Month: January 2018

Will Cheating Impact My Divorce?

This Week’s Blog by Andy M. Eliot

  • Connecticut is a “no-fault” divorce state; in order to obtain a divorce, one party need only allege that the marriage has “broken down irretrievably.”
  • “No-fault” divorce is distinguishable from the concept of “marital fault” in a divorce. In Connecticut, courts are permitted to consider the causes of the breakdown of a marriage in determining financial issues such as property distribution and alimony.
  • Notwithstanding that Courts may consider the cause of the breakdown of a marriage in fashioning financial awards in a divorce, as a practical matter, instances of infidelity typically have little or no impact on financial outcomes in a Connecticut divorce.

Divorce attorneys practicing in towns such as Greenwich and Westport regularly receive inquiries from clients or potential clients wishing to know what impact, if any, marital infidelity will have upon their divorce.  The query may come from a spouse who has engaged in an extra-marital affair and is concerned he or she will be penalized financially for his or her transgression.  Alternatively, it may come from an aggrieved spouse who, upon learning that his or her spouse has engaged in an extra-marital relationship, seeks to be compensated somehow in the divorce for the other party’s misconduct.

In examining this issue, it is important to first understand the difference between “no-fault” divorce and “marital fault,” two distinct concepts that are easily confused.  Like most states, Connecticut has a “no-fault” divorce statute, which enables any married person to obtain a divorce from his or her spouse without having to prove, or even allege, that their spouse is responsible for the deterioration of the marriage.  Instead, in order to obtain a divorce in Connecticut, one party need only allege that he or she believes that the marriage has “broken down irretrievably.”

Notably, however, Connecticut Courts are permitted, pursuant to statute, to consider what caused the breakdown of a marriage in fashioning property distribution and alimony awards in a divorce. In other words, if a Connecticut court determines that one party bears more of the blame for the breakdown of the marriage than the other, the court may, in its discretion, award the less blame-worthy spouse a greater share of the marital estate than he or she might otherwise have received, or grant that party a more favorable alimony order than he or she might otherwise have received.  It is in this context that any instances of infidelity may be relevant to the financial outcome of a divorce – since such conduct might have caused (or at least contributed to) the breakdown of the marriage.

That said, many potential clients with whom we speak have a fundamental misunderstanding of how significant (or insignificant, as the case may be) an impact instances of infidelity are likely to have upon the outcome of their case.  As hurtful or abhorrent as infidelity is to most people, the practical reality is that it is rarely a transgression that moves judges to penalize an offending party financially in a divorce, except in the most egregious circumstances and usually only if there are additional factors in play that render that party more blame-worthy than his or her spouse for the breakdown of the marriage.  Moreover, even in situations where a judge is inclined to award a non-offending party a more favorable financial outcome based upon the misconduct of the other party, the Court is likely to do so only to a very modest degree.  One noteworthy exception to the foregoing arises in situations where a cheating spouse dissipates marital resources in connection with an extra-marital relationship (for example, by purchasing lavish gifts for a paramour or paying for secret vacations together).  In this type of scenario, judges are much more inclined to compensate the non-offending party for the offending party’s dissipation of marital resources, if it was done in contemplation of divorce.

Divorce cases in which “cause of the breakdown” is an issue that materially alters the outcome of a case are somewhat rare, but they certainly do exist.  At Broder & Orland LLC, we have extensive experience with such cases and can help clients evaluate and navigate “cause of breakdown issues” to ensure that the most favorable outcome possible is achieved.

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 questioned 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 are 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.