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Filing a New Family Law Case During the Judicial Emergency in Virginia

COVID-19In response to the Coronavirus Disease 2019 (COVID-19) pandemic, on March 16, 2020 the Supreme Court of Virginia entered an order declaring a judicial emergency in Virginia. The initial judicial emergency order declared the judicial emergency through April 6, 2020, but the Supreme Court subsequently entered two additional judicial emergency orders, each time extending the emergency period by an additional 21 days. As of its most recent judicial emergency order, the Supreme Court has extended the judicial emergency period through May 17, 2020.

The judicial emergency order limits matters being heard in Virginia courts during this time—however, courts are not closed entirely. While courts are not operating at their normal capacity, judges are are still hearing cases. The order instructs Virginia courts to give precedence to certain emergency matters including emergency child custody cases, quarantine or isolation matters, and protective order cases.

The judicial emergency order also allows the judges of the local courts to make accommodations that may not normally be made, such as:

  1. allowing matters to be heard by two-way electronic audio-visual communication, if available;
  2. allowing pleadings to be electronically filed; and
  3. allowing for matters to be continued liberally.

All of this means that you may still file your divorce, custody, visitation, child support, spousal support or other family law case at this time. Non-emergency matters like a new divorce or custody filing will likely not be heard any time soon. And, courts are likely to consider general requests for modification of support as non-emergency matters. However, courts may hold hearings on custody and visitation matters that rise to the level of an emergency, including some disputes specifically arising from quarantine or isolation issues.

Benefits to Filing Your Case Now

Even if your case will not be heard until after the judicial emergency has passed, there are several great benefits to filing now:

Beat the Rush and Reserve Your Spot. The primary benefit is that you can “get in line” now. By filing now, you can have your case processed and in line to be given a trial date when the courts begin operating at full capacity. There is likely to be a tremendous backlog of cases in the court system after this crisis has passed, and a rush of new cases being filed once the courts return to normal capacity. By filing now, you beat the rush and reserve your spot in the queue.

Preservation of Child Support Retroactivity. Pursuant to Virginia Code §20-108 Virginia courts must award child support retroactive to the date of filing. This means that the court will make an award of child support effective from the date that the initial petition was filed. In instances of child support modification, the award will be retroactive to the date that the other party was served.

So even if your trial date is six months from now, the child support, once awarded, would begin from the date that your petition was filed and will likely result in some arrearage amount owed to you. On the other side of this coin, if someone has filed a child support petition alleging that you owe support or that the current support amount you pay should be increased, be sure to consult with an attorney right away. By negotiating and resolving the matter on your behalf, an attorney can help you avoid owing a substantial arrearage amount to the other parent.

Preservation of Jurisdiction. Per the Uniform Child Custody Jurisdiction and Enforcement Act, custody proceedings should take place in the “home state” of a minor child. The child’s home state is where the child resided six months prior to the filing of the custody proceeding. This means that if one parent decides to relocate with the child during the time period in which the court is not hearing non-emergency matters, the relocating parent could establish jurisdiction in another state that is less convenient to you. It may be important that you file a petition in order to preserve the jurisdiction of your case in Virginia.

Your attorney may have more time now. Let’s be honest: the limited scope of court hearings means that attorneys are not in court as much as they would normally be right now. This means that your attorney may be more responsive as he or she is not preparing for or in the middle of a trial. This is a great time to capitalize on having an attorney who is more readily accessible.

Down time can lead to settlement. Now is a great time to suggest, encourage, and compel settlement discussions. A party who was has been unwilling to even consider settlement may suddenly be willing to entertain the possibility if the case will not be going to trial as soon as previously expected. And attorneys on both sides are likely more available now for settlement negotiations. These two factors can combine to result in a resolution of your case which saves you the stress and costs associated with litigation. Virginia courts are currently accepting all agreed orders, meaning that if all parties can agree, the attorneys can draft an order and submit it for the judge to sign—all without the need for trial.

The reality is that divorce, custody, support and other family law issues do not stop even when there is a pandemic. Despite the current limited court schedule in Virginia, there are options for anyone facing these issues. To learn more about your options, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Ashburn, Manassas, and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.

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