Month: May 2017

Modification of Alimony Post-Judgment in Connecticut

By: Sarah E. Murray

Fairfield County Family Courts have a significant number of post-judgment cases, many of them involving the modification of alimony after a divorce. Modification of alimony post-judgment is a common issue that arises for people living in towns like Greenwich and Fairfield, as changes in income or other circumstances lead both alimony payors and alimony recipients to seek relief from the Court with respect to alimony payments.

Some divorce agreements or Court decisions state that alimony is non-modifiable by one or both parties as to term, i.e. duration, and/or amount. If a divorce agreement or Court decision states that alimony is non-modifiable as to amount or duration, or both, it means that a party cannot seek to change the amount of alimony, nor to extend or reduce the alimony term, regardless of whether circumstances have changed after the divorce. There may be particular reasons why a person would agree to, or request that a Court Order, non-modifiable alimony. Generally, it is less common for a final divorce judgment to state that alimony is non-modifiable.

In most cases, the final divorce judgment either explicitly or implicitly permits the modification of alimony. Connecticut General Statutes Section 46b-86(a) allows for the modification of alimony “[u]nless and to the extent that the decree precludes modification.” In other words, as long as the final divorce judgment does not state that alimony is non-modifiable, a party has a right to modify alimony. Alimony is also
modifiable based on the cohabitation of the alimony recipient.

Of course, simply because a final judgment allows for modification of alimony post-judgment does not mean that a person’s claim that alimony should be modified will be successful. In order to obtain a Court Order modifying alimony under General Statutes Section 46b-86(a), the party seeking the modification must prove that there has been a substantial change in circumstances of either party. Under Connecticut case law, in determining whether there has been a substantial change in circumstances, a Court will
compare the circumstances at the time of the last Court Order of alimony with circumstances at the time that a party seeks a modification of that Order. Relatively minor fluctuations in income alone will not be enough to overcome the “substantial change in circumstances” threshold.

Furthermore, our office was involved in a recent Connecticut Supreme Court case, Dan v. Dan, 315 Conn. 1 (2014), which states that an increase in the income of the alimony payor, standing on its own, is not sufficient justification to modify an alimony award upward. Prior to this case, it was common for an alimony recipient to seek modification of alimony if his or her ex-spouse had an increase in income. Now, such a motion is likely to fail under Dan. Dan, however, does not prevent an alimony recipient from
requesting a modification of alimony if other circumstances have changed such that the original purpose of the alimony award is no longer met.

It is critical to allege a proper basis for modification, as the Court will confine its analysis to the substantial change in circumstances alleged in the moving party’s motion. Significant changes in health and job loss are examples of possible substantial changes in circumstances. Each case is different. In order to prove a substantial change in circumstances that would justify a change in alimony, a party needs to engage in
strategic planning, preferably with an attorney, prior to filing a motion for modification. If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior

If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior alimony award is still proper. Or, the Court can decide to change the alimony amount or term. If the Court does change the alimony amount or term, the Court has the authority under the statute to make the change retroactive to the date that the motion for modification was served on the other party. The Court does not have to make its Orders retroactive but has the discretion to do so.

At Broder & Orland, LLC, our attorneys have significant experience handling cases involving the modification of alimony post-judgment. In fact, we have been involved in some of the seminal cases in Connecticut on alimony modification issues and can consult with clients to shed light on whether a potential alimony modification case is viable.

Part 1 – Financial Motions During the Pendency of a Divorce Action

A variety of factors can impact the length of a divorce case in Connecticut, such as the complexity of issues, the Court’s schedule and the overall willingness of the parties to work together to reach an agreement. Divorce cases in Connecticut can last for a year or even longer in some circumstances. What happens if you and your spouse have a dispute over issues that must be addressed during the pendency of your divorce action? Fortunately, you do not have to wait until the end of your case to get the court’s
decision if there are disagreements regarding child custody, visitation, spousal or child support, possession of property or attorney fees during your case. You can file a pendente lite Motion, which is a request for the Court to make orders during the course of the action, prior to your divorce trial or final judgment.

Financial disputes are a common reason that motions are filed pendente lite. For example, if you and your spouse cannot decide on how to divide the family income and expenses during your divorce, it is appropriate to file a motion to establish temporary alimony, child support, or contribution to household expenses. In advance of filing financial motions during your divorce, you should prepare your financial affidavit with your attorney. This way, any relevant information regarding your financial circumstances
can be included or highlighted within the motion. Also, you will be prepared to exchange financial affidavits with your spouse, which must be done at least five days in advance of the Hearing on your motion, and sooner in some cases.

Typically, about three or four weeks after your motion is filed with the Court, you will be able to appear at the Courthouse in order to have it heard. If you are unable to resolve the issues with an agreement, your attorney will have an opportunity to present evidence and argue before a Judge. At a minimum, the court will require testimony from you or your spouse and information regarding your family’s financial needs, sources and amount of income and standard of living, and assets and liabilities prior to entering
interim financial orders. In Connecticut, there are statutory factors that the Judge must consider when deciding pendente lite motions for alimony or child support, so additional information and testimony might be needed. These factors include (but are not limited to) the ages and health of the parties, their employability and skills, and the needs of the children. Ultimately, the Court will decide how to weigh the statutory factors in your case. The Court does not have to give equal weight to each factor. There is no formula for temporary (or permanent) alimony in Connecticut. There are, however, Child Support Guidelines that the Court will use in order to determine the minimum presumptive amount of child support to be paid from one spouse to the other.

There is no formula for temporary (or permanent) alimony in Connecticut. There are, however, Child Support Guidelines that the Court will use in order to determine the minimum presumptive amount of child support to be paid from one spouse to the other.

While pendente lite orders are intended to temporarily resolve issues during the pendency of the action, there may be a significant lapse of time between the filing and adjudication of your motion. Connecticut law allows for retroactivity of alimony orders back to the date of filing the application as well as credit for voluntary payments made since the filing of the application, within the discretion of the Court.

At Broder & Orland LLC we are committed to assisting clients in Greenwich, Ridgefield, Fairfield and neighboring towns, navigate through all aspects of the divorce process, including the resolution of pendente lite financial issues.

The Greenwich Divorce

I am often asked if there are different rules that apply to someone who is getting divorced in Greenwich, Connecticut, or any of the neighboring towns. I have even been asked by a high net worth and sophisticated client, whether you need a specific qualification to be a Greenwich divorce attorney. The simple answer to both questions is no. Whether you live in Greenwich, Hartford, Westport, or any other town in Connecticut, the laws governing divorce are the same and an attorney licensed in Connecticut can represent you.

What is “different” is that there are many high net worth divorce cases in Greenwich. This is due to the concentration of wealth there, including a large number of hedge funds that consider Greenwich their home. As a result, these divorce cases may be more complex. For example, partners in hedge funds often receive employment compensation well beyond a W-2 based income.

In these types of cases, it is often necessary to hire a financial expert to value a spouse’s interest in their investments. Of course, due to the nature of many of the investments, it is often difficult to assign a value. When this is the case, it is up to the attorneys to try to be creative in reaching a resolution. One alternative is to have the assets paid out on an “if, as and when basis”. For example, the wife will maintain an interest in her husband’s investments, and she will receive distributions at the same time that he does. Conversely, if there are additional funds due with regard to these investments, such as capital calls or clawbacks, it will be the wife’s responsibility to make her share of these payments.

Just because a couple has a high financial net worth, it does not mean their divorce has to be complicated. Hopefully, after reviewing the financial information in the case, the lawyers can keep things simple and predictable for both parties. This allows for less entanglement in the future. If the parties agree to “if, as and when” language as mentioned above, there are many different procedures that parties have to follow after the divorce. This often includes annually exchanging tax returns, K-1s, 1099s and other income related documents.

The “Greenwich divorce” is no different from any other divorce that occurs within the State of Connecticut. The same statutes, rules and case law apply. However, when there is a high net worth divorce case it is crucial to be sure you have an attorney that is experienced and understands the implications related to these often complex cases.

Postnuptial Agreements in Connecticut Part II: Is my Postnuptial Agreement Enforceable?

As discussed in Part I of this series, many clients come to our office from various towns in Connecticut, including Greenwich and Westport wondering whether a Postnuptial Agreement is a good legal option available to them. Once a client decides that a Postnuptial Agreement is appropriate, the next step is ensuring that a court will enforce it. When courts analyze the enforceability of a Postnuptial Agreement, they apply a higher standard of scrutiny than they do in assessing other types of contracts. This is because unlike many other contracts, upon entrance into a Postnuptial Agreement, husbands and wives share a special fiduciary relationship, and typically trust one another. Bedrick v. Bedrick, 300 Conn. 691 at 698 (2011) at 702. As a result, the parties often proceed less prudently than they would when entering into other types of agreements.

The courts apply a two part test when they examine the enforceability of a Postnuptial Agreement. The first part of the analysis for a court is assessing whether the Postnuptial Agreement is fair and equitable at the time of signing. In order for the Postnuptial Agreement to be fair and equitable at the time of signing, the parties to a Postnuptial Agreement must consent to the terms of the agreement, without undue influence, fraud or duress. Additionally, the parties must be provided with an opportunity to read and fully understand the terms of the Agreement. Courts will consider each party’s educational background, vocational experience, his or her age, and any other factors, which might affect his or her understanding of the Postnuptial Agreement at the time of execution. Prior to execution, both parties must also be provided with full disclosure of the value of the other party’s property, both real and
personal, as well as the other party’s income and liabilities. Additionally, the parties must have been provided with an adequate amount of time to consult with and review the terms of the Postnuptial Agreement with counsel. Courts will examine all of these factors and the terms of the Postnuptial Agreement under the totality of the circumstances in order to determine whether the Agreement was fair and equitable at the time of execution.

Additionally, Postnuptial Agreements must not be unconscionable at the time of dissolution. Postnuptial Agreements are unconscionable if they would work an injustice to either party; unfairness or inequity alone is not enough. For example, even if an Agreement results in an inequitable distribution of the assets and liabilities, this does not mean that the agreement is unconscionable. While this may seem straightforward, as the Connecticut Supreme Court notes in Bedrick, no agreement can possibly anticipate all future events, including the loss of a job, or even relocation to another state. As a result of these unforeseen circumstances, at the time of dissolution a term which originally resulted in an unequal distribution of the assets, may now work an injustice to either party. At Broder & Orland, LLC, our lawyers are well versed in the complexities of a Postnuptial Agreement and the issues that arise concerning enforceability. We are adept at helping clients navigate through the process.