Looking to File a Divorce? Communicate via Email or Text Message During COVID-19 Lockdowns

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As any lawyer can tell you, some of the most painstaking and unpredictable legal proceedings occur when both sides of a case are forced to rely on their recollections of conversations and trying to convince a judge that their memory is better or more accurate than that of the adversary. A case presentation is much more rewarding when one is able to present “the smoking gun” — a crucial, unbiased and indisputable piece of evidence that permits the prevailing party to sit back and enjoy the subtle smirk of victory.

Hard evidence in the form of records, photographs and documents are the backbone of any legal proceeding. Having one record that decides an entire case is the stuff of Perry Mason and is a fantasy. In reality, a dedicated legal team will bring to light a plethora of records that prove their client’s narrative and position through fact-based consistency.

Clients cannot predict what kind of legal battles lay ahead of them. Divorced parties who are co-parenting their children face decisions and circumstances that change daily. I always stress the importance of creating a “trail,” made of paper, bits and bytes or breadcrumbs.

With recent circumstances in mind, I am urging the importance of that trail now more than ever. While small changes are seeming to occur on the state-level, COVID-19 reigns over the legal system with courts frozen in place and access thawing every so slowly until the crisis slows down. The backlog of unresolved disputes will create a tsunami-like wave crashing at the courthouse doors. When courts open and we trickle back to normalcy, it will be the party with the clearest, unequivocal and targeted evidence who will rule the day. Courts will be sifting through mountains of allegations. Listening to hours and hours of “he said/she said.” The party with undeniable nugget of truth will have a large advantage.

With the world on pause, divorcees or those looking to file for divorce have the unique opportunity to actively work to maintain communication records with their spouse. The best way for individuals to maintain records with their legal opponent is to communicate via email then next best could be text—but it’s a distant second given the evidentiary hurdles faced by the party who tries to proffer the text and needs to authenticate it.

Communication records of any major decision, and the process that preceded it, like child custody or financial decisions, remove much of the uncertainty and problems that arise when relying on a person’s memory. That said, the records can be a double-edged sword in that they can slice you up too. Using a medium that can preserve your “conversations” with your co-parent is good practice. Not only for the purposes of a possible litigation, but even in the ebb and flow of your dealings with your co-parent. A memorialized statement can prevent a convenient flip-flopping. This is especially important now.

We are finding it not uncommon for a parent to try and leverage the current situation so as to support a denial of parenting time to the “out of custody” parent. Claiming it’s too dangerous to travel, or claiming that there may be others in a household who could be infected, or who are particularly at risk are common themes—and not always reasonable

I believe that judges, when faced with a parent’s unreasonable behavior which tries to take advantage of the current horrific situation, will address that parent’s actions most appropriately.  Remember, one of the most important jobs, if not THE most important job of a parent is to support the role of the other parent in the life of a child. We have seen custodial rights stripped away from a party to acts contrary to that role.

Having a window through which a Judge a can view the motivations and actions of a parent can be very helpful, and an unadulterated trail which memorializes the conversations is very helpful.

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