Divorce is difficult during normal times. Divorce during a pandemic where lock down orders and social distancing measures are in place is another thing all altogether. If you are in the middle of or contemplating beginning the divorce process, you likely have lots of questions. Here my good friend Alex Hunt of Hunt Law Firm and I will try to answer the most common ones.
Can I file for divorce when a Stay at Home Order is in effect?
Alex: Courts are still accepting and routing new filings on an ongoing basis. You can absolutely open a new case.
If I file, can I settle my case when a Stay at Home Order is in effect?
Alex: Maybe. If you are able to agree to a settlement outside the court room by negotiating between yourself and your spouse or by using mediation (done remotely, of course) you can reach a settlement agreement. Most courts also have procedures in place to finalize a divorce remotely, either through a sworn affidavit or a videoconference.
Are the courts even open?
Alex: Yes, courts are open and because they are allowing remote appearances, it's possible to complete a divorce case. However, capacity is limited and courts are only taking "essential" cases, meaning you may be waiting for quite some time for your day in court if you have a contested, but "non-essential" matter to be heard.
Can my spouse spend all our money or take assets away from me?
Alex: Temporary orders put rules in place during the pendency of your divorce case. Many courts have standing "injunctions" in place during the COVID-19 pandemic that apply to both parties after a case is filed. Generally, these injunctions restrict parties from this type of behavior. Should a party violate one of these court orders, he or she could face contempt of court.
Can I sell my home or buy a new home when a Stay at Home Order is in effect?
Alex: Housing is considered essential and real estate agents and mortgage lenders (essential businesses) are open. Homes are still being bought and sold actively. If you aren't ready to sell the family home right now, you can craft your divorce decree to allow for a sale of the home at a later date. This is a common arrangement even when there isn't a global pandemic happening.
Should we sell our investments and go to cash until the stock market calms down or recovers?
Sarah: In most cases, no. Volatility and losses are psychologically painful but it's damaging to your financial health to sell in a down market – you'll be locking in those loses and locking yourself out of future market rallies. The major caveat is that if you have an immediate need for cash and have no other resources, you may need to sell. See advice from a qualified financial professional about which assets to sell before you move forward.
Can we even start negotiating a settlement?
Sarah: As Alex mentioned earlier, the courts are still open and cases are still moving forward. So, yes, you can start negotiating now. Even if stock market volatility has you worried about finalizing an agreement there are plenty of case elements beyond the numbers that need to be worked through.
Should we wait to finalize until the stock market calms down?
Sarah: Maybe. If most of your net worth is invested in stocks, it may be wise to wait to finalize your agreement. In this case, try to reach an agreement in principal that can be made final when markets aren't gyrating wildly. On the flip side, if most of your net worth is invested in less volatile assets like bonds, real property or cash, then it's likely you can proceed now.
If we use a "financial expert", what kind should we use?
Sarah: Ideally, I believe it would be someone who is both a Certified Divorce Financial Analyst™ and a CERTIFIED FINANCIAL PLANNER™ Professional. This person will have the knowledge around divorce and planning needed to guide you effectively.
Thank you to Alex Hunt of Hunt Law Firm, PLLC for collaborating on this piece.
The opinions expressed herein are those of the author(s) and not necessarily those of Robert W. Baird & Co. Incorporated. Baird and Hunt Law Firm, PLLC are not affiliated. Baird does not offer tax or legal advice.