Month: September 2017

Unallocated Alimony and Child Support

Any parent contemplating divorce understandably wishes to know whether and to what extent he or she will be entitled to receive, or obligated to pay, child support and/or alimony.  However, many potential clients we speak to are unfamiliar with a third type of support — commonly referred to as “unallocated alimony and child support” — which in certain circumstances can be a useful (and sometimes critical) tool for resolving support issues in a divorce through negotiated settlements.  In simple terms, an unallocated support payment from one ex-spouse to another is an obligation that contains both alimony and child support components lumped together into a single payment.

In order to understand the potential benefits to both parties of an unallocated support obligation, it is first necessary to understand the different tax treatments that apply to child support payments and alimony payments.  In a nutshell, child support payments are neither tax deductible to the person making the payments, nor taxable as income to the person receiving the payments.  Alimony payments, in contrast, are taxable, meaning that such payments are tax deductible to the payor and taxable as income to the person who is receiving the payments.

When parties agree upon an unallocated support obligation, they are agreeing, for purposes of settlement, to lump child support and alimony together into a single payment, the entirety of which will be treated like alimony for tax purposes (i.e., tax deductible to the payor and taxable as income to the payee).

The fact that the payor receives favorable tax treatment on unallocated support payments while the payee receives unfavorable tax treatment on such payments begs the following question: why would the payee spouse agree to this arrangement?  The answer is that, under certain circumstances, it can benefit both parties to combine child support and alimony into a single unallocated taxable support payment.  This is typically the case where the spouse paying alimony and child support has a substantial income and the spouse receiving alimony and child support has little or no income of their own. The reason that unallocated support may be beneficial to both parties is that it allows the parties to shift income from higher tax brackets to lower tax brackets. As a result, the payor will ultimately end up keeping more of his or her income because of the ability to use the entire unallocated support payment as a tax deduction and will thereby have more disposable income available with which to pay support. Stated differently, due to the tax savings, the individual paying support may end up with more money than he or she otherwise would have if alimony and child support payments were made separately and, as a result, the receiving spouse (and children) can benefit from an increased payment amount than if they had received alimony and child support separately.  In this scenario, the entire family wins and the IRS suffers the loss.

In considering the use of an unallocated support award, it is critical to ensure that the support payment is set in such a manner so as to be an incentive to both the payor and the recipient. Generally speaking, an unallocated support award will not be advantageous for former spouses who earn similar incomes.

At Broder & Orland LLC, we regularly represent clients in Greenwich, Darien and other towns throughout Fairfield County and the state of Connecticut for whom unallocated support payments are advantageous, and we are well-versed in the complexities of such awards and how to use them as a settlement tool to maximize your post-divorce financial well-being.

Latest Issue of the Connecticut Bar Journal Published, September 2017

The most recent edition of the Connecticut Bar Journal was published earlier this month. Sarah E. Murray, one of the partners at Broder & Orland LLC, has presided over the Journal as Editor-in-Chief since January 2017.

Members can access the full issue here, while non-members can access more information at the Connecticut Bar Journal page on the Connecticut Bar Association’s website.

 

What State Has Jurisdiction over Custody of My Children? Part II

The previous post in this series discussed the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and this post will continue with the Parental Kidnapping Prevention Act (“PKPA”).

PART II – PKPA

The PKPA, codified at 28 U.S.C. §1738A, which was signed into law by President Jimmy Carter on December 28, 1980, establishes federal standards for the determination of child custody jurisdiction.  It requires a State to give full faith and credit to any custody or visitation determination made by another State, if the determination was made consistently with the provisions of the PKPA.  Further, a State may not modify a determination made by a State of another State, unless the issuing State no long has jurisdiction or if it declined to exercise jurisdiction.   A determination is consistent with the provisions of the PKPA only if:

  1. The Court has jurisdiction under its local laws (Connecticut’s local law is its version of the UCCJEA); AND
  2. One of the following conditions are met:

a.) Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

b.) (i) it appears that no other State would have jurisdiction under subparagraph (a), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c.) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

d.) (i) it appears that no other State would have jurisdiction under subparagraph (a), (b), (c), or (e), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

e.) The court has continuing jurisdiction pursuant to subsection (d) of this section.

 

Subsection (d) is a catchall provision which confers jurisdiction to a State that made a determination consistently with the provisions of the PKPA if it has jurisdiction under its local laws and it remains the residence of the child or a parent.

At first glance, it may appear that the provisions of the UCCJEA and PKPA are identical, however there are significant differences.  First, the PKPA involves a two part analysis, whereas there is only one analysis under the UCCJEA.  Thus, a determination could be valid under the UCCJEA (or local laws of a State), but it could be invalid under the PKPA if the provisions of the PKPA are stricter than the local laws of the issuing State.

Second, the PKPA interjects the concept of “best interest of the child” when referring to significant connection and substantial evidence, whereas the UCCJEA does not directly consider “best interest of the child.” The “best interest of the child” standard provides the court with broad discretion to exercise jurisdiction if it determines that there is no “home state.”  Thus, it may be necessary during a PKPA hearing to elicit testimony and offer exhibits related to the “best interests of the child”.  Contrary to popular belief, the PKPA statutory analysis does not always end with “home state” status.

The attorneys at Broder & Orland LLC are experienced with the PKPA 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.

Appeals in Connecticut Family Law Cases

Every Connecticut litigant has the right to appeal a final judgment entered by a trial court.  In divorce cases, these appeals often arise after the trial court enters financial orders, but, on occasion, there may be sufficient cause to appeal a trial court’s orders concerning the custody of and/or visitation with minor children.  In Connecticut, an appeal must be filed no later than twenty days after the court issues notice of its decision.  It is important that if you receive a decision from the trial court with which you disagree or that you do not understand, you seek out the advice of seasoned appellate counsel immediately.  If your former spouse is filing an appeal, you should speak with an appellate lawyer to make sure that your position is adequately defended on appeal and to ensure that your rights are protected during the pendency of the appeal.  The attorneys at Broder and Orland LLC have experience representing individuals in Connecticut’s Appellate Courts and can help answer your questions.

In Connecticut, most appeals from a trial court’s final judgment are heard and decided by the Connecticut Appellate Court.  After the Appellate Court has rendered a decision, a party can ask the Connecticut Supreme Court to review the decision of the Appellate Court.   On rare occasions, an appeal of a trial court’s final judgment can be heard directly by the Supreme Court without the need to seek review first with the Appellate Court.  This can occur when: (1) the appeal concerns an issue that has never been ruled upon by the Appellate Court or the Supreme Court in Connecticut; (2) the appeal raises an issue where the Appellate Court has issued disparate opinions in the past that are in need of being harmonized; or (3) when the Supreme Court determines that the issue at hand is a matter of utmost public importance.

Once an appeal is filed, the order(s) associated with the final judgment may be automatically stayed.  This means that until the appeal is finally concluded, the trial court cannot enforce the order(s) that are the subject of the appeal.  A common example of the automatic stay in practice in family cases occurs where the trial court orders that the marital home be sold.  Pursuant to the automatic stay rule, that order would not be enforced during the pendency of the appeal without the trial court terminating the stay of execution of that order.  The trial court can terminate the automatic stay of its orders on its own volition or after a motion is filed by either party.  In such a situation, the trial court is not the final arbiter of determining whether there should or should not be a stay of execution of its order.  A party aggrieved by orders regarding the termination of a stay can seek review of those orders by the Appellate Court.

There are certain exceptions to the automatic stay rule that are permitted by the Practice Book in family cases.  For example, final orders concerning periodic alimony, child support, custody, and visitation are not automatically stayed pending an appeal.  If you are unhappy with the court’s alimony orders, those orders will go into effect during the pendency of your appeal unless you ask the court to impose a stay where there is not one automatically imposed by the court rules.  The Appellate Court has the same power to review the issuance of a stay as it does the termination of one.

The likelihood of success on appeal is largely determined by the level of scrutiny applied by the Appellate Court.  The Appellate Court has broad authority to overturn a trial court’s decision when the decision rests upon a question of law which would include a constitutional claim, interpretation of prior precedents, and statutory interpretation.  This is referred to as plenary review; the Appellate Court decides the issue anew.  Issues concerning factual findings by the trial court or any other decision where the court has the discretion to enter an order as it sees fit is governed by the abuse of discretion standard of review.  Unlike plenary review, the Appellate Court will defer or give the benefit of the doubt to the considerations and determinations made by the trial court.  Mixed issues of law and fact invoke the plenary review standard.  The attorneys at Broder and Orland LLC can review your case to tell you which standard of review would apply to your case.

Unlike the trial court, the Appellate Court does not seek or require the submission of new evidence or new testimony.  The cases at this level are resolved after each party submits well-researched briefs and argues his or her position before the Appellate Court.  In addition to reviewing the trial court’s decision, preparation of an appellate brief requires review of the transcripts from the trial court proceedings at issue and review of the exhibits submitted to the trial court judge.   The party who filed the appeal files the first brief and the other party files a brief in response to the appealing party’s brief.  The appealing party gets the final word and files a reply brief to the responsive brief.  After all of the briefs are filed, the Appellate Court will schedule a date for oral argument before a panel of Appellate judges.  At the Appellate Court, the panel typically consists of three judges.  At the Supreme Court, the panel consists of seven justices.   A party may attend oral argument, but is not required to do so.

Broder & Orland LLC is a full-service family law firm that can provide you with seasoned, practical and vigorous representation in all aspects of family law appellate litigation in Connecticut.

What is a Guardian ad Litem?

A Guardian ad Litem, often referred to as “GAL,” is an individual appointed by the Court to ensure that the minor child’s best interests are represented during a parenting or custody dispute. Not every divorce case or custody dispute requires the appointment of a Guardian ad Litem. In fact, if at all possible, the Court tends to encourage parties to resolve parenting disagreements without the involvement of third parties.  When parties are unable to agree on custody or a parenting access arrangement, or if there are specific parenting issues that simply cannot be resolved, a Guardian ad Litem may be appointed to either assist the parties in reaching an agreement, or to inform the Court as to the best interest of the minor child.

A Guardian ad Litem may be appointed upon the Motion (request) of one party, the agreement of both parties, or when a Judge determines that a Guardian ad Litem is necessary in the case.  The role of a Guardian ad Litem is usually served by an attorney or a mental health professional. In order to be appointed, the Guardian ad Litem must be qualified by the Connecticut Judicial Branch after completing specific course training. Furthermore, the State of Connecticut Judicial Branch has developed a code of conduct which outlines the obligations, expectations and responsibilities of a Guardian ad Litem.

Although a Guardian ad Litem may be an attorney by profession, the role of a Guardian ad Litem is not the same as that of an Attorney for the Minor Child. An Attorney for the Minor Child, sometimes called “AMC,” is legal counsel for the minor child, both representing the child’s legal interest while considering the child’s best interest.  Conversely, the Guardian ad Litem does not provide legal representation to the child or the parties. No privilege exists regarding communications between the Guardian ad Litem and the child or the Guardian ad Litem and the parties. The Guardian ad Litem may serve, and often does, as a witness in the case at Hearings and Trial, and can testify about things that were said by the child and the parties, to the extend these communications are admissible under our Rules of Evidence.

At the time of the appointment, the Court will issue an Order with the specific duties of the Guardian ad Litem, which depend on the issues that are outstanding in the case. These duties may include, but are not limited to: investigating facts, interviewing the parties and the child, reviewing files and records, speaking to teachers, coaches and others, speaking to medical professionals, participating in Court hearings, making recommendations to the Court, and encouraging and facilitating the settlement of disputes.

While the Guardian ad Litem should be fair and impartial, this does not mean that he or she is not allowed to have an opinion or make recommendations.  Sometimes these recommendations will align more with one party’s philosophy of the case than the other’s. While the Court is not bound to accept the recommendations of the Guardian ad Litem, and the GAL does not make decisions for the Court, his or her recommendations and testimony are usually carefully considered by the Court when making a final determination about parenting issues.

The fees of the Guardian ad Litem are paid by the parties. The initial retainer amount and the hourly fee will be established by the Court at the time the Guardian ad Litem is appointed. If the parties cannot agree on an appropriate payment arrangement, the Court will make an order after reviewing the financial circumstances of the parties, including reviewing the parties’ signed, sworn Financial Affidavits.

The decision as to whether to appoint a Guardian ad Litem and then choosing the right person to serve as Guardian ad Litem is extremely important to the tenor and outcome of any custody dispute. The attorneys at Broder & Orland LLC are experienced in serving as Guardians ad Litem and litigating and settling cases where a Guardian ad Litem has been appointed.

What happens at an Uncontested Divorce Hearing in Connecticut?

When the parties reach a settlement agreement in a Connecticut divorce case, they are required (except in a few rare limited circumstances) to appear in the appropriate courthouse for an Uncontested Divorce Hearing. The specific courthouse depends on where the case is filed. For example, if you live in Greenwich or Darien you will be in the Stamford Superior Courthouse. If you live in Fairfield or Trumbull your case will be in the Bridgeport Superior Courthouse.

On the day of an Uncontested Divorce, you are required to have a number of documents signed and filed with the clerk. Specifically, you will need the following: the signed divorce agreement, Financial Affidavits from both parties, and if you have children, an Affidavit Concerning Children and the Child Support Guidelines worksheet. There may be also other documents required, subject to the specific settlement terms of your case.

Upon entering the courthouse on the date of your divorce you will be assigned to appear before a specific judge. The judge, or your attorneys, will ask you a series of questions with regard to your divorce agreement to ensure that you understand the terms and consequences and that you have not been forced to enter into the agreement.

Below is a list of questions that you are generally required to answer while under oath:

  1. Have you had the opportunity to review the final Separation Agreement in this matter?
  2. Have you had the opportunity to ask any and all questions of your counsel regarding this case and the Agreement?
  3. Are you fully satisfied with all of the advice given to you by your counsel regarding this dissolution of marriage action and the Agreement?
  4. Do you understand all of the Agreement’s terms and conditions?
  5. Do you understand that you are waiving your right to alimony that means you cannot come back to any court at any other time to seek alimony from the other party? (In cases where a Party is waiving alimony.)
  6. Has anyone tried to persuade you or force you to enter into this Agreement?
  7. Do you understand that if you were to have a fully contested trial in this case it is possible that you would receive a more advantageous result or a more detrimental result?
  8. Under all the circumstances, do you feel this agreement is fair and equitable?
  9. Are you satisfied with your counsel’s representation in this matter?
  10. Did anyone force to you enter into the Agreement?
  11. How is your health?

In addition to the above, your lawyer, or the judge, may run through the salient points of the agreement with you so that the court is fully apprised of the specific terms and conditions. In the event there is something rather unique or complicated in your agreement, the court wants to be sure you understand the issue.

Generally speaking, the actual process takes fifteen (15) minutes or less. Of course, there are other cases on the court’s calendar that day so we often tell clients to be sure to block out the morning or afternoon, as the case may be, because you never know whether you will be called first or last.