Month: February 2018

Should I Depose My Spouse in Our Divorce Action?

This Week’s Blog by Carole T. Orland

In all divorces cases in Connecticut a party has the right to depose his or her spouse pursuant to C.G.S.Sections 52-148a-152 and Connecticut Practice Book Sections 13-26. 13-331. A Deposition is a proceeding whereby the deponent is questioned and provides testimony under oath. It typically occurs in the office of the lawyer representing the party who is taking the Deposition. The spouse is either subpoenaed (served by a marshal) to appear or appears pursuant to a Notice of Deposition served on the spouse’s attorney. Most often, attached to the subpoena or the Notice is a schedule with document requests. These requests may include documents relating to a broad swath of items that relate to finances, custody and/or any issues in the case.

Some of these documents may have been produced prior to the Deposition and need not be produced again, except for updates if applicable. If the requests seek documents that are objectionable, for example if they are too broad or are harassing, the deponent’s lawyer can object and may file a Motion for Protective Order seeking protection from “annoyance, embarrassment, oppression or undue burden or expense.” Connecticut Practice Book Section 13-5. The Court will then decide what must be produced or not.

For all practical purposes the deposing attorney can ask almost any question that is tangentially related to the case and the deponent must answer unless he or she asserts a privilege such as attorney/client, therapist/patient or self-incrimination, or if the question is merely intended to harass the deponent.

There is no proscribed time for the length of a Deposition. Rarely is it less than a couple of hours but it may go on for several days, consecutively or over time, depending on the complexity of the case. The deposing party is entitled to be present but is not required to be there.

So the question arises, “Should I depose my spouse?” It is a decision that must be discussed thoroughly with your lawyer and experienced lawyers in Westport and Greenwich can assist you in making a strategic decision. Reasons for deposing your spouse may include: the efficiency of obtaining testimony under oath; the need to get documents and have them explained; the benefit of locking in testimony that can be used at trial; the opportunity for counsel to get a feel for the deponent’s veracity and demeanor; and providing the deponent with a reality check of the examination and scrutiny he or she will undergo at trial. However, there may be situations where you will not need to or want to depose your spouse, for example if he or she: has been forthright and attentive about supplying information and documents; no further explanations are required with regard to the documents; there is no suspicion of untrustworthy behavior; and you and your spouse are on amicable terms. Cost is also a factor to think about, as Depositions are time consuming and costly. You should also consider that taking your spouse’s Deposition can be an emotional event for both of you and can increase hostilities, which may then negatively affect future negotiations and settlement.

Our lawyers at Broder & Orland LLC have vast experience with Depositions and can effectively help you weigh the options and guide you to the correct decision when it comes to deposing your spouse.

Connecticut Divorce Decisions: Sex, Drugs, Alcohol, & Abuse*

This Week’s Blog by Eric J. Broder

In a recent Connecticut divorce decision a judge wrote:

[The husband] sometimes gave numeric ratings to the wife on her performance in bed; one morning after the parties had engaged in sexual intercourse, the wife woke to find a note from the husband informing her that she had earned a “0”.

Many people would be quite surprised to read a quotation like the one above. However, as a Connecticut divorce lawyer, this excerpt did not surprise me.  Instead, it made me realize that people getting divorced should know what type of information may be contained in a Judicial Decision – as many people are under the incorrect impression that Connecticut divorce decisions are sealed.

Are Connecticut Divorce Decisions Sealed?

No.  They are available to the public. Prior to the internet, in order to obtain a decision, you would have to go to the courthouse, stop by the clerk’s office, request a copy, and pay a fee.  Today, Connecticut divorce decisions are often available for everyone to read online and can be found with a simple Google search on a smartphone.

What Can Judges Write About in Connecticut Divorce Decisions?

Judges have great latitude to write about almost anything in relation to a marriage or family in a Connecticut divorce decision.  A judge will issue orders concerning custody, a parenting plan, alimony, child support, and the equitable distribution of assets in a divorce decision. He or she may also discuss their thought processes which led to the decision. This can, and often does, include detailed facts related to the causes of the breakdown of the marriage.

Can a Judge in a Connecticut Divorce Decision Case Discuss Extramarital Affairs?

Yes. Below are some excerpts from Connecticut divorce decisions:

  • When the husband was 35 years old he began a romantic and sexual relationship with another woman, who was then approximately 21 years old. The husband also commissioned an artist to paint a portrait of his girlfriend which he subsequently hung in the playroom of the marital home – not telling his wife that it was based on his girlfriend.
  • During the late months of 2012, the husband began a series of sexual interludes with women he had met via internet dating sites. He also visited massage parlors that provided sexual services. During that same time period… he continued to have regular sexual intercourse with his wife.
  • Just prior to the separation of the parties and the filing of this action, the defendant admitted to the plaintiff that he had been having sexual affairs with numerous (approximately fifteen) other women since the first or second year of their marriage. One of these affairs was with an employee of the restaurant and took place in an office room of the restaurant. Another of the affairs took place while the parties were on vacation with each other and another couple. The defendant had sexual relations with the wife of the other couple in their hotel room while the plaintiff and the husband of the other couple were down at the beach. These affairs were the cause for the breakdown of the marriage.
  • At a wedding reception… in front of his Wife and others, Husband allowed another woman to simulate an act of oral sex on him. Although Wife now claims that she was hurt by this incident, Wife demonstrated her own willing participation and endorsement of this rude and crude behavior by taking a photograph to memorialize this incident.
  • As a result of the parties’ swinging lifestyle, on or about New Year’s Eve, the defendant and the wife of the other couple became pregnant.
  • Equally hard to believe is the plaintiff’s story about her relationship with [Mr. X], a friend she met at the end of August 2004. In November 2004, the plaintiff and a close friend took a vacation to Key West, and lo and behold, guess who was in Key West during that exact period of time? Mr. X! And then the plaintiff planned a trip to the Bahamas, and guess who was also in the Bahamas at the same period of time? Mr. X!

Can a Judge in a Connecticut Divorce Case Discuss Drug/Alcohol Abuse?

Yes. Oftentimes substance abuse is an issue in custody and parenting conflicts as well as being a reason for the cause of the breakdown of the marriage. Below are some excerpts from Connecticut divorce decisions in which the judges discussed these issues:

  • The husband frequently consumed alcohol to excess, and sometimes became violent with the wife; the wife often came home late at night or not at all; there was a lack of sexual intimacy between the parties; he called the wife violent names such as whore and slut; he accused her of getting on her knees to get her job.
  • During most of the marriage, both parties consumed alcohol to excess but the husband’s drinking evolved into him becoming an alcoholic. He has probably been a problem drinker all of his adult life. He had worked as a police officer and he had one DUI arrest and a second DUI stop which did not result in an arrest, presumably due to his status as a former police officer.
  • Unfortunately, the defendant is an alcoholic. When he is drinking, he shows a lack of judgment. The defendant has had periods of sobriety. However, he has spent time at Fairfield Hills Hospital and at Guenster House. As a result of his alcoholism, the parties lost their home.

Can a Judge in a Connecticut Divorce Case Discuss Abuse?

Yes. Whether it is physical, emotional, or financial, a judge can and will discuss incidents and allegations of abuse as indicated below:

  • The Husband claimed the reason for the breakdown of the marriage was the Wife’s constant yelling, screaming, threatening and arguing. He believes she has serious emotional problems including excessive attention to cleanliness. The Wife claimed the Husband was physically abusive to her and the child, abused alcohol and drugs, may have been unfaithful, told her repeatedly that he did not want the baby, smoked or permitted secondhand smoke around the child who was prone to middle ear problems, had poor parenting skills, diet and cleanliness habits, did not have proper religious practices, was irresponsible, lazy, and a poor dresser.
  • That leaves a mother with so little fortitude and so few personal resources that she cannot protect her own child from a perceived danger. Hardly an endorsement for a custodial parent.
  • The level of [The Father’s] anger is apparent to all, and it calls his overall parental judgment into question…. [His] anger has already had negative consequences for his children just within the eighteen months since [the parties] have lived apart.

Are Financial Details of a Connecticut Divorce Case Sealed?

No. Actually, the court must unseal the financial affidavit, (a document which lists a party’s income, expenses, assets, and liabilities) during a trial. Moreover, a court’s decision will often discuss, analyze and/or list the parties’ assets, income history, and liabilities.

Who Can Read a Connecticut Divorce Opinion?

Anyone! For example:

  1. The parties’ children.  They may be young now, but some day they will be able to read all of the gory details of their parents’ relationship, allegations, and the judge’s findings.
  2. Any future dating prospect.
  3. A potential employer or client.
  4. Family and friends, which will add to the gossip mill.

Is it Really Necessary for Connecticut Divorce Judges to Discuss These Details?

I have discussed with a number of Judges why in judicial decisions they provide information regarding affairs and abuse issues. The most common answer is that they need to substantiate their decision and their impressions with facts.  Another common reply is that by including such information future litigants will realize that by going to trial the details of their personal lives will be out there for everyone to see. Hopefully, this will be a factor that will encourage people to settle their divorce.

*The names of the parties in all of the above-referenced cases have been intentionally left out this article to protect the anonymity of those involved. 

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.

 

How Do I Stop or Slow Down My Divorce?

This Week’s Blog by Jaime S. Dursht

There are instances where one spouse decides to file for divorce while the other spouse strongly desires to salvage the marriage. Sometimes the legal process is well under way when one or both parties suddenly decide to explore the possibility of reconciliation. Divorce clients throughout Fairfield County in towns from Greenwich to New Canaan to Weston find themselves in these situations, and are surprised to learn that the law provides a way for divorcing spouses to stop the process without losing the benefit of what they have already invested time and money in.

  • Gen. Stat. § 46b-53 allows a party to request conciliation within the first ninety days of the commencement of an action, which is automatically granted.
  • Gen. Stat. § 46b-10 allows a party to initiate conciliation at any time during the pendency of a case which is permitted with the approval of the Court.
  • The Automatic Orders that go into effect at the commencement of an action pursuant to Practice Book § 25-5 are not affected by the reconciliation period and remain in place.

In the first instance, the process involves the submission of a request to the clerk within the first ninety days following the filing of a complaint.  The clerk “shall forthwith enter an order to meet a conciliator. …” C.G.S. 46b-53(1). The conciliator may be a mutually agreed upon clergyman, physician, domestic relations officer or marriage counselor, and all communications during the consultations are absolutely privileged. C.G.S. 46b-53(c). Within the ninety day period or within 30 days of the request, whichever is later, the parties must attend two mandatory consultations with the conciliator.  The purpose is to determine the possibility of reconciliation or “of resolving the emotional problems which might lead to continuing conflicts following the dissolution of the marriage.” C.G.S. § 46b-53(b). Failure of either party to attend the consultations, except for good cause, results in no further action being taken on the complaint for six months following the return date. Id.

The second situation involves the filing of a motion at any time prior to judgment but requires the Court’s permission to halt the process for the purpose of attempting reconciliation.  The legal effect of reconciliation status is a stay of the proceedings, discovery deadlines and other mandatory Court obligations without prejudice, and either party may move to have the case restored to the docket.

The Automatic Orders that are issued to both parties upon the signing and service of the complaint pursuant to Practice Book §25-5 “remain in place during the pendency of the action unless terminated, modified, or amended by further order of the Court upon motion of either of the parties” and are therefore not disturbed by the reconciliation process.

Of course, it is always possible to end a case altogether by filing a withdrawal of the action.  Conn. Gen. Stat. § 52-80 provides that a party may withdraw an action as of right after the commencement of an action but prior to the commencement of a hearing on the merits.

The attorneys at Broder & Orland LLC are extremely knowledgeable in both the substantive family law and the applicable procedural rules to customize the legal approach that best serves an individual client’s needs, and which, occasionally, results in no divorce at all.