Attorney Brooke Shafranek Answers Your Questions Regarding COVID-19 and How It Affects Your Divorce

Divorce Matters attorney Brooke Shafranek answers questions submitted from the community.

Q. Can I still get a divorce? (0:18)

Q. What can I do if I’m experiencing an emergency, such as domestic violence or child abuse? (2:30)

Q. Co-parenting, parenting plans, what happens if we need to deviate or I and my ex disagree? (3:04)

Q. What will happen with the stimulus checks that the government is sending out? (3:53)

Contact us for more information or to schedule a video or phone consultation:  720-542-6142

Can I File For Divorce With What’s Going On With The Coronavirus?

With everything going on right now with the coronavirus, what happens if I want to file for divorce?

By: Brooke Shafranek

Moving forward with a divorce during the Coronavirus crisis raises many questions about how COVID 19 will impact your case.

The courts are still open but operating at a limited capacity””there will be reduced staff, and the only cases that will be heard are those related to public safety. New case filings will be accepted through e-filing and at the clerk’s window, but your case may be delayed by at least 60-90 days. Your divorce case will be accepted by the court, and you can begin the process; however, what happens during the course of your case remains uncertain.

The first step is to have an initial consultation with an attorney. To comply with social distancing measures, we offer secure telephone and video consultations with our attorneys to assess your case and keep it moving forward. Due to the crisis, whether or not you retain an attorney will have a major impact on your case.

When you begin a divorce, there is a mandatory initial status conference with the court that must take place before your case can move forward. This initial status conference is not a matter of public safety, and therefore all such hearings are delayed indefinitely. However, your attorney can work with your spouse’s counsel to draft an agreed-upon plan for your case, which will eliminate the need for your initial status conference.

After the initial status conference hurdle is crossed, the parties are still required to attend mediation. Mediation is mandatory in the state of Colorado, and it is a formal meeting where we try to resolve your case. Despite the crisis, mediations are still occurring via telephone and video conferencing.

If your divorce does not involve children, your case may not be delayed as severely if you and your spouse can come to an agreement at mediation. Should you be able to reach and sign a separation agreement, your attorney will assist in requesting that your divorce proceed forward without having to appear in court, whether it be in person, via telephone, or otherwise.

If your divorce does involve children and both parties have counsel, it will be easier to navigate parenting issues during these uncertain times. Access to the court will be delayed, so your attorney will need to get creative in resolving disputes. If only one parent is represented by an attorney, you will be required to attend a hearing and must wait for the court to schedule you in.

During these uncertain times, your attorney will be able to utilize their expertise at navigating the court system to assist you in your divorce and move the process forward with as few delays as possible in ways you may not be able to if you chose to represent yourself.

If I’ve Lost My Job Due To The CoronaVirus, Can I Get My Maintenance or Child Support Payments Reduced or Changed?

Have you experienced an interruption to your job due to the coronavirus such as a reduction in hours or loss of job? Can you get your maintenance or child support payments reduced or changed if this is the case and how quickly?

The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.

If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.

Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances.

If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a), C.R.S.

In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.

When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.

This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.

What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.

Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.

If you have any questions or concerns about your maintenance or child support call us at 720-542-6142 to speak with one of our attorneys, or fill out our form here.

Because family law is an extremely personal matter we are not eliminating face-to-face meetings at this time. However, we do have virtual and telephonic meetings available and strongly encourage them for anyone who wishes to conduct their consultation via telephone or computer in accordance with social distancing protocols.

Announcement: Divorce Matters’ Response to Coronavirus

We are monitoring all coronavirus developments and adjusting our firm’s operations as necessary to protect the health of our clients, employees and the community at large. Effective March 16th we are implementing the following:

  • To continue serving our community, our firm is offering secure telephonic and virtual consultation and meeting options during this time.
  • Our firm employs technology which ensures that our clients can send, receive and execute documents remotely.
  • We have increased routine cleaning and disinfecting of surfaces, equipment, and common work areas like conference rooms and work room areas.
  • Additionally, as a precaution, the building has increased surface cleaning throughout common areas. They have also increased cleaning within each individual suite, and will continue to do so in the coming weeks.

I’m Worried My Ex May Have COVID-19, Do I Have To Send My Child To Them For Their Regularly Scheduled Parenting Time?

Following a divorce or separation, the reality for many children becomes a shuffling of back-and-forth between each parent’s home based on a court-ordered parenting time schedule. But what happens if one parent, or someone that parent came in contact with, becomes infected with the COVID-19? What if the other parent lives in a different state? Is self-quarantine reason enough to fail to comply with court-ordered parenting time?

Failure to comply with court-ordered parenting time always poses a risk of contempt for parents, meaning that one parent could seek criminal and civil sanctions against the non-complying parent along with enforcement of the parenting plan. However, one of the key defenses to a contempt charge is the present inability to comply with court orders. Events such as school closures, flights canceling, and travel bans can all (arguably) impact a parent’s present ability to comply with court orders.

Because this coronavirus is so novel, there are no clear answers to when one parent may be justified in withholding court-ordered parenting time based on fears alone. Of course, if there is clear evidence a parent or member of that parent’s household is infected, common sense seems to take the reins.

Fear alone is not enough. Some factors to consider in making the decision whether to withhold parenting time are:
Ӣ Whether the non-infected parent lives in a community with an outbreak;
”¢ Whether members of the non-infected parent’s household have been exposed;
”¢ Whether there are especially vulnerable or at-risk household members in the non-infected parent’s home;
Ӣ Whether community containment efforts are in effect;
”¢ Whether the child’s life has been impacted, such as closed schools

However, the risk of choosing to withhold parenting time varies on a daily basis with new updates on the coronavirus. While the decision to withhold parenting time may have seemed reasonable on Monday, the parent’s actions may just as likely be seen as unreasonable by Friday. It is unclear if a court can order a parent to be tested for the coronavirus.

Choosing to violate a court order is never risk-free. If parents cannot agree on how to handle exchanges, one parent can file an emergency motion with the court seeking an order permitting a temporary suspension of parenting time.

Another option for parents trying to limit the child’s exposure to a possibly infected parent is to file an emergency motion to restrict the infected parent’s parenting time. However, there must be a risk of imminent harm to the child; hence why fear is not enough.

On the other hand, if a parent was wrongly withheld from his or her parenting time, there are remedies that can be addressed through enforcement of the parenting time. For example, courts can award make-up parenting time to the withheld parent.

However, if the courts close due to the coronavirus, there may not be any recourse until after the doors reopen. Check with your local government offices for an updated list of closures. Call our firm at 720-542-6142 if you have any questions regarding your current parenting time agreement and would like to speak with one of our attorneys or fill out our form here.