The current COVID-19 shut-down could be affecting your ability to comply with your Property Settlement Agreement or other Court Orders even when you want to comply. Can you get relief?
What if you are divorced and there is a provision in your divorce agreement requiring you to distribute assets, pay debts, or handle other financial obligations? Can you be excused from paying them because of issues in your life related to COVID-19 disruptions? It is unlikely that your divorce agreement has a clause spelling out the circumstances under which performance will be excused during one of the specified circumstances, such as natural disaster, disease, epidemic, or pandemic. That clause is called “force majeure.”
But what happens when your agreement contains no force majeure provision? The short answer is that courts will look to the situation, include impossibility of performance, frustration of purpose, and impracticability of performance.
If COVID-19 has created a situation where you need to assert the defense of impossibility of performance, impracticability of performance, and/or frustration of contractual purpose, you must establish an unexpected occurrence of an intervening act like COVID-19; such occurrence was of such a character that its non-occurrence was a basic assumption of the agreement of the parties meaning that you and the other party assumed payments would be made or assets would be distributed or debts were paid; and that occurrence of COVID-19 made performance impracticable.
If your agreement does not include a force majeure clause, the courts should look to whether COVID-19 related disruptions have resulted in the frustration of your agreement’s purpose to the extent the parties to the contract are excused from performance. Whether a particular court adopts an impossibility of performance argument is highly fact-specific. As your attorney, I will evaluate impossibility of performance and how it relates to financial obligations.
Ronald Lieberman, Esq. is a partner and shareholder at ALBFR&M in South Jersey. He has dedicated his career to representing clients in all types of family law matters including complex and high-conflict matters.