Do I Need a Pandemic Clause in my Divorce Decree

The Coronavirus has upended long-standing post marriage relationships for a number of people. Parenting plans have been rendered impossible by quarantine and other mandates; well-established financial security has given way to the largest number of unemployed Americans since the Great Depression; and the ability to pay for the home one rents or owns has become difficult, if not impossible, for many.

Lawyers everywhere are scrambling to address numerous, complex and candidly oftentimes unanticipated, problems that have emerged from the unprecedented pandemic and its effects on the economy, health and jobs. Is now the time to take a look at divorce documents that are currently being negotiated, or which may later be negotiated, and try to address some of these problems?

 Many businesses purchase insurance or put clauses in their contracts that address a legal occurrence called a “force majeure.” A Force majeure clause, which some are now calling Pandemic Clauses, allow parties to either be excused from performance or suspend the time of performance, in whole or in part, due to events or conditions that are out of their control. Usually the events are of unanticipated catastrophic occurrences that are not foreseeable.

How then to protect against unforeseen circumstances that may put the ability to make spousal payments, child support payments, or other payments post-divorce impossible? One option could be a Pandemic Clause in the divorce documents, in states where they are allowed. Such a clause, if approved by court, could allow a person to later reduce their financial obligations in certain circumstances, and for this reduction to occur automatically.

For example, a Pandemic Clause could state that, under certain conditions, the requirement to pay spousal support and/or child support could be reduced, or even suspended. A decrease might be directly related to any decrease in a party’s gross income, i.e., a 20% reduction in payment if there is a 20% decrease in salary due to the unforeseen circumstances. There is a question about whether or not a Court could order this, but this could be something you agree to in mediation or a collaborative setting.

If such a clause were included in the divorce decree, the paying party’s obligation could be automatically reduced at the time of such an event. It would be important to also include a provision in the decree that the court retains jurisdiction to change the financial obligation based on the facts in the particular case. But once a triggering event were to occur, and the conditions were to be met, the paying party might automatically be able to reduce their future financial obligations based upon an agreed-upon formula in the present.

There are many unanswered questions regarding Pandemic Clauses. Questions to consider with them include how such a clause might potentially affect performance obligations on the other side, including parenting time. If one parent is quarantined, might such a clause automatically stop the other parent’s obligation to allow the child to be with that parent? State, regional and even local law mandates may provide assistance or a solution to this quandary.

Other areas of inquiry may include the following: if a Pandemic Clause automatically reduces support obligations, how long would this change last and how would the prior obligation resume? If there were to be such a reduction, might there be an obligation to later “make up” for the reduction in payments due to the Pandemic Clause temporary payment reduction requirement? By whom and how would the Pandemic Clause changes be monitored and controlled? What happens if the recipient’s pay is also reduced and how would the “double whammy” effect on that parent be accounted for?

Talk to your lawyer about how a Pandemic Clause might be appropriate in your case.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.