Family law attorneys see increase in prenups, divorce filings and custody battles

Stay-at-home orders have intensified the work of family law offices as firms report prenups and divorce filings are stable or on the rise while child custody battles have become messier.

“In the short time since the virus has locked down society, it has emphatically shackled our justice system, reducing the flow of cases through our court system to merely a trickle,” said Ronald F. Brot, founding and senior partner at Brot Gross Fishbein LLP and president of the Los Angeles County Bar Association. “My firm has indeed noticed that we have been called upon for more prenuptial agreement counseling than before. However, the sample is so small I don’t believe we can draw any conclusions. The most pressing issues that have arisen in family law since lawyers have been out of their offices and judges have been out of the courthouse concern child custody and domestic violence issues, period.”

“What do you do as a parent when the courts are not open?” said B. Robert Farzad, founding partner of Farzad & Ochoa Family Law Attorneys in Santa Ana. Parents are “weaponizing the coronavirus” by keeping their children and not following court visitation orders, he said.

“One thing we are seeing is some police departments are not dealing with this right now. Police are saying, ‘Sorry we’re not going to force the exchange of this child from one parent to the next,’” Farhad explained. “I mean, if you think about it, law enforcement is probably overwhelmed by all of this too and getting a lot of these calls.” Some attorneys are trying to arrange custody exchanges in public places while abiding by social distancing and stay-at-home guidance.

In Orange County, family law courts are essentially closed except for certain domestic violence restraining orders and emergency child custody filings until June 1. Farzad said emergency child custody filings include, as one example, those where there is an imminent threat of harm to a child.

Los Angeles County Superior Court continues to process domestic violence protection orders, but are hindered by a lack of volunteer help to assist people in preparing their applications, Brot noted, while sheriff’s deputies are still serving domestic violence restraining orders to help keep people safe.

“Some domestic violence protection order applicants have encountered difficulty in getting law enforcement to serve the restraining orders that were issued by the judge,” Brot said. “The supervising judge of the family law division of the LA Superior Court reported to the family law community that in fact the sheriff’s department is serving these orders and people are being protected.”

In the child custody context, Brot agreed there is an issue as to whether custody exchange orders must be followed in view of the shelter-in-place mandate coming from state and local government. However, he has not seen any instances of this yet in Los Angeles County.

“There is a fear that disingenuous parents would refuse custody exchanges based on an alleged fear of placing the children in jeopardy. I am happy to report that, for the most part, that fear has been unrealized,” Brot said. “Even parents who are dramatically at odds on every issue seem to have avoided placing their children in the middle of a tug-of-war while society is attempting to stem the flow of COVID-19.”

“This is something every family law lawyer in California is dealing with right now,” Farzad said. “That’s the first thing and the most compelling thing we’ve seen.”

Another problem is court-ordered alimony and child-support payments. Loss of work and depreciation of portfolio assets affects both payer and recipient clients.

“We’ve circled back under all the clients under spousal support orders asking, ‘Hey, are you still employed? Do you have a job?’” said Debra R. Schoenberg of Schoenberg Family Law Group PC in San Francisco. “For people who had interest income from their investment portfolio included in their support estimate we’re filing motions to reduce the child or spousal support.”

Schoenberg said her clients include doctors, plastic surgeons and orthopedic specialists whose offices are closed because they do elective work, and cannot do any of it right now.

“The entire balance of spousal support is affected as soon as that person’s income is affected,” she added.

The economic and health crises are inspiring people to get off the fence about life decisions, to either arrange a marriage or file for divorce, Schoenberg said. “There’s been no downturn in intakes,” Schoenberg said, “It’s either the same or it’s going up. The people I spoke with in the two to three weeks before the virus hit are not on the fence anymore. They’re saying, ‘I’m ready to commit to a divorce; send me a retainer agreement.’”

Schoenberg admits she’s no psychologist, but she thinks the reason her clients have become more decisive about setting the wheels of their divorce proceedings in motion could be attributed to the pandemic making people face their own mortality. She calls them “Seize the moment; I could die,” decisions.

“Hearing on the news about people from infants to seniors dying. Thinking, ‘This could get me as well. I’m not exempt.’ People are looking at their mortality and saying ‘I could die. I don’t want to be in an unhappy marriage,’” she explained.

On the other hand, Farzad said one of the silver linings he has noticed is separated spouses becoming more cooperative with each other for the benefit of their children.

“They realize that need to work together for the kids,” he said, “They realize there have been layoffs. They’re becoming more conscious of the immediate future and their priorities.”

He also agrees with Schoenberg that more people are committing to life decisions, one way or the other. “That could mean maybe they’re now working with their partner on their marriage instead of wanting a divorce, while others have been pushed harder into a divorce because they want to get out of this marriage and get mentally healthy,” he said.

Both Schoenberg and Farzad have handled a significant increase in clients seeking premarital agreements.

“People can’t have a big wedding right now but they’re still getting married. Or they’re saying, ‘We’re getting married, we want to have the prenup done, so as soon as this virus thing is over we can proceed with our plans,’” Schoenberg said.“People are clearly concerned about their health and the health of their loved ones.”

Farzad is cautious to call the three-week increase he’s seen in calls about prenups a trend, yet, but he does insist he has seen an increase.

“We’ve probably gotten more prenups calls in the past two weeks than we have in the past three months,” he said, “That’s either a coincidence, or it’s related to the coronoavirus. If we keep seeing calls at a higher volume then you can connect the dots.”

Brot cautioned, “Any analysis is anecdotical at best. No one can really predict what what will happen in the long term. You have to remember we’re in the fist month.”