Should I file now or wait?
By Deborah Gordon, Senior Associate
Many have recently asked VSSF lawyers about the best time to file for their impending separation and/or divorce – now or wait until after the pandemic? There is a mistaken belief that our courthouses are closed (or partially closed) and that divorce cases are not moving forward, so the advice people are erroneously receiving is to just wait until it this is all over and everything is re-opened again. Well, first, we don’t know “when this will be all over.” Second, waiting will put you further behind in line in what is becoming an ever-increasing backlog of cases in Superior Courts. This post seeks to clear up a few misconceptions and provide some guidance on your decision:
- 90 Day Waiting Period. Nobody has to go to the courthouse, in person, to file a divorce; we file our family law cases electronically. For a dissolution of marriage (“divorce”), there can be no finality of all issues for at least 90 days anyway (although most cases average 9-10+ months to resolve depending on complexity). So, if you file now (versus waiting), you will be earlier in the line of and ahead of those cases that are filed this summer, and the 90 day clock begins now.
- No Court Appearances Anyway. About 95% of VSSF’s family law cases settled out of court last year, before COVID-19, and most of those required no personal court appearances. This is not the “new normal.” That is, we have been resolving cases without personal contact for years. For the lucky (or unlucky), who are in the 5%, even then, those hearings and trials are being held by phone and video conferencing.
- Emergencies. Most courts will prioritize emergencies, such as domestic violence or withholding children. This post cannot summarize the 39 various county courts (they all have different COVID-19 procedures), but common among all of our Superior Courts in Washington is the idea that family law emergencies or matters that are “mission critical” get to move forward without delay.
- Violence and Fear. Many of you are stuck in a home where there is domestic violence, including physical abuse or threatening behavior. You should not wait or hope that things will get better when “this is over.” You have the absolute right to request a protection order, to provide safety for you, and if applicable, your children. At no time, even during this pandemic, should you feel that you have no choice and that you must remain in an abusive home or relationship. We have previously posted resources that you can reach out to, as well as one of our family law lawyers at VSSF. [Jana – can you refer back to our resources link?]
- Moving Out. Should you move out or ask your partner to move out? There is another misconception that moving out can be construed as abandonment. This is not true whether we are referring to equity in the family home or custody of the children. We file motions all the time for the court to order one party to vacate the family home. The party may complain that they cannot find new housing because of the pandemic, but everyone has options for moving out and such struggles are outweighed by the dysfunction of being forced to remain under the same roof.
- Divorce Rates are Rising. We expect an uptick in family law cases and separations after stay-at-home restrictions are slowly lifted, which has been documented in other countries already. We also imagine inexperienced lawyers will try to open their doors to family law and divorce cases because they see the surge in demand. Be careful on the lawyers you choose, making sure they have experience dealing with these issues.
- Courts Are Going to be more Congested. We have heard this for years, before COVID-19 — “the wheels of justice move slowly.” Currently, courts in Washington have delayed many family law matters where March/April matters were continued to May/June, and now May/June cases are being pushed out to even later. As a consequence, there are going to be major backlogs for hearings and trials, putting a bigger demand on the mediation world (alternative dispute resolution). Courts have no choice but to be creative to sort through the backlog of cases and will likely give priority to those that have been waiting the longest.
- What about children? With children, this can be even a more difficult decision. If both parents work, then you have to worry about visitation and parenting for the children, which involves exchanges. If either or both parents are essential workers or cannot work from home, then schedules and cooperation are important. Are daycares safe? Are healthy family members available to help, who themselves are also not vulnerable. Will school resume in the fall?
- Can you Afford it? Many people are stuck because there is not enough money to support two (2) households, let alone money to hire a lawyer. People in dire circumstances have financed the legal costs, borrowed from friends/family, or accessed funds normally preserved for retirement to pay for alternative living arrangements (for the “moving out spouse”) or have put the lawyer’s retainer on credit cards.
- Research Your Law Firm. When you contemplate the timing of your case, be careful who you hire. Go online and research the lawyers and law firm you are considering.
At Van Siclen, Stocks & Firkins, we have attorneys here who can help you navigate your divorce during this difficult time. Contact us to schedule a free consultation via video conference or over the phone.
