Since we have moved to a virtual divorce court system, there have been a surge of people filing for divorce in the United States. This is a pattern also seen in China, Britain and Sweden. But as the New York Times reports, there are also problems with the reopening of virtual court, for expected reasons, and less obvious ones.

Old Problems and New

National statistics are not yet available, but there seems to be more work for lawyers and mediators across the board. Consultations are up significantly, but at the same time, some clients are frozen. Many people do not want to initiate the divorce process when their spouse is earning less or business values are down.

Every divorce comes laden with its own issues, but there are some pandemic-era problems facing those wondering whether to stay or get divorce. The pandemic hasn’t just heightened the tension in marriages. It’s also heightened the tension in divorces.

Lawyers acknowledge that although there is rarely travel time or time spent waiting around court for clients to pay for these days because almost everything is virtual and by appointment. However, this convenience can be offset by other costs, like waiting for hours outside courthouses to file something the electronic system won’t accept.

Then there’s the problem of documents which need to be notarized. Something once so simple a lawyer could do it while waiting with a client at court is a problem. Now, if clients don’t want to notarize something in person, it may require video calls along with the document being sent back and forth via snail mail or delivery service.

Florida Problem Free Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was. In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Virtual Divorce Court

Further complicating things in virtual court is how difficult it can be to get on a judge’s calendar for a non-urgent matter. Besides the backlog in many courts, the video hearings in some virtual courtrooms mean that judges are able to get through fewer cases than in the pre-COVID world, when everyone was crowded into the same courtroom and cases went one after another.

The crush of cases means there is even more of a push to settle — pre-pandemic, some 90 percent of divorce cases didn’t go to trial. Some lawyers say that during the pandemic that figure is closer to 98 percent.

In addition to mediation, there has also been an uptick in couples using the collaborative divorce process. Collaborative divorce is a voluntary process in which couples work toward  a settlement  without the financial and emotional cost of litigation.

It may also be harder for clients to feel they have gotten a fair hearing via a zoom hearing. Virtual backgrounds can be frowned upon, because a judge needs to be able to see who else might be in the room.

In addition to the problem of how you appear before the court, there’s the added problem of how to consult with therapists, lawyers, and real estate agents, because there’s so little privacy with everyone at home.

There is also the more significant problem that judges can’t see body language, and nor can clients, who in the past could use it to glean information about the judge’s reaction to their position as presented by their lawyer. This can make clients wonder if the judge has fully heard them.

The New York Times article is here.