Various thoughts and concerns regarding how to co-parents during the COVID-19 pandemic, adapted from Justice A. Pazaratz, Ontario Superior Court of Justice, Hamilton, Ontario:

1. The health, safety and well-being of children and families are the foremost consideration as co-parenting issues arise amidst the pandemic.
2. An existing parenting order should presumably be adhered to and respected.
3. Amid extraordinary times, however, everyone’s daily routines and activities have been essentially suspended in favor of social distancing and limited community interaction.
4. Promoting the physical and emotional well-being of children calls for flexibility, creativity and common sense.
5. Most co-parenting situations call for the continuation of existing parenting arrangements and schedules, subject to pandemic precautions including social distancing.
6. A parent subject to self-isolation, personal illness or exposure to the virus may have to forego some custodial or parenting time.
7. A parent who fails to take reasonable health precautions and/or recklessly exposes a child (or household members) to COVID-19 risk may be subjected to limited or suspended parenting time.
8. Parenting exchanges require additional thought and planning as it pertains to social distancing and other safe pandemic protocols.
9. Each family has unique issues and complications, many with no easy answers.

The premise of this blog post is a simple one. When you are getting divorced, you and your spouse are splitting assets, including assets that have only one party’s name on the title. That includes the house, cars, recreational vehicles, and other property items. If you are married, it does not really matter that the asset is in your name alone.

This is because all property is presumed to be marital unless one can make a valid non-marital claim to the property item. Non-marital claims include those tied to assets owned before the marriage, assets inherited from family members, or assets acquired after the parties stopped living together as spouses. If the property is titled in one spouse’s name, but that spouse does not have a valid non-marital claim to the asset, then the asset is considered marital, and must be included in the property division.

If the house is titled only in one spouse’s name, both spouses have an interest in the house, and one spouse will have to buy out the interest of the other spouse. It might even be that the titled spouse buys out the interest of the other, non-titled spouse, in which case the title will need to be placed into the name of the non-titled spouse after the divorce process is complete.

This principle applies to debts as well. If one spouse was left off of the mortgage because they had credit problems, that does not absolve that spouse of co-responsibility to repay the mortgage debt.

As for assets that are held jointly, but to which one spouse has a non-marital claim, this principle does apply conversely as well. If one party has a non-marital claim to an asset for which title is held jointly, the joint title (on its own) does not defeat the non-marital claim. There are many instances when one party will oppose a non-marital claim by asserting that the asset is held in joint names. How title is held is not the most important factor; the most important factor is whether the asset is a product of joint efforts (literally or figuratively) as opposed to being traced to before the marriage, to an inheritance, or facts that show an absence of marital funds or efforts.

When a couple is divorcing, issues may arise regarding the present earnings, past earnings, future earnings or potential earnings of one or both spouses. This happens most commonly when one party is seeking spousal maintenance (a/k/a alimony), and the other party believes the requesting party is under-employed. That term (under-employed) refers to (a) working less than full-time and/or (b) foregoing the opportunity for higher level earnings. In most cases, the dispute can be resolved by negotiating the issue in conjunction with other financial issues, such as retirement assets or house equity – oftentimes with a mediator.

But if the parties need a vocational expert to weigh in on the issue, most commonly it is because the spouse who would pay spousal maintenance would like to show how much higher the requesting spouse’s income could be. This spouse might be tempted to hire an expert to focus on the potential income and estimate as high as possible. That would require the requesting spouse to hire a competing expert to focus on the realities of the job market and the obstacles and limitations that stand in the way of maximum earnings. If the parties litigate the issue in family court, then the judge is presented with two extremes, neither of which is likely the fair answer to the question. Nor is it likely to be a fair result for the court to simply average the opinions of the two experts. Nor is the court in the best-informed position hearing from experts advocating for one “side” of the legal dispute.

If the parties agree to enlist a neutral vocational expert, they will likely share the cost of the expert’s work (which saves each party half of what they would likely spend on their own experts), and the work product will be a better way to provide the court with an informed record on which to make a decision. Moreover, the parties may avoid the need to let the court decide the issue altogether, if the parties are able to agree that the neutral expert’s opinion is a satisfactory middle ground.

When parties to a divorce or child custody action are disagreeing on issues, they may feel very strongly about their position. They may want the opportunity to have their dispute heard by the family court. And if the family court directs them to attempt to resolve the dispute in mediation, or some other form of alternative dispute resolution, they may feel like that would be a waste of time.

Their attorneys may be willing to pursue their wish for a day in court. That may require a less-than-valiant effort to settle the case with the mediator. But in such an instance, if an impasse is declared, it is not an intelligent impasse. It is an impasse by default.

An intelligent impasse is one in which each party has explored a range of possibilities beyond their strongly-held position. Or at least as wide a range as possible in the circumstances. If the issue has not been thoroughly explored in an effort to negotiate an agreement, then declaring an impasse is premature.

Similarly, if the case is pending, and the court wishes to know the status of the case, the parties may inform the court that there is no resolution, and the parties are at an impasse. It would be wrong for the case to proceed to trial, simply in the absence of a written stipulation. The courtroom should not be the place where, and the time when, the facts and circumstances of the issue are first explored in detail. Many judges will not be satisfied if alternate dispute resolution has been attempted nominally, but the parties have not made a sincere effort to reach a resolution.

So, if an attorney says, “Your Honor, we have not resolved the case, and we are ready for trial,” the question is, is it an intelligent impasse, or not?

An action for legal separation is similar to an action for marriage dissolution (a/k/a divorce), except that a legal separation does not break the bonds of matrimony. Therefore, the parties remain married.

The legal separation is often confused with people who are separated pending a divorce. When a couple is getting divorced, and during the divorce they are separated, this is not a legal separation. (There is nothing illegal about their separation, but it is not a legal separation.)

When a couple seeks a legal separation instead of a divorce, typically it is for one of three reasons: (1) Residency; (2) Spiritual Concerns; (3) Substantive Issues.

(1) Residency. There is no residency requirement for a legal separation. In Minnesota, there is a 180-day residency requirement for a marriage dissolution. So, if someone has not resided in Minnesota for 180 days, but would like some form of relief, they may pursue a legal separation. (Note: in such instances, it may be more sound to simply seek the marriage dissolution as soon as the residency requirement is met.)

(2) Spiritual Concerns. If one or both spouses is concerned that dissolving the marriage is a spiritually unacceptable option (due to one’s personal emphasis on the sanctity of marriage), they may seek a legal separation to balance the interests of separating from their spouse and not breaching the marital vows. Since only one spouse would need to declare that the marriage is irretrievably broken in order for the family court to grant a divorce, a legal separation in this circumstance would require that either both spouses stand by the principle of not pursuing a divorce, or at least that one spouse respects the principles adhered to by the other spouse.

(3) Substantive Issues. In decades past, there were certain pension programs that simply would not pay benefits to a former spouse. (Examples: police pensions, firefighters pensions.) Therefore, the couple would have to stay married because otherwise the spouse of the pension participant would be deprived of their marital interest in the pension. That issue has not presented itself in the last 15 to 25 years. But more recently, a parallel issue has arisen with health insurance. In recent years, it is more common that a former spouse is not entitled to health insurance benefits than it was five or ten years ago. That said, a couple concerned about this issue should be sure to explore the options available in the event of divorce, and to compare and contrast what policies or programs might offer versus continuation coverage through their existing provider.

One reason NOT to pursue a legal separation is as a means to provide their spouse with a wake-up call, and make them change their ways, and/or to bring about a reconciliation. When reconciliation is successful, it is almost always with the help of a therapist or counselor, and through lots of effort and commitment on the part of both spouses. Using a legal separation essentially as an ultimatum is both procedurally and substantively improper. It is procedurally inappropriate because the family court process should be used for marriage dissolutions and proper legal separations, not for veiled efforts to reconcile. It is substantively improper because the terms of a legal separation are permanent and final; therefore, the relief should not be sought from the court if it is not meant to be permanent and final.

Many people seek to annul their marriage because they realize shortly after getting married that they feel the marriage is a mistake. However, that is not the basis for nullifying the marriage. The grounds for annulment, in Minn. Stat. Section 518.02, are (a) mental incapacity or infirmity on the part of one spouse unknown to the other spouse; (b) incapacity at the time or solemnization due to alcohol or drugs; (c) consent by force or fraud coupled with no subsequent voluntary cohabitation; (d) lack of physical capacity to consummate the marriage unknown to the other spouse; and (e) being underage. (Minn. Stat. Section 517.02 sets forth the minimum age for marriage to be 18, or 16 with the consent of parents or guardians.)

The fact is, a marriage dissolution in the case of a very short marriage is no more complicated than an annulment. So in most (if not all) instances in which someone wishes to pursue an annulment, but does not qualify under the statute, one can pursue a marriage dissolution, and most such divorces happen expeditiously.

Parental alienation is the phrase used to describe one parent’s intentional efforts to fuel a child’s negative feelings about the other parent. The phrase is used loosely in many situations involving parents who do not get along well. But there are many cases in which a parent’s campaign to alienate a child from the other parent is real and consequential.

Parental alienation is an example of the problems that arise from high-conflict co-parenting. It stands to reason that if there the less conflict between the parents, and the higher level of cooperation, communication and mutual respect, that better the child will fare. And there are some parents who experience conflict and a lack of cooperation but who do not engage in any kind of parental alienation.

When parental alienation is present, the alienating parent is likely to deny any intentional alienation. They will argue that the child is not bonded with the other parent, and that the problem has nothing to do with their own alienating behavior. Either way, the situation calls for the involvement of a therapist. If the real problem is a lack of bonding, and not parental alienation, the relationship dynamics can be improved with therapy. And if the real problem is actual parental alienation, the situation can also be improved with a family therapist.

The most unfortunate scenario is one where custody is modified as a result of parental alienation. The family court has the authority and discretion to do this. But how sad for (a) a child’s living situation to be disrupted by (b) being placed into the primary custody of a parent about whom the child has been fed lots of negative information and (c) the child may have no good understanding of why this is happening.

The typical mediation involves five people: the mediator, the two parties and the attorneys for the two parties. (Alternatively, there will be just the parties and the mediator, or perhaps one party will have an attorney and one will not.) If the parties are unable (or unwilling) to meet together, then the mediation will proceed in separate rooms – one party and their attorney in one room, and the other party and their attorney in the other room, with the mediator moving between rooms conducting shuttle diplomacy.

Parties may be unable to meet together because of a history of domestic violence or the existence of a restraining order. If the parties are not otherwise unable to meet together, one or both parties may choose to meet in separate rooms to reduce the tension and avoid a destructive confrontation. (Since mediation is voluntary, so too should the prospect of meeting together in one room be voluntary.)

The session may begin together, and then break out into separate rooms for parts of the session, or possibly for the remainder of the session. The breakout may happen at the request of a party, at the request of an attorney, or at the direction of the mediator. Most often the party or attorney calls for a caucus so that the party and attorney can confer privately. Most often the mediator calls for a caucus because at times more progress can be made using the shuttle diplomacy model.

In addition to the mediator meeting with one party and the party’s attorney, there will sometimes be occasions for the mediator to meet with the attorneys only. Mediators often choose this option in order to determine the most efficient use of time, by addressing with the attorneys what discourse might be helpful in reaching resolution versus other discourse that might simply be a waste of time.