out-of-the box thinking can make a world of difference.

For example, in a recent file I dealt with, both parties were flexible and negotiated a deal where there was a set-off between the equalization payment owed by the wife to the husband and the spousal support amount owed by the husband to the wife. In an unprecedented way for me, the separation agreement did not list an amount for either payment but it contained a fairly robust preamble that listed all of the issues considered by both, all the areas that were in dispute and not resolved, and an acknowledgement that the set-off was an acceptable solution. Everyone was content.

In contrast, another case involved a husband whose business and income had taken a serious hit since the outbreak. Although his income was now completely unpredictable due to the pandemic, the wife’s lawyer did not open her mind to the fact that we live in a different world and the old models no longer fit. She kept sending me support calculations using historical income despite the husband’s financial documents showing his sinking business and the result was a court case that led to more financial turmoil — a tragedy for this family.

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