Month: June 2017

Does it matter who files first for divorce?

Divorce lawyers in towns such as Darien and New Canaan are often asked, “Does it matter who files first for divorce?” The short answer is, “It depends.” The Court draws no inference that because the Wife files that the Husband is a bad actor or vice versa. Most cases in Connecticut are filed as “No Fault” divorces, which means neither party alleges grounds other than the “marriage has broken down irretrievably.” However, the cause of the breakdown is still a factor in the Court’s determination of property division and alimony.

Arguably there may be an advantage at trial because the Plaintiff, the one who files first, gets to put on its case first. We all know it’s human nature to hear a story and come to a conclusion without hearing the other side, especially if that story has some “ring of truth.” However, Judges are trained to not make any decision until the evidence and arguments are complete.

Filing first may give you the opportunity to assemble your legal team, including experts, before your spouse does.  This is especially true when your spouse will be caught by surprise. You will want to retain the lawyer of your choice before your spouse has a chance to hire that person. And having first pick of a certain financial expert, earning capacity expert, or other forensic expert can be critical to the outcome of your case.

By controlling the date of filing, you will also have an opportunity to retrieve and assemble documents and records that you may not have access to as easily once your spouse is on board. You can make copies ahead of time of financial data such as account statements, loan applications, income-related documents and tax returns.

By taking the lead, you have the benefit of timing the Automatic Orders, which essentially prevent your spouse, once he or she is served, from making any financial moves that are outside of the ordinary course of what was done during the marriage. Note that as Plaintiff, you also are bound by the Automatic Orders when the complaint is signed.

In a case where spouses have residences in different states or different venues within a state, filing first may mean you can choose one place over another to your advantage. While the law is the same throughout Connecticut, custom, practices, and outcomes do vary from court to court.

Some people feel a psychological advantage in being the one to file for divorce. This may be relevant to the emotions surrounding the breakup, rather than any legally related strategy. On the other hand, there are those who are reluctant to take the first step and would rather wait until his or her spouse files. It can be a very personal matter and really varies from case to case.

At Broder & Orland LLC, we are adept at advising clients on the strategies involved in filing for divorce as well as during the pendency of the case. These matters should be discussed in depth at the initial consult.

 

Inheritances, and the marital estate, are your inheritances subject to equitable distribution?

Many clients come into our office from the towns of Fairfield County with family money they inherited during the marriage, or which they anticipate inheriting after a dissolution proceeding.  Sometimes clients want to know whether the inheritance they have already received or anticipate receiving, will be considered part of the marital estate subject to equitable distribution at the time of dissolution.

At the time of entering into a judgment or dissolving a marriage, any inheritance already received is considered a part of the marital asset, subject to equitable distribution pursuant to C.G.S.A. § 46b-81(a)-(c). The recipient spouse does not have a de-facto right to 100% of the value of these funds.  In determining how these funds shall be divided, the Court will consider all of the factors enumerated in the statute, including but not limited to the contribution each party made to the acquisition, preservation or appreciation in value of the inheritance, how the funds are held, whether commingled or separate, when they were acquired during the marriage, and the age, station, occupation, income, health, and estate of the parties. The Connecticut Courts examine all of these factors on a case by case basis to determine what constitutes an equitable distribution of the marital estate, including either spouse’s inherited assets.

Dividing inherited assets is not always a straightforward process. Great care must be taken in order to identify the specific nature of the inherited assets. For example, if a spouse received an inheritance in the amount of $1,000,000 during a twenty year marriage and the total value of the marital estate at the time of divorce is $1,500,000, the Court might equally divide the entire marital estate, including the inheritance.  By contrast, if it was a five year marriage, and one spouse had inherited $200,000, and the total marital estate was worth $5,000,000, the Court may allocate the receiving spouse with a credit of $200,000, especially if the funds were kept separately.  Courts will not only look at the inheritance received, but as previously noted, they will also consider any appreciation in value of the inheritance.  Additionally, the Courts will examine which spouse was responsible for the appreciation in value. For example, there may be circumstances where a spouse received a $100,000 inheritance and the other spouse actively invested the inherited funds.  If as a result of the non-inheriting spouse’s sole efforts the value of the inheritance increased significantly, the Court may take this into consideration.  The Court might also examine how the funds were being held, and whether the inheritance was kept as one spouse’s separate and distinct property and/or whether all or a portion of the funds had been commingled with the investing spouse’s funds.  If the funds were commingled into a joint account, a court may be more likely to equally divide the inheritance, including any appreciation in value.  What the Court finds equitable depends in part on myriad of factors, including the size of the marital estate, each party’s contribution to the preservation and/or appreciation in value of the inheritance, and how the funds have been held.

The important thing to understand is that unlike many other states, Connecticut does not treat an inheritance as the recipient’s separate property shielded from distribution to the non-inheriting spouse. The inheritance is subject to equitable distribution.  At Broder & Orland, LLC we understand the complexities associated with inheritances, and we frequently advise clients as to the myriad of factors a court takes into consideration when examining and distributing the marital estate.

 

 

 

What is a financial affidavit?

One of the most important documents during a dissolution proceeding is a Financial Affidavit. A Financial Affidavit is a sworn statement that the Court requires both parties to complete within thirty days of the Return Date. The Return Date is the date by which the Plaintiff must serve the Defendant with a Summons and Complaint, the two documents which begin the action, and return the served documents back to the court. The affidavit itself consists of the affiant’s income, expenses, assets and liabilities.

The Court provides two Financial Affidavit forms for parties to fill out. The first form known as a “short affidavit” is for parties whose assets total assets equal less than $75,000; the second form which is known as a “long affidavit” is for parties whose total assets equal more than $75,000. At Broder & Orland, LLC we have devised our own format based on the Court provided forms. This provides our clients with a more tailored approach as many of our clients have sophisticated pay structures or assets that need particular explanations.

When filling out a Financial Affidavit, there are a few key points to keep in mind. Parties should include all sources of income and should be as detailed as possible. For example, even though a party may receive an annual discretionary bonus that fluctuates from year to year, it is necessary to reflect this information on the Financial Affidavit. When showing a party’s expenses, it is important to keep in mind that the Financial Affidavit is a snapshot in time but should accurately reflect all expenses. For example, most parties only pay for snow plowing during the winter, expenses such as this need to be annualized so that the Court receives an accurate depiction. When disclosing a party’s assets on a Financial Affidavit, only assets which are in that particular party’s name or are jointly held with a third party, should be included on the Financial Affidavit. If the marital residence of the parties happens to only be in the husband’s name, that asset would only appear on the husband’s Financial Affidavit. Parties should also remember that their Financial Affidavit is a sworn document and that all of the information included in the Financial Affidavit must be true and accurate.

How does the Court utilize my Financial Affidavit?

In Connecticut, the Court requires each party to submit a Financial Affidavit in order to get divorced. This allows the Court to view each party’s financial picture quickly and in an organized manner. This aids the Court in determining an equitable distribution of the parties’ assets and liabilities. The Financial Affidavit is also used to determine each party’s income, which the Court uses when determining both child support and alimony.

Financial Affidavits are also utilized by the Court in other proceedings, such as post judgment Motions for Modification of support obligations, or Pendente Lite Motions to Appoint a Guardian ad Litem. In proceedings where the parties are asking a Court to appoint a Guardian ad Litem for the minor children, the Court may use Financial Affidavits to determine the ability of each party to contribute towards the Guardian’s fees. In Motions for Modification of support orders, a Court will utilize Financial Affidavits to determine the parties’ respective incomes and expenses and compare those to the parties’ Financial Affidavits from the last judgment or relevant order to determine what if any changes have occurred.

When do I need to file a Financial Affidavit?

The first time a Financial Affidavit must be produced in any dissolution action, is within thirty days of the Return Date. In addition, in accordance with Connecticut General Statutes Section 25-30, Financial Affidavits must be filed with the Court at least five days before a hearing concerning alimony, support, or counsel fees or before the actual date of dissolution.

At Broder & Orland, LLC, our attorneys are experienced in drafting Financial Affidavits for a range of financial circumstances. We ensure that each party’s Financial Affidavit is accurately portrays our client’s entire financial picture.

Does Connecticut Recognize “Separate Property?”

One of the most common inquiries that we receive from potential clients in Greenwich, Westport and other towns throughout Fairfield County, is whether or not, upon divorce, their spouse will be entitled to share in certain assets that he or she may perceive to be their “separate property.”  A common example would be where the individual has brought substantial assets with them into the marriage and hopes to solely retain these assets upon their divorce.  Additional examples might be where the inquiring potential client has received an inheritance or a gift during the marriage and wants to know if his or her spouse will have any right to share in a portion of such assets upon divorce.  Depending upon which side of the coin the potential client falls on, the answer to his or her inquiry may be heartening or discouraging.

Unlike many other equitable distribution states, Connecticut does not recognize any assets as  the “separate property” of either spouse, meaning assets that would be  exempt from equitable distribution in a divorce.   Rather, Connecticut is an “All Property” state, which means that any asset owned by either party to a divorce is subject to division in a divorce, regardless of how or when the asset was acquired.

That said, it is important to understand that under our “equitable distribution” law, assets are not automatically divided equally between divorcing spouses, as many people incorrectly assume.  Instead, courts have the discretion to distribute assets between divorcing spouses in any manner that the Court deems to be fair and equitable, and in determining fairness, court’s will consider a variety of factors including factors such as “how” and “when” a particular asset may have been acquired.  The full list of factors that courts may consider in determining an equitable division of property in a divorce is as follows:

  1. The length of the parties’ marriage;
  2. The causes for the annulment, dissolution of the marriage or legal separation;
  3. Age of each of the parties;
  4. Health of each of the parties;
  5. Station of each of the parties;
  6. Occupation of each of the parties;
  7. Amount and sources of income for each of the parties;
  8. Earning capacity of each of the parties;
  9. Vocational skills of each of the parties;
  10. Education of each of the parties;
  11. Employability of each of the parties;
  12. Estate of each of the parties;
  13. Liabilities and needs of each of the parties;
  14. The opportunity of each party for future acquisition of capital assets and income; and
  15. The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

Accordingly, as a practical matter, Connecticut divorce Courts will sometimes award one spouse a greater portion, or in some cases the entirety of assets that the party brought into the marriage, or received during the marriage by way of gift or inheritance.

At Broder & Orland LLC, we are well-versed in all issues relating to property division and are extremely adept at crafting and presenting the strongest possible arguments on behalf of our clients to achieve favorable property divisions, whether through settlement or at trial.

 

 

 

Shared Physical Custody, Split Custody & Child Support

In our practice at Broder & Orland, LLC, we are often asked the following questions:

  1. If my spouse and I share physical custody of our children, do I still have to
    pay child support?; and
  2. Can my spouse get out of paying child support by requesting shared
    physical custody?

Generally, the answer to each question is “No”, however, the answer could be different
depending on the specific circumstances of your case.

Whether you and your spouse reside in Greenwich or West Hartford Connecticut the Connecticut Child Support Guidelines (hereinafter “Guidelines”) apply to your case. The Guidelines define “shared physical custody” as: “a situation in which the physical residence of the child is shared by the parents in a manner that ensures the child has substantially equal time and contact with both parents. An exactly equal sharing of physical care and control of the child is not required for a finding of shared physical custody.” An example of shared physical custody is the Father having parenting time with the children every Monday and Tuesday, the Mother having parenting time with the children every Wednesday and Thursday, and the parents alternating every other weekend with the children. However, the division of parenting time could be less than in this example and still qualify as shared physical custody.

Contrary to popular belief, shared physical custody alone, does not relieve a parent of his or her child support obligation. Pursuant to the Guidelines, in a shared physical custody situation, “the presumptive current support order shall equal the presumptive current support amount of the parent with the higher net weekly income, payable to the parent with the lower net weekly income.” Thus, presumptively, the child support obligation is identical whether there is a shared physical custody situation or a non-shared physical custody situation.

In some cases, there may be special circumstances in which a deviation from the presumptive support amount may be warranted for equitable reasons. The two special circumstances delineated in the Guidelines which may warrant a deviation in a shared physical custody situation are: (1) such arrangement substantially (a) reduces expenses for the child for the parent with the lower net weekly income, or increases the expenses for the child for the parent with the higher net weekly income, and (b) sufficient funds remain for the parent receiving support to meet the needs of the child after deviation, or
(2) both parents have substantially equal income. The analysis that is applied to such a deviation is fact specific and determined on a case by case basis.

Family law attorneys sometimes incorrectly apply the “split custody” analysis to shared physical custody situations. The Guidelines define “split custody” as: “a situation in which there is more than one child in common and each parent is the custodial parent of at least one of the children.” An example of split custody is where one child primarily resides with the Mother and the other child primarily resides with the Father. In that situation, the Court would determine the presumptive child support amount if both children primarily resided with the Mother, and then determine the presumptive child support amount if both children primarily resided with the Father, and subtract the lesser amount from the greater amount. For example, if the Mother’s presumptive child support obligation was $750 per week, and the Father’s presumptive child support obligation was $250 per week, the Mother would pay $500 per week in child support to the Father.

The attorneys at Broder & Orland, LLC are experienced with the Connecticut Child Support Guidelines and the various deviation criteria. No two cases are the same. We will tailor an approach to suit the needs of your family using all applicable Connecticut