Month: March 2018

How Does My Divorce Impact My Last Will and Testament?

This Week’s Blog by Jaime S. Dursht

  • A divorce has the legal effect of invalidating a Will in its entirety if it was executed prior to January 1, 1977
  • If the Will was executed after January 1, 1977, only those provisions affecting an ex-spouse are invalidated and the remaining provisions stay in effect
  • The invalidated provisions of the Will are treated as revoked by the testator and the Will is interpreted as though the ex-spouse predeceased the testator
  • A divorce has no effect on the named Executors, Guardians and Trustees who are responsible for carrying out specific duties in accordance with the testator’s intent

Many married couples have what is called a “Sweetheart Will” which is a term that refers to a common inheritance plan between spouses whereby the surviving spouse receives the entire estate of the deceased spouse.  Since a Last Will and Testament is intended to carry out an individual’s final wishes as to the distribution of one’s estate, an ex-spouse would almost always fall outside the group of intended beneficiaries following divorce.

Prior to 1977 a divorce had the legal effect of revoking or invalidating the entire will by operation of law.  This rule still applies to wills executed before January 1, 1977.  The law changed in 1976 so that wills executed on or after January 1, 1977 are not revoked in their entirety by divorce.  Instead, those provisions that benefit an ex-spouse are treated as though the ex-spouse predeceased the testator, and the remaining provisions that are unaffected by divorce stay in effect.

Conn. Gen. Stat. Section 45a-257c provides, “If, after executing a will, the testator’s marriage is terminated by dissolution, divorce or annulment, the dissolution …shall revoke any distribution or appointment of property made by the will to the former spouse … unless the will expressly provides otherwise.  Property prevented from passing to a former spouse due to revocation by dissolution … shall pass as if the former spouse failed to survive the testator, and other provisions conferring power or office on the former spouse shall be interpreted as if the spouse failed to survive the testator.”

Making sure your estate planning documents are reflective of your last wishes with respect to the distribution of your estate is often an overlooked step following divorce.   Although the law provides for revocation by divorce to eliminate an ex-spouse’s interest, there may still be problems created regarding previously nominated executors, trustees and guardians who may no longer be appropriate or willing to carry out their duties.

With offices located in Greenwich and Westport, the attorneys at Broder & Orland LLC offer comprehensive guidance through the wide range of legal issues that arise during divorce as well as those that may be impacted as a consequence.  We are knowledgeable in identifying issues that may arise post-dissolution, and whenever appropriate refer our clients to Trusts and Estates attorneys to make sure estate plans may be carried out as intended.

Waiver of Estate Rights in a Prenuptial Agreement

This Week’s Blog by Andrew M. Eliot

  • In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive a minimum share of your estate (the “elective share”) upon your death
  • The “elective share” in Connecticut is comprised of the lifetime use of one-third of the value of all real and personal property owned by a party at the time of his or her death, after the payment of all debts and charges against that party’s estate
  • A spouse’s right to an “elective share” can be waived in a prenuptial agreement
  • It is not uncommon for parties entering into a prenuptial agreement to waive estate rights. Such waivers are most prevalent in matters where a party has children from a prior relationship, and wishes to ensure that his or her offspring will receive the entirety of that party’s estate upon his or her death

Typically, clients who are interested in entering into a prenuptial agreement are, at a minimum, seeking to protect their assets from a soon-to-be spouse in the event of a divorce.  However, as top divorce and matrimonial attorneys practicing in towns such as Greenwich and Westport will attest, many of our clients, particularly those who have accumulated substantial wealth prior to their anticipated marriage, are also interested in protecting their assets from a soon-to-be spouse in the event of their death. This sentiment most commonly arises in matters where a client is entering into a marriage later in life, and wishes to preserve his or her estate for a child or children from a previous marriage or relationship.  In such a scenario, prenuptial (or postnuptial) agreements can be a critical tool for estate planning purposes, as they are the only means by which a party can ensure that a spouse will not receive a share of his or her estate upon their death.

In order to fully understand this issue, it is first necessary to understand the basics regarding spousal inheritance rights.  In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive at least some minimum share of your estate in the event of your death, even if your Last Will and Testament states otherwise. (The amount of this minimum share—commonly referred to as the “elective share”—varies from state to state). Stated differently, absent an agreement in writing to the contrary, you may not, as a matter of law, disinherit your spouse. Instead, upon your death, your spouse will have the option of (a) receiving whatever was bequeathed to him or her in your will; or (b) retaining his or her elective share by “electing against the will.”  In Connecticut, a spouse who chooses to claim the elective share is entitled to the lifetime use of one-third of the value of all real and personal property owned by the other spouse at the time of his or her death, after the payment of all debts and charges against the estate (commonly referred to as a “one-third life estate”).

Notably, however, a spouse’s right to an “elective share” can be waived in a prenuptial agreement, assuming that the agreement is otherwise valid.  It is in this context that a prenuptial agreement can be used as an estate planning tool and, specifically, as a means of protecting assets from a spouse in the event of a divorce.

At Broder & Orland LLC, we have extensive experience negotiating and drafting legally enforceable prenuptial agreements at every level of complexity and sophistication, and can help ensure that your intentions with respect to your spouse’s inheritance rights are specifically addressed in your prenuptial agreement.

Sarah E. Murray Honored as Three Year Member of AIOFLA’s “10 Best in Connecticut”

The American Institute of Family Law Attorneys (AIOFLA) recognizes those who show excellence in their field and honors those attorneys who have achieved success for the benefit of their client. “AIOFLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Family Law without sacrificing the service and support they provide.”

Broder & Orland LLC is proud to announce that partner Sarah E. Murray has been named one of the “10 Best in Connecticut For Client Satisfaction” for the third consecutive year! More information about Attorney Murray’s accomplishment can be found on AIOFLA’s website.

Fault versus Cause of the Breakdown of Marriage Factor

This Week’s Blog by Christopher J. DeMattie

  • Since 1973 Connecticut has been a “No-Fault” divorce state.
  • Despite being a “No-Fault” divorce state, the Court must at least consider “the causes for the annulment, dissolution of the marriage, or legal separation.”
  • The Court has wide discretion in weighing the applicability of the “cause” element of the statutes when fashioning financial orders.
  • In some cases the spouse that “caused” the breakdown of the marriage is financially punished, while in other cases the spouse is not.

At Broder & Orland LLC, we are often asked how fault factors into the final judgment of divorce.  In 1973 the Connecticut Legislature passed Public Act 73-373, which amended Connecticut General Statutes (“C.G.S.”) §46-32 (now known as §46b-40) to permit a decree of dissolution of a marriage upon a finding that the marriage has broken down irretrievably.  Commonly, this is known as the “no-fault” divorce statute.  In Joy v. Joy, 178 Conn. 254, 256, (1979) our Supreme Court held that the statute was constitutional.

C.G.S. § 46b-81(c), provides the relevant statutory criteria that a court shall consider when assigning property, specifically it states:

In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. (Emphasis added).

In Posada v. Posada, 179 Conn. 568, 572 (1980), our Supreme Court held that “No-fault divorce does not mean that the causes of a marital breakup are always irrelevant, but it does mean that determining cause is not crucial to the judicial administration of matrimonial matters.” (Emphasis added).  The Supreme Court further stated: “In the text of the statutes, the criterion relating to ‘the causes for the … dissolution of the marriage’ is only one item in an extensive list of criteria that the trial court is directed to take into account. While it would be error for the trial court to refuse to hear witnesses who might attest to the causes of the marital breakdown, the court is entitled to weigh this evidence in conjunction with the other statutory criteria…”

In Jewett v. Jewett, 265 Conn. 669, 692 (2003), the defendant claimed that the trial court improperly “made erroneous findings of fact specifically related to [the] defendant’s fault” for the breakdown of the marriage.  The Supreme Court noted that the trial court did not make a specific finding of fault; rather, it dissolved the parties’ marriage on the grounds of irretrievable breakdown. The Supreme Court also held that “the trial court’s findings of fact regarding the defendant’s conduct, specifically his depletion of assets and that he had slapped the plaintiff, were amply supported by the testimony and the record.”  Id.

Thus, even though Courts no longer have to determine if either party was a fault for the marriage ending, the Court is required to at least consider the causes for the breakdown of the marriage when making financial orders.  Courts have found that substance abuse, physical abuse, dissipation, and/or affairs to be the cause of the breakdown of the marriage and have financially compensated the spouse that did not cause the breakdown of the marriage.  Conversely, Courts that have determined that one spouse caused of the breakdown of the marriage did not always financially compensate the other spouse.  This discrepancy is due to the Court having wide discretion when applying the numerous statutory criteria to the unique facts and circumstances of each case.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law, and divorce. As experienced divorce trial lawyers we understand how to effectively present “cause of the breakdown” issues to the Court, as well as how to “value” your case for settlement purposes.

Can You Enforce A Foreign Divorce Judgment in Connecticut?

This Week’s Blog by Lauren M. Healy

  • Divorce Attorneys in Connecticut may be asked to enforce a “foreign divorce.” In Connecticut, the term “foreign divorce” means a divorce that took place in another state or country.
  • If you move to Connecticut after getting divorced in another state, you can enforce the judgment in Connecticut so long as the issuing state had jurisdiction to enter the judgment, both parties filed appearances in the divorce action, and the judgment is final.
  • If you move to Connecticut after getting divorced in another country, Connecticut will still enforce the judgment as long as it is not contrary to public policy or the morals of this state.
  • Before you can enforce your foreign divorce, you must first follow Connecticut procedure to file the foreign judgment with the court.

Connecticut Will Give Full Faith and Credit to Out-of-State Judgments

“Full faith and credit” means that Connecticut must give an out-of-state judgment the same force and effect to which the order is entitled to in the issuing state. However, before full faith and credit is given, Connecticut has threshold requirements which must be met. First, Connecticut requires the issuing state to have had jurisdiction to grant the divorce. Proper jurisdiction means that at least one of the parties to the divorce action was domiciled in the state at the time of the order (even if domicile might not have been required in that state). Second, in order to enforce alimony and support orders, the Connecticut court requires both parties to have filed appearances in the out-of-state proceeding. This ensures that both parties were aware of the orders rendered by the foreign state. Third, the orders must be final orders, and not temporary in nature. For example, a judgment that is pending appeal in one state cannot be enforced in Connecticut until it is adjudicated.

Divorce Judgments from Other Countries May be Enforceable in Connecticut

A divorce decree rendered in another country is not given, per se, full faith and credit in Connecticut. However, the Connecticut court will generally recognize and enforce a divorce judgment from another country if it is not contrary to the public policy or morals of the state of Connecticut. For example, if the jurisdictional requirements of the foreign country were met, but those requirements are contrary to the public policy of Connecticut, the court in Connecticut may decline to recognize and enforce the judgment.

You Must File the Foreign Judgment in Connecticut Before You Can Enforce It

In order to enforce a foreign judgment, you must first follow a specific procedure to file the foreign judgment with the Connecticut courthouse in which you are seeking enforcement. For example, if you live in Darien or Greenwich, you would seek enforcement in the Stamford Superior Court. According to Connecticut General Statutes §46b-71, you must:

  1. File a certified copy of the foreign judgment.
  2. Submit a certification stating that the judgment is final and has not been modified, altered, amended, set aside, vacated, stayed, or suspended. The certification must also include the full name and last known address of the other party.
  3. If the judgment has been modified, altered, or amended, submit an affidavit describing the modification or amendment, as well as certified copies of the modification or amendment. The Connecticut court will ultimately enforce the judgment as modified, altered, or amended.
  4. Notify the other party of the filing, by certified mail or personal service, within five days, and provide proof of service to the court.

You will not be able to take any action to enforce the judgment for a period of twenty days, to allow the other party the opportunity to advise the court of additional terms or modifications of the judgment. Once the twenty days has expired, the matter will be assigned a docket number and you may proceed in attempting enforcement or modification of the order.

If you or your ex-spouse live in Connecticut and you need to enforce a foreign judgment, it is important to hire experienced counsel to guide you through the process. The team of attorneys at Broder & Orland LLC can help you assess your case, file your judgment, and litigate the enforcement as necessary.

 

Common Myths With Respect to Alimony in Connecticut

This Week’s Blog by Sarah E. Murray

  • Myth #1: Alimony is awarded for half the length of the marriage
  • Myth #2: Lifetime alimony means that the alimony payor must pay alimony for the rest of his or her life
  • Myth #3: My spouse works full-time; therefore, I do not have to pay alimony

There is No Law in Connecticut Stating that Alimony is Awarded for Half the Length of the Marriage

At Broder & Orland LLC, we hear many of the “myths” about alimony that our Fairfield County divorce clients learn, oftentimes through their social circles or the Internet.  It is important for us to dispel these myths so that our clients have the correct information before making decisions about alimony in their cases.  In some cases, people are pleasantly surprised and relieved to learn that the myths about alimony are not true.

One of the most common myths divorce attorneys hear from clients from Greenwich to Fairfield is that the term of alimony is half of the length of the marriage.  It is important for clients to realize that there is no law in Connecticut that says that alimony should be awarded for half of the length of the marriage, or for any other length of time, for that matter.  Judges in Connecticut have discretion under our law to award alimony for the length of time that they deem appropriate based on the facts of the case and the statutory factors set forth in General Statutes Section 46b-82, including the ages of the parties, the parties’ amount and sources of income, their health, their employability, and the assets awarded to them pursuant to the divorce, amongst other factors.  The length of the parties’ marriage is one of the factors that judges can consider in determining the duration of the alimony term, but it is not the deciding factor.

In some cases, half the length of the marriage is the appropriate duration of alimony because of the specific facts of the particular case.  It is important to keep in mind, however, that there are no “rules” as to what the duration of alimony must be.  Fairfield County divorce attorneys advise clients as to what the reasonable ranges are for the duration of alimony in a particular case based on their experience in the field and review of trends in Connecticut case law.

In settlements, duration of alimony can be negotiated to achieve a client’s particular goal.  Sometimes, a client may be willing to receive a lower amount of alimony than what may be typical based on the facts of the case in exchange for receiving alimony over a longer period of time.  Others prefer a higher amount of alimony over a shorter period of time than the norm.

Lifetime Alimony is not as Daunting as it Sounds

In long term marriages, particularly where one spouse did not work or received significantly less income during the marriage, the breadwinner spouse will hear that he or she has exposure for paying “lifetime alimony.”  Not surprisingly, this is often an unwelcome proposition for the breadwinner spouse.  At Broder and Orland LLC, we have clients ask us whether that means that they must pay alimony until they die.  They also want to know whether lifetime alimony means that they cannot stop working.

Lifetime alimony in Connecticut means that the alimony payor must continue pay alimony for so long he or she is working and earning income.  Unlike defined alimony terms that end on a specific date, lifetime alimony is written in Court decisions or settlement agreements as ending “upon either party’s death or the alimony recipient’s remarriage.”  What this language means is that, if the alimony payor continues working until age seventy-five and earns income from that employment, he or she will still have an obligation to pay alimony.

Lifetime alimony does not, however, prevent a person from retiring at a reasonable retirement age, usually no earlier than age sixty-five, though every case is different.  Reasonable retirement age can be dependent on the industry in which the alimony payor works or his or her profession.  Once the alimony payor is ready to retire, assuming that he or she is retiring at a “normal” retirement age, he or she has the right to file a Motion to modify his or her alimony obligation, requesting that alimony should cease on the basis of retirement.  Unlike defined alimony terms, lifetime alimony awards put the onus on the alimony payor to go back to Court to request modification of the alimony award on the basis of retirement.  Lifetime alimony does not mean, however, that the alimony payor cannot retire.

Alimony is Sometimes Awarded to a Spouse Who Works Outside of the Home

Some people living in Greenwich and Stamford may be surprised to learn that sometimes alimony is warranted in cases where both parties are gainfully employed outside of the home.  In certain situations, typically where there is a marked income disparity between the parties, the spouse who earns more income will have to pay alimony to the other spouse for a period of time.  The amount of alimony in these types of cases is usually less than what the alimony payor would have had to pay had the other spouse not worked outside of the home.

Contact a Top Fairfield County Divorce Attorney to Discuss Connecticut Alimony Law

There is no substitute for seeking the advice of an experienced attorney with respect to what the law is in Connecticut regarding alimony.  At Broder & Orland LLC, we can dispel any myths people may have heard regarding the amount of alimony typically awarded or the length of time for which it is awarded.