Unique times create unique questions. Many of us have seen the recent t’shuvos of Rav Herschel Schachter ruling on the unique circumstances that this year’s Pesach has brought to our families and our homes. We are blessed to be able to rely on the shoulders of Rav Schachter and other halachic authorities to guide our community.
Divorcing couples and divorced couples are facing very unique circumstances as well in this season of quarantine. But in this instance, there is little guidance from the authorities of the law, because the courts are closed except for matters of emergency. During my 25+ years of practice I have experienced two major financial crises: the bust of the dot-coms in the early 2000s and the post-Lehman financial recession of 2007. It is certainly too early to tell how long and how big the impact of the current crisis will be, but the questions arising from this crisis are quite novel. Both clients and legal professionals are grappling with how to best handle these difficult issues. Here is a sample of such questions:
On Parenting:
1) Father: “While I am able to work from home and social distance, my children’s mother is a nurse and can’t social distance. While we have equal parenting time, now I feel that I should have the children 100 percent of the time because Mom works in a high risk environment. Shouldn’t we be prioritizing the children’s health and survival at this time?”
2) Mother: “My husband wants to take the children to their grandparents for the holiday, but their grandfather is a doctor regularly seeing sick patients. How can I let them be with their grandfather at this time?”
3) Mother: “I am sick and want to protect my kids from getting sick (and I am not even sure that I can take care of them while I feel so sick). Is it risky for me to have them stay with Dad until I get better? What happens if he does not want to return to the parenting schedule that we always had after that?”
4) Mother: “I would like to temporarily relocate out West to be with my family. With home quarantine, I can’t work at home, can’t be there for the kids, and the father is not able to either. Can I relocate to my mother’s home where I have family who can properly help care for the kids and enable me to work to keep my job that would otherwise be at risk?”
On Finances:
1) Father: “My business is down 80 percent in gross revenue. How am I supposed to pay the amount of support in our settlement agreement?”
2) Mother: “My ex-husband just informed me that he has been “furloughed” and will no longer be receiving any income. He does not want to pay me support. What am I supposed to do?”
3) Wife: “The plan was for me to buy out my husband’s interest in the home, but I am not prepared to pay him 50 percent of the value that was determined a month ago before the world changed. I am sure the value is a fraction of what it once was.”
These are real questions. It is not difficult to understand where each side is coming from, especially with drastic concerns around medical and financial survival.
But Could the Lack of Judicial Intervention and Direction Be An Opportunity in Disguise?
With the courts closed, clients are forced to engage each other and try to come to a resolution without relying on a neutral judge imposing a decision. The adversarial skill set that most traditional attorneys have, zealously advocating for a win-lose outcome that favors only one side, will not be successful in this new environment. Instead, an alternative framework, one which seeks to find solutions that address the needs and concerns of all concerned parties, will be the more productive approach here.
In responding to many of the above-noted questions, I ask clients what they would do if they were still married. The nature of this question, providing a framework of problem-solving instead of adversarial and one-sided tactics, has been so useful that most clients ultimately have resolved these difficult issues on their own without requiring professional intervention.
What comes to mind is the old adage, “If all you have is a hammer, everything looks like a nail.” The traditional attorney has unnecessarily relied on the hammer of the court house, a tool that offers little in helping families, particularly children. The current court closings should force not just the attorneys, but the parties and family members of parties, to find alternative tools to deal with these and other questions. Even when the courts re-open, the expected backlog will frustrate anyone seeking to move on with their lives and relationships.
Having always taken the position that the courtroom is not the place for families to resolve their differences (with some exceptions, of course), we look forward to a growing cadre of professionals shifting away from the adversarial mindset of battle in the courtroom to a mindset of collaboration, mediation and problem-solving. Indeed, these approaches embody different skill sets than the traditional lawyer is accustomed to using, and many struggle with these skills. Now, more than ever, will this paradigm and more nuanced and interpersonal set of skills come in handy to help families constructively deal with the new and challenging questions of our time.
Adam Berner, who specializes in mediation and collaborative family law, is the owner of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the family dispute resolution field for the past 25 years, he has served as president of the Family & Divorce Mediation Council of N.Y., and founding president of the N.J. Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law, where he teaches mediation and collaborative law. Additional information can be found at www.MediationOffices.com.
