The court shutdown in New York was as essential as it was unprecedented. The urgent need to save lives and stop the spread of COVID-19 took vital precedence over procedural, legalistic concerns. But now, with the state slowly reopening, the legal community must confront the complications that have arisen from the shutdown. Clients want answers, and it will be up to judges and lawyers together to rebuild and re-center a system that has been sharply disrupted.

I am a family law litigator. In family law, real-world events external to litigation can have massive effects on our cases, which are, at base, reflections on the personal lives of litigants. An economic shock means financial changes; school closures mean custody issues. Procedural dates, too, are important in divorces—in many ways, dates determine how property is going to be distributed between spouses, and these dates and deadlines have been greatly disrupted. As family law attorneys review their cases and consider what comes next, here are the four questions I believe courts, lawyers, and perhaps legislators will need to answer in the months to come.

What happens to the date of commencement? Beginning March 17, new divorce actions were barred from filing. As of May 25, this restriction is being lifted, but that's an over two-month gap in time. I cannot understate how important filing dates are in many divorces. The date a divorce action was commenced is the date that freezes the values of certain assets to be divided between spouses. Divorce litigants provide sworn statements showing asset values as of this date, which largely guide the conversation about distribution from that point forward. The date of commencement is a snapshot representing, in many ways, the day a marriage ceased functioning as an economic unit.

With the shutdown, spouses were unable to trigger a commencement date with a divorce filing. Say a spouse wanted to file on March 20, but had to wait until late May. Between those two dates, the economy tilted and whirled. Businesses went under or suffered tremendous losses, as did bank accounts. How—and whether—courts factor delayed commencements into divorce litigation is going to be a critical issue.

How will support arrears be handled? Related to this, in New York, there is practically no defense to child support or maintenance arrears. If you owe it, you owe it. The sole exception is that courts are empowered to modify arrears if the payor parent or ex-spouse filed a petition to modify their support obligations before accruing their arrears. Say a spouse filed for a downward modification on March 10 and did not pay April 1 child support—a court can modify that past-due April 1 payment at a later date.

With new filings halted, parents and ex-spouses have been unable to ask courts to modify support obligations. Given how many people have become unemployed since the shutdown commenced, and thus are likely to have missed payments, figuring out how to deal with arrears accrued during the ban on filings will be necessary. The alternative will see unemployed litigants coming out of lockdown with massive support arrears that they cannot have reduced.

Will the virus be a basis to modify parenting time? The coronavirus is not leaving us any time soon, that much is clear. Even when New York reopens, until there is a vaccine, the risk of infection will remain. For some parents, this will mean continuing difficulties with custody situations that pose specific risks. Is there a scenario in which the very existence and threat of coronavirus is sufficient to modify custody based on a change in circumstances?

On this question, we can read tea leaves and guess at future case results. The Kings County Family Court recently issued a decision, Matter of Jennifer R. v. Lauren B., NYLJ (5/4/20) (Fam. Ct., Kings Co.), denying a parent's request to move a child to New Jersey based on New York being a COVID-19 "hotspot." The court largely focused on the petitioning parent's inability to show any specific threat of harm to the child.

That, though, is an easy case—coronavirus is not an excuse to march all children out of New York State. Slightly trickier is the situation set forth in S.V. v. A.J., 2020 NY Slip Op 20103 (Fam. Ct., Bronx Co.), in which a mother unilaterally ceased visitation with a father based on New York State's stay-at-home orders, and the general risk of contracting coronavirus. The Family Court rejected the mother's claims, noting bluntly that family relationships cannot be put on indefinite hold absent "serious risk of harm."

Clearly, courts are taking the proper position that coronavirus by itself is not an excuse to cease compliance with parenting agreements and orders. But the above cases are somewhat clear-cut, in that no specific risks are cited to the child, or to others residing in the child's home(s). There will be tougher fact patterns to come, and in those cases, it is less than clear what a court might do.

Consider: the mother of a small child resides with her elderly, immunocompromised parent. Is it safe to allow the child to come and go from the home? A parent or child may themselves have a medical condition placing them in a high-risk category. Parents working in the medical field may have regular exposure to the virus. How—if at all—will courts factor these difficulties into petitions to modify custody arrangements?

Are some divorces back to square one? Divorce litigation can continue for years, and involve multiple professional appraisals of homes, businesses, pension plans, and other assets that defy easy valuation. America, and New York, have just experienced an economic upheaval that is impossible to understate in terms of its shock and severity. The effects on the housing market, on business sectors, even on state abilities to fund pensions, are yet to be seen. For those who have been proceeding with divorce based on rough agreement as to the values of assets (or at least with two dueling appraisals each claims to be correct), does this mean a total reset? Are many types of marital assets now effectively re-appraised and re-valued in light of our "new normal" economy?

Businesses are the most obvious problems here. A New York City restaurant worth X dollars on February 1 is almost certainly not worth that today. Businesses are usually valued at the date of commencement—does this mean the titled spouse pays out the non-titled spouse based on a valuation that now has no connection with reality? For that matter, how will appraisers estimate future cash flow on businesses that are closed indefinitely, or that may open and close again if there is a second wave of infections?

Homes, too, may be an issue. We don't yet know what coronavirus will do to real estate values in New York. Perhaps nothing. But if you're a spouse buying out your soon-to-be-ex's interest in a piece of marital real estate, do you really want that buyout amount to be based on a pre-coronavirus appraisal? Look to these kinds of issues in equitable distribution to be a prime driver of litigation going forward.

Conclusion

New York's court system has to date done an admirable job of responding to the challenges imposed by coronavirus and the lockdown. But now comes the aftermath and the clean-up. Every area of law is going to face its own unique challenges in responding to these novel issues, but I believe family law, with its dynamic and reactive nature, is going to be especially problematic. I have faith in our state's lawyers and judiciary, and while my faith in our legislators is less enthusiastic, one hopes that if legislation proves necessary to smooth out some of these edges, it will be quickly passed. For now, we can all keep doing exactly as we have been: the best we can.

John Teufel is a family attorney and freelance writer based in Brooklyn. He is Of Counsel to Berkman Bottger Newman & Schein.