Category: Divorce

Do I Have to Go to Court?

This Week’s Blog by Christopher J. DeMattie

  • Public Act 17-47 excuses parties from having to go to Court to have a temporary agreement approved by the Judge
  • Connecticut General Statutes § 46b-66 requires the Judge to inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances
  • An Affidavit in Lieu Appearing may be appropriate in some circumstances and if appropriate, obviates the need to go to Court
  • You run the risk of sanctions, incarceration, and/or an adverse ruling against you, if you fail to appear at Court for a contested matter

At Broder & Orland LLC, our clients often ask us if they have to go to Court.  The answer is usually, “It depends.”  If the matter is uncontested – i.e. a signed written agreement, then you may not have to appear at Court. If the matter is contested – i.e. a trial or a hearing, you must appear at Court, and failure to do so could result in sanctions, incarceration and/or an adverse ruling against you.

If you and your (ex) spouse reach a temporary agreement on a pending issue, you no longer have to appear at Court to have your agreement approved by the Judge.  On October 1, 2017, our Legislature enacted Public Act 17-47 and as a result, the Judicial Branch created Form JD-FM-263.  The form states:

If you have reached a temporary agreement on any pending motions and you would like to have your agreement approved without coming to court, submit this form along with a signed, written agreement, current appearances for each party if they are not already on file, and any required supporting documents to the clerk. If the agreement contains a child support order and either party or a child is receiving IV-D services, you must have the Assistant Attorney General sign off on your agreement. This process is not for continuances, temporary restraining orders or Family Support Magistrate matters. For an agreement on a continuance, use the Motion of for Continuance (form JD-CV-21). For an agreement on a temporary restraining order, you must come to court on the hearing date.

Thus, if you follow the provisions of the Form, you and your (ex) spouse no longer have to appear at Court to have your temporary agreement, whether it relates to custody, alimony, child support, or discovery approved by the Judge.

If you and your (ex) spouse settle your divorce, generally you must appear at Court, however there are ways to avoid going to Court.  Connecticut General Statutes § 46b-66 states in pertinent part:

…in any case under this chapter where the parties have submitted to the court a final agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances.

Typically the Court’s inquiry is done by having the attorneys or the Judge canvass you and your (ex) spouse.  The canvass consists of you and your (ex) spouse being questioning about the agreement so that the Judge can determine that: (a) the agreement is fair and equitable, (b) that the agreement in the best interest of the child(ren), and (c) you and your (ex) spouse understand the terms of the agreement.

However, if you or your (ex) spouse unavailable to appear at Court an Affidavit in Lieu of Appearing could be submitted. The Affidavit typically consists of affirmative statements that you would swear to under oath. The statements would mirror the questions that you would be asked by your Attorney or the Judge in Court.  This way, the Judge would be able to satisfy the requirements of Connecticut General Statutes § 46b-66.

If your matter is contested, it means that you are scheduled for either a hearing or trial.  In contested matters, you must appear at Court, otherwise you could be sanctioned, incarcerated, or simply have the matter decided without your input.  It is never a good idea to fail to appear at Court if your matter is contested.

Broder & Orland LLC, with offices in Westport and Greenwich, Connecticut, concentrates specifically on the areas of family law, matrimonial law and divorce. In addition to being highly experienced lawyers with proven results, our hallmark is the attention we give to each of our clients. Additionally, whether a case requires aggressive litigation or a mediated solution, we always exhibit an abiding compassion for the people we represent and their families, recognizing that our mission is to assist them through a very difficult, life changing event.

You Lost Your Job-What Happens to Your Alimony Obligation?

This Week’s Blog by Sarah E. Murray

  • Connecticut General Statutes Section 46b-86(a) allows for modification of alimony under certain circumstances
  • The circumstances that resulted in your loss of employment and the terms of a severance agreement, if any, will have an impact
  • There are strategy considerations prior to filing a Motion to Modify
  • Consult with a top Fairfield County divorce attorney about your divorce decree so that you are armed with your options after losing your employment

Connecticut Law Allows Alimony Obligations to be Modified

At Broder & Orland LLC, we sometimes receive panicked phone calls from clients or former clients living in towns such as Greenwich, Stamford, and Westport who have lost their jobs.  The first question they ask is: what impact will the job loss have on their obligation to pay alimony?

Connecticut General Statutes Section 46b-86(a), the statute that addresses modification of support awards, provides that alimony obligations can be modified “[u]nless and to the extent that the decree precludes modification.”  So, unless your divorce agreement or Court decision states that alimony is non-modifiable, you have the option of modifying your alimony obligation based on the loss of your employment.

Connecticut law provides that, in order for a person to obtain a Court Order modifying alimony, the party seeking the modification must prove that there has been a substantial change in circumstances.   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 the circumstances at the time that a party seeks a modification of that Order.  Typically, a job loss in and of itself is considered to be a substantial change in circumstances.  However, the reason that you lost your job and the terms of your severance will be critical in determining the timing and success of your Motion.

The Reason for Your Job Loss and the Terms of a Severance Agreement are Significant

In deciding a Motion to Modify alimony based on job loss, a Court will look at why the alimony payor is no longer employed.  In Connecticut, there is case law that states that loss of employment resulting from a party’s “voluntary culpable conduct” will not be considered a substantial change in circumstances warranting a modification of alimony.  What constitutes voluntary culpable conduct is a factual inquiry.  If you were fired for cause, such as for violating company policies or other inappropriate conduct, it likely will be a stumbling block for you to obtain a modification of your alimony obligation based on job loss.

If you were let go from your employment as part of normal layoffs, and not as a result of any of your voluntary culpable conduct, the next inquiry is whether your circumstances have changed financially as a result of your loss of employment.  Many of our clients want to file a Motion to Modify alimony immediately upon losing their jobs.  If, however, a person receives severance payments for a period of time that are the same or substantially the same as the income received when employed, the receipt of that severance income means, in the eyes of the Court, that there has not been a substantial change in circumstances yet.

When Can I File a Motion to Modify?

It is natural, then, to ask: When can a Motion to Modify Alimony be filed after a job loss?  Every situation is unique, but generally the appropriate time to file such a Motion is toward the end of the severance payment term, assuming that you have not found a job before that time or, if you have found a job, your income at your new employment is now substantially less.

If you have not found new employment and proceed with a Motion to Modify, you can expect that one of the inquiries at the hearing on your Motion will be what you have done and what you currently are doing to find employment.  A Court will want to know that you have made and are making bona fide efforts to obtain employment at or near the level of your prior employment.  If you can prove that have been doing so and have not found employment, a Court likely will look more favorably upon your Motion.  Be sure to save all of your written communications regarding your employment search, as it could become evidence at a hearing on a Motion to Modify.

Contact a Top Fairfield County Divorce Attorney after Losing Your Job

At Broder & Orland LLC, our attorneys have significant experience handling cases involving the modification of alimony when a client has lost his or her employment.  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.  Losing your job can be one of the most stressful events in your life.  Meeting with an attorney to discuss your options can give you peace of mind and provide you with a plan going forward with respect to your alimony obligation.

What are “Automatic Orders” in a Connecticut Divorce Case?

This Week’s Blog by Lauren M. Healy

  • The Purpose of the “Automatic Orders” is to maintain the status quo with regard to your property or children.
  • The Automatic Orders apply upon the filing or service of a complaint or application for dissolution, legal separation, custody, or visitation.
  • The Automatic Orders may be modified, terminated, or amended by the Court once the action has started.
  • The Automatic Orders can be enforced by filing an appropriate motion with the Court.

Connecticut law provides that certain orders go into effect automatically at the beginning of a divorce, legal separation, custody, or visitation action. Parties to an action for dissolution of marriage, legal separation, annulment, legal custody, or visitation, are automatically subject to these orders which are attached to the Complaint that is filed by the party who has initiated the legal action and served on the opposing party.

The Purpose of the Automatic Orders

Family cases in Westport, Darien, and Greenwich often start with a burst of emotion and uncertainty. The Automatic Orders provide parameters with regard to the children and/or family finances in order to keep things “status quo” during the action. The Automatic Orders restrict certain actions that could disadvantage you or your spouse during the legal action.

Connecticut Practice Book §25-5 provides that neither party shall:

  • Sell, mortgage, or give away any property without written agreement or a court order.
  • Go into unreasonable debt by borrowing money or using credit cards or cash advances.
  • Permanently take your children from Connecticut without written agreement or a court order.
  • Take each other or your children off any existing medical, hospital, doctor, or dental insurance policy or let any such insurance coverage expire.
  • Change the terms or named beneficiaries of any existing insurance policy or let any existing insurance coverage expire, including life, automobile, homeowner’s or renter’s insurance.
  • Deny use of the family home to the other person without a court order, if you are living together on the date the court papers are served.

The Automatic Orders, Connecticut Practice Book §25-5, also contain requirements for you and your spouse to take action. For example, both parties shall:

  • Complete and exchange sworn financial affidavits within thirty days of the return date.
  • Participate in a parenting education program (if you share children under 18 years old).
  • Attend a case management conference on the date specified, unless you both agree on all issues and file a Case Management Agreement form with the court clerk on or before that date.
  • Tell the other person in writing within forty-eight hours about your new address or a place where you can receive mail if you move out of the family home (if you share children under 18 years old).
  • Facilitate the usual contact between the children and both parents in person, by telephone and in writing.

The Application of the Automatic Orders

The Automatic Orders go into effect and apply to the Plaintiff immediately upon the signing of the complaint or application, and apply to the Defendant immediately upon being served with a copy of the complaint or application.  They remain in effect during the entire pendency of the legal action, except if the orders are specifically terminated, modified or amended by a different order of the Court.

Enforcement of the Automatic Orders

Your assets are not frozen as a result of the Automatic Orders. For example, financial institutions are not notified of your pending divorce. Accordingly, it is still possible for your spouse to act in a manner that is contrary to these Orders. If your spouse does violate the Orders, you will need to bring it to the attention of the Court. The usual course of action is to file a Motion for Contempt of the Automatic Orders. In order to hold your spouse in contempt, the Court must find that your spouse willfully violated the terms of the Automatic Orders at a time when they were in effect.  In some limited circumstances, the judge may even extend a finding of contempt to include a time period prior to the date of service of the Automatic Orders, if the act was committed in contemplation of the filing of the action.

At Broder & Orland LLC, with offices in Westport and Greenwich, Connecticut, we are skilled at advising clients about the nuances and application of the Automatic Orders. We have experience in persuading the Court to modify or enforce of the Automatic Orders as the circumstances require.

 

How Does the New Tax Law Impact Alimony in Connecticut Divorce Cases?

This Week’s Blog by Carole T. Orland

  • The new tax law signed on 12/22/17 eliminates the alimony deduction for divorces and separation agreements signed after 12/31/18.
  • A payor cannot deduct alimony payments; a recipient will not pay tax on alimony.
  • The effect of the new law may mean greater tax impact for divorcing spouses and less available dollars for ex-spouse and children.
  • This law will affect alimony and unallocated alimony and child support payments.
  • Consult with counsel about finalizing your divorce by 12/31/18.

Should I make sure to get divorced in 2018, if I am going to pay or receive alimony? The short answer is that it would seem that way from what we can tell now. That is because on December 22, 2017, President Trump signed a sweeping tax overhaul bill, which includes an elimination of a 75 year-old tax deduction for alimony payments. This new measure will go into effect for divorces and separation agreements signed after December 31, 2018.

Currently, alimony is tax deductible to the payor and includible as taxable income to the recipient. The advantage of this is that it maximizes the available dollars to the recipient and makes it more attractive to the payor, by minimizing the overall tax effect. This paradigm has been instrumental in reaching out of court settlements in many cases as it typically will lower the tax bracket of the payor, shift dollars to the recipient who most often is in a substantially lower tax bracket, and reduce the amount of taxes that is paid to the federal government.

Additionally, in Connecticut divorces, we often see what’s known as “unallocated alimony and child support.” This is a combination of alimony to an ex-spouse and child support for the children. Child support, if paid separately, is not tax deductible by the payor or includible by the recipient, however when paid as an unallocated order, it is treated as alimony i.e. deductible and includible. Again, fashioning an unallocated alimony and support order has been an effective tool in maximizing available dollars, limiting taxes and most importantly, settling cases. Under the new tax law, the deduction for unallocated orders will be eliminated, after December 31, 2018.

It would appear, based on the above, that the new tax law will have a profound effect on the post-divorce financial situation of divorced parties, by increasing the tax burden and thereby making less money available to the recipient spouse and children. The practical effect is that it is likely to make divorce negotiations more difficult.

While alimony reform laws have been hotly debated in the last several years and states differ as to the availability and application of alimony, many Greenwich and Westport divorce lawyers have found alimony to be essential in allowing spouses to adjust to the post-divorce family economics. At the same time, skilled divorce attorneys have been able to settle cases by carefully crafting alimony and unallocated support payments that work to the advantage of both parties and the family.

If you are currently in the process of divorce and alimony is likely to be in the picture, you should consult with your attorney about concluding your case this year. Likewise, if you are thinking about filing for divorce this year or if your spouse is likely to do so, you should talk to an attorney about how the new law might affect you and whether or not your goal should be to get it done in 2018. Bear in mind, in Connecticut, divorces can often be a drawn out situation. It is not uncommon for them to take at least a year, start to finish. Now is the time to think about accelerating your case if the new tax law could have negative consequences for you.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we have years of experience in crafting separation agreements that take into account the tax advantages of alimony and unallocated support payments. We have also been successful at trial in obtaining for our clients orders that recognize the tax implications of these payments and which minimize the tax effect while maximizing the available dollars for the post-divorce family.

 

Spying on Your Spouse

This Week’s Blog by Jaime S. Dursht

In a high conflict divorce, spouses are often tempted to spy on each other in an effort to discover and capture evidence of suspected wrongdoing.  This includes for example, recording conversations, reading each other’s computer emails and cellular text messages, unlocking drawers and briefcases, and tracking each other’s whereabouts with GPS. Be careful! Spouses often incorrectly assume that because they are married that they are either exempt from the law governing such activity or may simply be oblivious to the possibility that it may be illegal.

As experienced divorce lawyers in Westport and Greenwich know, the rules of evidence prohibit the use of illegally obtained evidence, and Connecticut statutes specifically address the admissibility of electronic evidence.  Connecticut General Statutes § 52-184a provides, “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.”  With the routine use of iPhones and personal computers to preserve and store information, it is important to have an understanding of the rules to avoid negative consequences.

Computer Email.  Whether one spouse may access and read the computer email of the other spouse depends on the characteristics of the computer and email account.  One must be an authorized user of the computer, and have proper access to the email account or the owner’s consent.  Consent may be implied as in the situation when the account owner’s password is routinely used with his or her knowledge, but facts and circumstances are considered case by case.  For example, if the computer is a family home computer to which both spouses have open access then both are authorized users.  However, even if the computer is not password-protected, if an email account is password-protected and is accessed without permission, the obtained email may be subject to legal objections and/or injunctive relief in a motion to preclude or a protective order.

Text Messages.  Text message exchanges between spouses are commonly preserved and used to show verbal abuse, admissions, state of mind or sometimes to give the court a flair of the relationship.  The situation often arises when one spouse views incoming texts on the other spouse’s phone screen from a third party.  The viewing spouse may then capture the image by screen shot or forward the text to their own device.   If the phone screen was in plain view in an openly accessible area of the home, there is no rule that would protect the privacy of the displayed text messages that appear on screen.  However, if the phone was password protected and/or stored inside a personal belonging such as a purse or briefcase, there may be objections raised challenging admissibility on the grounds of improper access.

Recording Conversations.   In Connecticut it is illegal to record conversations without the consent of both parties to a telephone conversation.  CGS § 52-570d provides, “No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording. …”

If the conversation is in-person, there must be consent by at least one person who is a party to the conversation.  CGS § 53a-189 prohibits the unlawful mechanical overhearing of a conversation.  “Mechanical overhearing of a conversation” is defined as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.”  Thus, a spouse may not secretly plant a recording device in the other spouse’s car to record that spouse’s conversations with a third party.  The recorded conversation will be inadmissible in court, and was recently ruled unusable during the discovery process on the grounds that it would be unjust.  Simonson v. Simonson, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford, FA 156025703S, April 15, 2016 (Colin, J.).

Locked Containers.  “Marriage does not destroy one’s constitutional right to personal autonomy but, at the same time, each spouse does relinquish some of his or her rights to seclusion.”  In re Matter of Dubreuil, 629 So.2d 819 (Fla 1993).   Cases addressing spousal privacy in the home emphasize whether there is a manifestation of an expectation of privacy.  For example, when a wife found love letters and photographs of another woman in the home office filing cabinet, the court ruled the items admissible on the grounds that the wife had complete access to the storage room files and had a valid reason to be in the files.  “Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful.”  Del Presto v. Del Presto, 235 A.2d 240 (N.J. Super. 1967).  The most obvious manifestation of an expectation of privacy is a physical locking device so if you are considering breaking locks to access anything, consider that there may be consequences.

Divorce is a highly emotional and stressful time.  It is important to understand the boundaries of spousal “investigation” and to appreciate your own exposure in order to protect your individual privacy.  You should assume that anything you email, text, post online or communicate digitally will be discovered and used as evidence.  Change your email passwords regularly.  The best way to protect your privacy is to assume that there is little to no expectation of privacy during a divorce. The attorneys at Broder & Orland LLC are experienced with the evidentiary issues that often arise in the context of the spousal discovery process, and are adept at advising clients on how best to obtain information and conversely protect their individual privacy interests.

How Will My Divorce Impact My Taxes? PART I

This Week’s Blog by Amanda E. Ell

A divorce proceeding will impact your life in countless ways. Typically, when negotiating a divorce settlement, parties are focused on dividing assets and calculating the correct amount of support. One critical area that experienced divorce attorneys in Westport and Greenwich, such as those at Broder & Orland LLC consider is how a divorce will impact your taxes. Factors such as who will take the children as dependency exemptions and who will be entitled to take the mortgage and real estate tax deductions on the marital residence can easily slip through the cracks. Your divorce will impact your taxes in a number of ways, but three of the more important areas to consider are the following: your filing status, what exemptions and deductions you are entitled to versus those your spouse is entitled to, and the treatment of support payments. Part I of this article will address how a person’s filing status and the exemptions and deductions to which he or she is entitled are affected by divorce.

Filing Status

Your filing status in any given calendar year will depend on your marital status at the end of the year. If you are divorced at any time in a given calendar year, you and your former spouse are precluded from filing as a married couple in that year regardless of when your divorce occurs. This rule does not apply, however, until your divorce is finalized. If, for example, you begin the dissolution process in 2017 but do not obtain a final divorce judgment until May of 2018, you can file as a married filing jointly in 2017, but not in 2018.

Being precluded from filing as a married couple can have a significant financial impact on you and your former spouse. At Broder & Orland LLC, we often tell clients to seek the advice of an accountant with respect to this issue. An accountant can prepare pro forma tax calculations to give you an estimate of the difference in your tax liability if you file as single or head of household versus married filing jointly. Depending on the extent of the difference for filing solely versus jointly, it may make sense to postpone the date of your divorce, if possible, until the following year. Doing so will enable you and your spouse to file as a married couple for an additional year.

Once you and your spouse are divorced and filing separately, you will need to consider whether you qualify for head of household status. Filing as head of household is typically a favorable tax status, however, filing as head of household requires you to be unmarried, pay more than half the cost of keeping up a home for a year, and have a “qualifying person” (such as your child) living in the home with you for more than half of the year. If you are unable to file as head of household, you will file as a single taxpayer after your divorce, unless and until you are remarried and opt to file jointly with your new spouse.

Exemptions & Deductions

The next area to consider is what deductions you and your former spouse will be entitled to after your dissolution. If you have minor children, you likely take a child dependency exemption on your tax returns. As part of your settlement, you and your spouse will need to determine whether you will share the available exemption(s) or whether one party will always be entitled to the exemption(s). You will want to make sure that whatever you decide is supported by the relevant IRS and State of Connecticut tax regulations and is memorialized in your Separation Agreement.

If you and your spouse own a home at the time of your divorce, or you sold a home in the year you are divorcing, you will need to determine who will take the deductions for the mortgage interest and real estate taxes related to the home. Who is entitled to take these deductions can become an important point of negotiation in any well-drafted Separation Agreement. Factors that are considered when negotiating who can take these deductions include who paid the mortgage and real estate taxes during the marriage and during the divorce, who will be paying these expenses after the divorce, and who is keeping the house after the divorce. If the house is being sold as part of the divorce, another point to be negotiated in a settlement is who will be responsible for paying any capital gains tax, if applicable, in the year of the sale.

Part II of this series will discuss a third way that your divorce will impact your tax return: the treatment of support payments paid by one party to the other.

Am I Entitled to be Compensated for Assets Dissipated by my Spouse?

This Week’s Blog by Christopher J. DeMattie

When a divorce action is instituted in Connecticut, whether you reside in Greenwich, Westport, or any other municipality in this State, the Automatic Orders go into effect, which provide certain protections to your family’s assets. But what happens to the assets prior to the Automatic Orders going into effect?  Generally, you and your spouse are vested with the authority to spend marital funds for your own enjoyment, however there are exceptions which may entitle you to be compensated for your spouse’s spending during the marriage.

The controlling Connecticut law on “dissipation” is based on the rulings in the 2008 Supreme Court cases Gershman v. Gershman, 286 Conn. 341, (2008), and Finan v. Finan, 287 Conn. 491, (2008).

In Gershman our Supreme Court concluded that, at a minimum, dissipation in the marital dissolution context requires the alleging party to prove financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.

In, Finan, our Supreme Court expanded the elements provided in Gershman, to include that, in order for a transaction to constitute dissipation of marital assets for purposes of equitable distribution under § 46b–81, it must occur either: (1) in contemplation of divorce or separation; or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.

Thus, in order for you to make a dissipation claim you have the burden of proving ALL of the following elements: (A) the dissipation occurred either: (i) in contemplation of divorce or separation; or (ii) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown; (B) the financial misconduct involved intentional waste or a selfish financial impropriety; and (C) such financial misconduct was for a purpose unrelated to the marriage.

The element of “temporal restriction” established under Gershman and Finan create a potential cause of action to seek compensation for marital funds spent or transferred by your spouse prior to the Automatic Orders going into effect.  Proving this element often requires evidence about the state of your marriage at the time the financial transaction(s) occurred.

The elements of “intentional waste” and “selfish financial impropriety” as well as “purpose unrelated to the marriage” depend on the nature of the financial transaction(s). Courts have generally found that financial transactions related to gambling, drugs, alcohol, affairs, and extraordinary non-regular gifts to “friends” are unrelated to the marriage. Conversely, regularly reoccurring gifts to family members, funds spent on children, paying court ordered obligations, and even bad business decisions may not rise to the level of “intentional waste,” “selfish financial impropriety,” or “a purpose unrelated to the marriage.” These issues depend on the specific facts and circumstances of your marriage.

Therefore, even a sharp disagreement between your and your spouse over the wisdom of an expenditure, without more, does not necessarily render that expenditure a dissipation of martial assets.  The test is whether the asset was actually wasted or misused. Furthermore, the temporal restrictions better assist courts in determining the impropriety of a your spouse’s actions, namely, whether the actions were carried out, at least in part, to deprive you of assets that would otherwise be available for equitable division by the court.

If a Court determines that your spouse dissipated assets, the Court has the authority to issue remedial orders to make you whole or to fashion other orders such as awarding you additional assets or increasing or decreasing the alimony award, depending on whether you are receiving or paying alimony.

The attorneys at Broder & Orland LLC are experienced with dissipation claims in the marital dissolution context. We are adept at advising our clients on the strategies and the multitude of factors considered by a Court in fashioning orders related to a dissipation claim.

Should I Waive My Right to Alimony?

This Week’s Blog by Lauren M. Healy

When you are divorced in Connecticut, the Court may make an award of alimony–the payment of money from one spouse to the other (sometimes also referred to as “spousal support” or “maintenance”). Alimony is based on the presumption that spouses have a continuing duty to support each other financially while a divorce is pending and/or after the divorce is granted.

If your spouse has historically been the primary wage earner or primary source of financial support for the family, it is typical for that arrangement to continue after the divorce with an award of alimony to you, as the non-working or lesser earning spouse.  However, what happens when you and your spouse have similar levels of income, or if neither of you work? In that case, there may be an alimony waiver, or an award of “one dollar a year” of alimony.

An alimony waiver means that you and/or your spouse agree that no award of support, maintenance or alimony will be made by the Court at the time of the divorce. If you waive alimony at the time of your divorce, you are also waiving any claim for past or future alimony. There are different reasons why you may consider waiving alimony:

  • You are the primary wage earner in your family
  • You have not historically relied on your spouse for financial support
  • You and your spouse were married for a very short period of time
  • You and your spouse have similar levels of income
  • You are confident in your ability to support yourself in the future

There is no requirement that an alimony waiver be mutual. Alimony can be waived by one party and not by the other.  If you decide to waive alimony, at your divorce the Judge will ask you questions specifically about that alimony waiver, in order to determine that you understand what it means to waive your right to support and to verify that you can care for yourself financially.

What happens if you are comfortable waiving alimony at the time of your divorce, but do not want to preclude your right to ask for an award of alimony in the future? The answer may be that your spouse pays you “one dollar a year” in alimony for a certain period of time (the alimony term). The $1 is symbolic. It really means that no alimony will be paid to you for the time being, but it leaves the door open for you to ask for a modification of the alimony amount in the future. Leaving alimony open with an award of “one dollar a year” may be appropriate if:

  • You are currently working but your future employment is uncertain
  • There is a possibility that your spouse will return to the workforce or make significantly more money in the future
  • There are health concerns that prevent you from knowing if you will be able to support yourself in the future
  • You have been married for many years and you and/or your spouse are of advanced age

Experienced divorce counsel in Westport and Greenwich can help you determine if the circumstances of your case make an alimony waiver realistic or preferable to “one dollar a year” in alimony. At Broder & Orland LLC we are adept at advising our clients on the strategies and the multitude of factors considered by a Court in establishing an alimony award.

Dan v. Dan: Modification of Alimony in Connecticut Divorce Cases

This Week’s Blog by Eric J. Broder

The following is a discussion and summary of a seminal case when dealing with the modification of alimony in the state of Connecticut. Dan v Dan, 315 Conn. 1 (2014) has created quite a stir in the Connecticut divorce bar. It is an important case for practitioners and clients dealing with post-judgment alimony issues to understand. Below is an analysis of the case.

In 2000, a judgment of divorce was entered. The parties had been married more than twenty-nine years. They had three children, all of whom had attained the age of majority before the divorce. At that time of divorce, the Defendant’s base salary was $696,000.  The Agreement provided for the Plaintiff to receive $15,000 per month in alimony, as well as a sum equal to 25% of any bonus income that the Defendant received. The parties also agreed that the Defendant’s alimony obligation would cease when he reached the age of sixty-five or his retirement, whichever occurred first. The Defendant was 50 years old at the time of the divorce and the Plaintiff was 51 years old.

Ten years later, in 2010, the Plaintiff filed a modification of alimony, claiming that her medical expenses had “skyrocketed” and the Defendant’s income had increased substantially.   The Court found that the Plaintiff had failed to prove a substantial change in her circumstances because of an increase in her out-of-pocket medical expenses. The Defendant stipulated during the hearing, however, that he had a substantial increase in his income since the divorce and that this constituted a substantial change in circumstances.

In 2010, the Defendant worked excessively long hours to earn an annual salary of $3.24 million and an additional $3 million from cashing out stock options. At the time of the post-judgment proceeding, the Plaintiff was 61 years old, the Defendant 60 years old. Though the Plaintiff had several health problems, including diabetes that was poorly controlled, this was a circumstance which had existed at the time of the divorce. (The Plaintiff had no college degree and although she had once worked as a receptionist and executive assistant, she had not been employed since 1977.)

After addressing the statutory factors set forth in § 46b–82, the trial court granted the Plaintiff’s motion and increased the Plaintiff’s alimony award from $15,000 to $40,000 per month, plus 25% of any bonus in come that the Defendant received. The court modified the term of alimony to lifetime. In making its decision, the trial court focused on the length of the marriage, the health of the parties, the station and occupation of the parties, the amount and sources of income of each party, and the vocational skills of each party.

 The Supreme Court held that in the absence of certain exceptional circumstances, a substantial change in income standing alone was not sufficient to grant a motion to modify alimony.   The Court set forth a new inquiry to consider when the only substantial change is an increase in payor’s income: (1) Was the original award sufficient to fulfill the original purpose? (2) Does the award continue to fulfill the original purpose? The decision does not discuss in detail what exceptional circumstances might be.

In determining whether an alimony award should be modified when there has only been an increase in the payor spouse’s income, the trial court can only consider: the length of the marriage, the cause of the divorce, and the age, station, vocational skills and employability of the parties. However, these factors shall only be considered in the context of determining the initial intent of the alimony award.  They should not be considered as reasons for altering the purpose of the initial award.  The trial court does not have the discretion to retry issues that have already been decided.

The Supreme Court remanded for a new hearing because the trial court did not address the issue of whether exceptional circumstances existed in this case to justify a modification upward of alimony. The Supreme Court surmised that the original purpose of alimony in this case was to allow the Plaintiff to maintain the standard of living she had during the marriage. The trial court made no finding as to whether the original award continued to be sufficient to meet the original purpose of allowing the Plaintiff to maintain the standard of living she had during the marriage, which is a different question than whether her expenses are met.

Do I Need a Forensic Financial Expert in My Divorce?

In divorce cases at Broder & Orland LLC, we often add a forensic expert to our team. This is particularly true in the financial realm. Many of our cases emanating from Greenwich, Westport, and throughout Connecticut involve sophisticated financial structures, including interests in private equity, hedge funds, and venture capital entities. Disputes arise over valuation and issues like carried interest. It is therefore critical to involve a forensic with expertise in these areas.

Certain compensation structures involve stock options, restricted stock, phantom income, and deferred compensation. A financial forensic expert will assist counsel in analyzing documents so that nothing is left on the table. He or she will provide projections as to the realization of these items and help craft a mechanism for allocating them, sometimes “if, as and when” they are actually received, which is often after the divorce is finalized.

Another area requiring the involvement of an expert is the valuation of a business. The expert will review such items as tax returns, K-1s, profit and loss statements, balance sheets, general ledgers, operating agreements, partnership agreements, bank statements, and payroll documents. Additionally, the expert may do an analysis to normalize earnings to prevent double dipping, so that a reasonable compensation is extracted from the valuation of the business and not counted twice.

In other instances, we utilize a forensic expert to analyze spending in order to determine actual income. The expert will trace expenditures by reviewing bank account and credit card statements, as well as ATM withdrawals. It can be time consuming and laborious to pore over these documents, but it is especially necessary when a party has access to cash in a business.

We will occasionally involve an expert to trace offshore and foreign investments. The expert has access to a wide range of resources and industry tools that are helpful in tracking down these assets. He or she is well versed in analyzing and interpreting the data which is often complicated by design.

We also use forensic experts to analyze personal, partnership, and corporate tax returns. These returns often provide us with a trove of information which, when unscrambled by the expert, provides us with a clear picture of the parties’ finances. While experienced divorce counsel should have a good working knowledge of tax returns, we are typically not CPAs or accountants, and therefore consulting with such experts is often necessary.

So at what stage do we get the forensic financial expert involved? In our practice, it is often the very first call we make after our client retains us. Each expert brings personal strengths and perspectives to the case, and we want to make sure our client hires the optimal expert. Having our expert in at the outset also provides us with an overall understanding of the case and a roadmap as to the best and most efficient way to proceed. We have our expert design for us discovery requests which target the documentation we will need to prove our case, as well as to review and analyze those documents when we receive them.

We often use our expert during negotiations with our adversary, who most often has an expert as well. Many times, counsel instructs the two experts to talk to each other in order to resolve disputes and to assist in settling the case. This works particularly well when both experts are highly reputable and experienced and when they have mutual respect for one another. In many instances, we have our expert prepare us for depositions involving finances and sometimes we have our expert sit in on the deposition to assist as needed. A skilled expert can also be very valuable in the type of mediation we sometimes employ just prior to trial, where the model involves a former judge or esteemed member of the bar, counsel, and clients. It is usually the last best chance to settle the case and a talented expert can often be instrumental in arriving at a resolution.

Finally, in cases where trial is the only option, the financial forensic expert will not only assist in preparation, but also testify during the proceedings. The Court must qualify the expert before he or she can testify to substantive issues and before being allowed to render an opinion. Experts we use have been qualified many times in courts throughout the state, so it is rarely an issue in cases we handle. If an expert is to testify, counsel has previously filed a document known as an Expert Disclosure, which, according to our Rules of Procedure, Section 13-4, includes the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify; and the substance of the grounds for each such expert opinion. A well-drafted Expert Disclosure, prepared with the assistance of an experienced expert, will prevent any qualification and evidentiary issues at trial.

At Broder & Orland LLC, we have included financial forensic experts to our team in a multitude of cases. We know which expert is best suited for a particular matter and are adept at maximizing that person’s expertise to achieve the best results for our clients. While hiring an expert appears to add cost to the case, in the long run, it usually makes for a more cost effective way of developing that case and typically maximizes the financial results for the client. In short, it is most often money well spent.