Month: July 2017

What state has jurisdiction over Custody of my Children?

Due in part to the transient nature of modern society, Congress enacted legislation governing interstate custody disputes.  The two major legislative Acts are the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and the Parental Kidnapping Prevention Act (“PKPA”).  At Broder & Orland, LLC were are well versed in the nuances of these Acts and have successfully litigated the issues in the various Judicial Districts.  This three (3) part series will explore the interplay between the UCCJEA, PKPA, and their major exceptions.

PART I – UCCJEA

All states except for Massachusetts have adopted the UCCJEA.  The Connecticut version of the UCCJEA is codified in Connecticut General Statutes (“C.G.S.”) § 46b-115.  Pursuant to 46b-115k, except in emergency purposes, Connecticut has jurisdiction to make an initial custody determination if:

  1. Connecticut is the home state of the child on the date of the commencement of the child custody proceeding;
  2. Connecticut was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from Connecticut, and a parent or a person acting as a parent continues to reside in Connecticut;
  3. A State other than Connecticut does not have jurisdiction under subdivisions (1) or (2), the child and at least one parent or person acting as a parent has a significant connection with Connecticut other than mere physical presence, and there is substantial evidence available in Connecticut concerning the child’s care, protection, training and personal relationships;
  4. A State other than Connecticut, which is the home state of the child, has declined to exercise jurisdiction on the ground that Connecticut is the more appropriate forum under the UCCJEA, the child and at least one parent or person acting as a parent have a significant connection with Connecticut other than mere physical presence, and there is substantial evidence available in Connecticut concerning the child’s care, protection, training and personal relationships;
  5. All courts having jurisdiction under subdivisions (1) to (4), have declined jurisdiction on the ground that Connecticut is the more appropriate forum to determine custody; or
  6. No court of any other state would have jurisdiction under subdivisions (1) to (5).

The major factual dispute that arises out of a UCCJEA proceeding is: “what state is the ‘home state’ of the child?” C.G.S. § 46b-115a(7) defines “home state” as: “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period.”

According to the Connecticut Appellate Court, with regard to whether a court has jurisdiction, “the traditional requisite for subject matter jurisdiction in matrimonial proceedings has been domicil.”  Juma v. Aomo, 143 Conn. App. 51, 57 (2013).  “To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home…A former domicil persists until a new one is acquired…. Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old.”

Thus, the determination of “home state” is often a question of intent, which generally requires a hearing to establish the necessary facts.  Each case is unique, and some of the factors a court usually wants to know are: (1) where did the child attend school, (2) where are the child’s medical providers located, (3) where do the child’s lessons and competitions occur, (4) where is the parent registered to vote, (5) what state is the parent’s driver’s license, (6) what state did the parent file taxes and/or (7) what was the special purpose or reason for the temporary absence, if any?

The attorneys at Broder & Orland LLC are experienced with the UCCJEA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.

Getting Divorced in Connecticut when there is a closely-held business

Many divorce cases in Fairfield County involve parties who own and operate their own businesses, including law or medical practices, small businesses, and family businesses.  Parties living in Westport and Greenwich often want to know what will happen to the business in the event of divorce: Will the non-participating spouse get an ownership interest in the business?  Will the business have to be sold?

In divorce cases in Connecticut, the Court, among other things, is concerned with the income of the parties and the value of their assets.  Where there is a closely-held business in which a party has an interest, particularly if this business is the main source of that party’s income, the business is both a marital asset subject to equitable division and a source of income from which alimony or child support can be paid.

Each side should discuss with his or her attorney early in the case whether it is appropriate to hire an accountant or business valuation expert in order to assist in valuing the closely-held business interest and/or in assessing the income a party earns from the closely-held business.  Occasionally, parties and their counsel will agree to jointly hire an accountant or business valuation expert for these purposes.  At Broder and Orland, LLC, we frequently work with accountants and business valuation experts as part of our team when a closely-held business is involved.

At the beginning of a divorce case, discovery will need to be done in order to ascertain the income, expenses, assets, and liabilities of the closely-held business in which a spouse has an interest.  Accountants and business valuation experts can be helpful in crafting the discovery requests.  It is typical for the non-participating spouse to ask for and receive a copy of the books and records of the business operated by the other spouse.  It is not uncommon for a business valuation expert to seek, at a minimum, five years of tax returns and other financial books and records in order to accurately value a business.  If you own a business and plan on getting divorced, it is beneficial for you to begin to gather and organize these documents before you speak with a lawyer.  Being prepared early on in the process can lead to a quicker resolution of your case.

Once the discovery regarding the business has been exchanged, both sides begin their analyses.  Common issues that often lead to scrutiny may include: (1) deductions that do not qualify as business deductions under the IRS Code; (2) the failure to file tax returns; (3) the failure to segregate business financial accounts from personal financial accounts; and (4) the rerouting of profits or income to individuals other than the business owning spouse.  Sophisticated counsel will work diligently to make sure these issues are identified and addressed as soon as possible.

The business owned and operated by a spouse often (though not always) constitutes a significant portion of the family’s assets.  Except in rare circumstances, the spouse who owns the business typically retains his or her business interest in the divorce.  This does not mean that the spouse-owner will walk away with a greater portion of the marital estate, however.  The parties can agree or a Court can order that the business owner spouse “buy out” the other spouse’s marital interest in that asset.  If there is not enough cash or other assets available to offset the interest in the closely-held business, the spouse-owner can make payments to the other spouse over time to buy him or her out of his or her share of the asset in a manner that preserves the business as an income stream.  Sometimes agreements are structured so that “if, as, and when” a person sells the business interest after the divorce, the other party receives a certain percentage of the net sale proceeds.

A frequently discussed issue in divorce cases involving closely-held businesses is “double dipping.”  “Double dipping” refers to the idea that if a spouse is being “bought out” of the interest in a closely-held company that is also the family’s main source of income, the spouse being bought out does not also receive alimony as if the business asset had not been “divided.”  There are ways to avoid double dipping that also allow the non-participating spouse to receive sufficient support payments while sharing in the value of the business as an asset.

These are just some of the issues that arise when closely-held businesses are involved in divorce cases.  At Broder & Orland, LLC, our attorneys have significant experience representing both business owners and the spouses who do not have a direct interest in the business in divorce cases.  Regardless of which side we represent, we work creatively in structuring settlements that serve both parties’ interests with respect to the closely-held business in question.  We have also aggressively litigated divorce cases involving closely-held businesses, employing expert testimony and complex financial analysis on behalf of our clients.  Any person anticipating a divorce where a closely-held business is at stake should consult with an attorney in order to get a better understanding of how Connecticut law views closely-held businesses in divorce cases.

 

What to expect at trial

Most cases are settled before they reach a final trial, and for good reason. Trials are emotional, unpredictable and costly. However, sometimes a settlement simply cannot be reached despite the efforts of the parties and their attorneys. If your case does not settle, what can you expect at trial?

Ten days before your trial begins, your attorney will exchange Pretrial documents with your spouse’s attorney, including sworn Financial Affidavits, Proposed Orders, Witness Lists, Exhibit Lists, and lists of Pending Motions. This pretrial exchange of materials is intended to streamline the trial so that the Judge and the parties know in advance which documents will be offered as evidence, the witnesses who will testify, the relief either party is requesting, and the issues that need to be resolved by the Judge’s Orders.

It is occasionally necessary for a Judge to resolve specific issues before the Trial officially starts. For example, if there is a question about the admissibility of evidence related to an expert witness, your attorney may file a Motion in Limine or a Pretrial Motion that is argued before the start of your Trial.

In Connecticut, we do not have jury trials in divorce cases. Your divorce case will be presented to and decided by a Judge. The Courtroom is typically open to the public during your trial. Accordingly, you can expect that strangers may be sitting in the courtroom and watching your case!

On the first day of Trial, your attorney can ask for permission to make an opening statement. The opening statement is an overview of the facts and evidence that you will present during the trial. It is an opportunity for your attorney to tell the story of your case in a non-argumentative, but persuasive, manner. If you are the Plaintiff, your attorney will present the first opening statement.

As the Plaintiff, you will then present your case in chief to the Court.  Your attorney will call upon your witnesses to testify on your behalf, through direct examination. Witnesses who testify at your trial will either be considered fact witnesses— someone who testifies about things they have personally observed that are helpful to your case, or expert witnesses—someone with a special skill or knowledge who can assist the Judge in understanding the evidence of the case. Your attorney will choose the order of the witnesses who testify on your behalf, including the order of experts or the Guardian Ad Litem, if custody is at issue.

When your attorney is finished questioning a witness, your spouse’s attorney will have the chance to ask questions. This is called cross examination. During cross examination the attorney will try to discredit the witness or highlight any inconsistencies in the witness’s testimony. The attorney may ask leading questions, a question that prompts or encourages the intended answer.

When direct and cross examination of your witnesses is completed, it becomes your spouse’s, the Defendant’s, turn to present his or her case in chief. Your spouse’s witnesses will be called upon to testify and the same protocol is followed, each attorney is able to question the witnesses, through either direct examination or cross examination.

Next, each attorney will have the opportunity to present a closing argument to the Judge. The closing argument is your attorney’s chance to make persuasive arguments on your behalf, to tell the Judge what you want and highlight the evidence that supports your position.

The length of Trial will depend upon several factors, such as the number of witnesses, the complexity of the issues involved and, perhaps most significantly, the Court’s schedule and availability. Trials can last anywhere from a few hours to weeks. It is often hard to predict exactly when the trial will be concluded because legal and scheduling issues sometimes arise in the midst of the case.

At the end of trial, the Judge may ask for post-trial briefs, particularly if there are complex issues or complicated facts. Once the briefs are submitted to the Court, the Judge has 120 days to issue a decision. If the Court does not require briefs, the 120 days runs from the last day of trial.

 

Under Connecticut Divorce Law, Can you modify an Alimony Order that has already been modified?

This exact issue was a subject of a well-known case entitled Borkowski v. Borkowski, 228 Conn. 729 (1994). Recently, I spoke at the Connecticut State Bar Association’s Annual Conference and Borkowski was amongst the cases I presented.  The following explanation summarizes the court’s decision and addressed the following:

Issue presented: When a party files a motion to modify alimony following a prior modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?

Short Answer: No. The trial court’s inquiry should be limited to whether there has been a substantial change in circumstances from the date of entry of the most recent court order to the present. In this case, the trial court had improperly considered facts going back to the time of entry of the original divorce decree.

Statement of the Facts: The parties were married in 1968 and divorced in 1983 after a 15-year marriage. The Defendant-Husband was ordered to pay $3,000 per month in unallocated alimony and child support.  On February 25, 1988, the Defendant sought a modification of the unallocated alimony and child support order on the grounds that one of the minor children had reached majority and another had moved into the Defendant’s home.  Pursuant to the Defendant’s motion, the unallocated support order was reduced by $500 per month requiring the Defendant to only pay $2,500 monthly. On March 30, 1990, the Defendant filed a second motion for modification to reduce the unallocated order on the basis that a second child had reached the age of majority.  While the Defendant’s motion was pending, the Plaintiff filed a motion for an increase in the unallocated order on the grounds of increased medical expenses. Both parties’ motions were granted, the unallocated order remained $2,500 a month ($250 decrease as to Defendant’s Motion, and a $250 increase as to Plaintiff’s Motion, effectively cancelling each other out).

The Defendant then filed a third modification motion on April 12, 1991, seeking a modification by reducing and/or terminating the unallocated support payable to the Plaintiff and/or entering a separate order of child support for the remaining minor child not in his custody.   The trial court found that there had been a substantial change in circumstances based on a decrease in the Defendant’s income and an increase in the Plaintiff’s income.  Additionally, the Plaintiff had a medical condition, which had been complicated by a 15% permanent disability of her cervical spine.  On the basis of these findings, the trial court granted the Defendant’s motion to modify the unallocated order, but denied his motion to terminate alimony.  Specifically, the trial court separated the unallocated order into distinct alimony and child support orders and reduced the Defendant’s total amount of monthly payments to the Plaintiff.

The Defendant appealed on the basis that, in making its orders, the trial court had improperly considered evidence of events and conditions that had occurred prior to the most recent modification of the unallocated order. The Defendant argued that the trial court should only have considered any changes which occurred subsequent to the most recent modification. The Defendant also argued that the following should not have been permitted by the trial court: (1) the Plaintiff’s testimony about the cause of her spinal injury in 1981, and about the deterioration of her medical condition at that time; (2) the Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree); (3) the Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 in 1983; and (4) the Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

Holding: To avoid the re-litigation of matters already settled, courts in modification proceedings are limited in their inquiry to a comparison between the current conditions and the last court order.

With respect to each of the specific evidentiary issues presented, the court held the following:

(1) The trial court properly permitted the Plaintiff’s testimony about the cause of her spinal injury in 1981 and about the deterioration of her medical condition at that time. Although both the Plaintiff’s injury and her surgery predated the most recent modification, she only developed her 15% permanent disability subsequent to the modification (testimony to the early cause of injury was necessary to establish a foundation as to how she developed the 15% permanent disability);

(2) The Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree);

(3) The Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 thousand in 1983; and

(4) The Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

– With respect to issues 2, 3 and 4, the Supreme Court found that the trial court improperly admitted evidence about the Defendant’s business receipts, the Plaintiff’s diminishing interest in an investment account and evidence of the Plaintiff’s terminated interest in the Defendant’s retirement plan. All of these events dated back to the original divorce decree.  Evidence concerning each of these specific financial changes had been raised and considered at earlier modification hearings.

The Supreme Court held that the trial court’s improper and prejudicial evidentiary rulings required its decision to be set aside. The judgment of the Appellate Court was reversed and the case was remanded with direction to reverse the judgment of the trial court and to remand the case for a new hearing on the Defendant’s motion for modification.