Month: December 2017

The Basics of Bird Nesting

This Week’s Blog by Carole T. Orland

On occasion, clients who consult with divorce lawyers in Greenwich, Westport and other Fairfield County cities and towns, inquire about arrangements where the children stay in their home and the parents alternate moving in and out. This is commonly known as “bird nesting.” The motivation for this type of parenting plan is often financial. Parents sometimes recognize an inability to have two homes that are adequate to meet the needs of their children, especially during the pendency of a divorce. Or sometimes parents feel they are being more compassionate toward their children if they keep them full time in the home they are used to, particularly when the divorce action has just started and emotions are raw.

For these reasons, bird nesting sometimes may be a reasonable short term solution, however it is rarely ideal. Unless the family home is very expansive, privacy of each parent can be an issue. Sharing rooms, particularly the former marital bedroom, can lead to unwanted encroachment of personal space. It can also create emotional confusion for the children. Usually, a clean break although painful in the short term, is more realistic.

Certainly once a divorce is final, bird nesting is rarely practical. An alternative that works in some cases is to have both parents live in close proximity to each other. Although this means the children go back and forth, if both parents remain in the same neighborhood, the children are able to sustain their connection with what is familiar and comforting to them. Of course, this means the divorced parents must feel comfortable being in proximity to a former spouse, which often is not the case given the contentiousness that permeates many divorces. So like concentric circles, moving further out but still in the same geographic location is often the best move.

Children are generally resilient and in time most get used to two households. Often it is a relief from the tension and fighting they have observed prior to the divorce, sometimes for many years. And they may even think it is “creepy” for their parents to bird nest once the divorce is inevitable or after it occurs.

If you are considering bird nesting, it can be helpful to consult with a therapist who can meet with the parents and children, sometimes in different constellations, so that everybody can express their true feelings and concerns about such an arrangement. And it is a good idea to establish clear ground rules that ensure privacy and respect.

At Broder & Orland LLC, we are able to develop bird nesting plans that meet our clients’ needs. We are creative in our approach and thoughtful in the execution. We also assist our clients in remaining flexible when it is necessary to tweak or modify an arrangement that might work better for the family as time goes on.

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.

Child Support & Children’s Expenses

This Week’s Blog by Amanda K. Rieben

Many clients come to our office from towns in Fairfield County wondering which children’s expenses they will be required to contribute toward as part of their child support obligation. While the Court may order both parents to contribute toward certain children’s expenses, there are some children’s expenses which parents are statutorily required to contribute toward, whereas there are other children’s expenses which are entirely discretionary.

The Court has the authority pursuant to Connecticut General Statutes § 46b-84, to establish a schedule and an amount of child support to be awarded, including a percentage contribution by the parents toward certain children’s expenses.  Specifically, Connecticut General Statutes § 46b-84, provides that “subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.” In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance, the court shall consider the age, health, station, occupation, amount and sources of income, estate, vocational skills and employability of each of the parents and of the child.  The Court shall also consider each parent’s earning capacity and the child’s education status.

While the Court’s authority to award child support is governed by Connecticut General Statutes § 46b-84, the schedule and amount of child support to be awarded are determined by the Child Support Guidelines in accordance with Connecticut General Statutes § 46b-215(a). The Connecticut Child Support Guidelines include a worksheet and instructions for determining the amount of weekly child support owed by the parents up to a combined net weekly income of $4,000.  In addition to a weekly amount of child support, parents are also obligated to contribute a certain percentage toward unreimbursed medical expenses, as well as child care. Parents are also obligated pursuant to statute to provide health insurance for any child whom the Court deems is in need of maintenance.  However, parents are not statutorily required to contribute toward many children’s expenses, such as sports and/or music activities, sports equipment, musical instruments, camps, tutoring, SAT prep courses, or driving classes.  Additionally, parents are not statutorily required to contribute toward certain educational expenses like private school tuition (other than college in certain circumstances) and uniforms.

Although, a parent is not statutorily required to contribute toward the aforementioned child related expenses, the Court has the discretion to order for either or both parents to make financial contributions toward these expenses. In making a determination as to whether such an order is appropriate, the Court will consider the §46b-84 statutory factors discussed above.  The Court will also consider several other factors which may include how long the child has been engaged in the activity and/or enrolled in the school, whether one or both of the parents as a child was ever enrolled in the school and/or activity, the emotional impact on the child, the child’s best interests, and the financial impact on the parents. If a Court ultimately determines that the parents shall contribute toward a child related expense, the percentage is often consistent with the percentages the parents are required to contribute toward unreimbursed medical and child care expenses pursuant to the Connecticut Child Support Guidelines.  However, this is not always the case. In some instances a Court may direct one parent to be solely responsible or responsible for a disproportionate share of a child related expense, depending whose decision it was to continue to enroll the child in that extracurricular activity and/or school.

At Broder & Orland LLC we recognize the financial constraints that a pending divorce can pose on both parents, and the effects that this can in turn have on their children. We understand the multitude of factors considered by a Court in establishing a child support order, and we are adept at helping and advising our clients how to financially plan for their children’s future.

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.