Month: June 2018

How Does My Motion Get Heard by a Judge?

This Week’s Blog by Christopher J. DeMattie

  • The short calendar is a date when motions are scheduled to be heard.
  • Non-emergency motions get filed with the clerk and then scheduled on the short calendar.
  • Once a motion is scheduled on the short calendar, you have to mark it ready in order to proceed.

What Types of Motions Get Scheduled on the Short Calendar?

Any non-emergency motion gets scheduled for at least the first time on the short calendar.  Emergency, or ex-parte motions, are temporarily decided on the papers without a hearing, and then get scheduled for a hearing within fourteen days of the temporary orders being entered.  Examples of non-emergency motions are as follows: alimony, child support, discovery, modification, contempt, compel, custody, and parenting time.  At the Stamford Courthouse, the short calendar occurs on Mondays and at the Bridgeport Courthouse, the short calendar occurs on Thursdays.  The exception is if a court holiday falls on the short calendar date. Other courts throughout the state have different short calendar dates.

What is a Ready Marking?

After a motion is filed with the clerk, or e-filed in cases filed after October 2015, the motion gets published to the short calendar.  Currently, at the Stamford Courthouse it typically takes approximately four weeks from a time a motion is filed until the short calendar date is assigned.  The typical time at the Bridgeport Courthouse is approximately two weeks.  Just because a motion is published on the short calendar, it is not automatically heard on the short calendar date.  To proceed on the short calendar date, the motion must be marked ready.  To mark a motion ready, you must call the clerk or do so electronically.  Once a motion is marked ready, the other party must be notified.  The marking period is typically the week before the short calendar date.  If the motion is not marked ready, then it cannot be heard at the short calendar.  To have a motion heard that is not marked ready, it must be reclaimed and it is then published to a subsequent short calendar and then marked ready.  Typically, a motion cannot be reclaimed more than three months after it was filed.

What Happens at the Short Calendar?

On the short calendar date the motions are assigned to a specific judge and all parties must report to that Judge’s courtroom.  There, the Judge will typically proceed with a calendar call in which every case is briefly addressed to determine what business, if any, will be addressed that day.  For example the attorneys could report any one of the following to the Judge: the motions will be continued by agreement, the motions will be marked off, an agreement was reached, the parties should proceed to family relations for mediation, or short legal argument is required.  Prior to having an evidentiary hearing, the parties and counsel must first try to resolve factual issue(s) at family relations.  If family relations is unsuccessful, then the motion is eligible for a hearing.  If a motion will take less than hour and if the court has time, it will be heard that day.  If the motion will take longer than an hour, the matter will typically not be heard that date and will be scheduled for a date certain in the future, which unfortunately is often many months in the future.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law, and divorce. We are typically present at each short calendar and our vast experience with the short calendar procedures enables us to efficiently navigate our clients through the process in order to get their motion(s) heard as quickly as possible under the circumstances.

 

What is the Significance of the Case Management Agreement in a Connecticut Divorce?

This Week’s Blog by Sarah E. Murray

  • The Case Management Agreement is a document that must be filed in every Connecticut divorce case.
  • The Case Management Agreement includes important dates for your case, but these dates are not set in stone.
  • You and your spouse can agree to proceed with your case more quickly than the deadlines found in your Case Management Agreement.

What is the Case Management Agreement in a Connecticut Divorce Case?  

The Case Management Agreement is a document that must be filed in every contested Connecticut divorce case.  It is an agreement between the parties and their counsel that sets forth whether the case is a contested custody action, or a case in which parenting issues have been resolved. The Court wants to know at a relatively early point in the case whether there are contested parenting issues that require Court intervention.  If parenting issues are resolved, then the Case Management Agreement will state that only financial issues exist in the case.

The Case Management Agreement also includes dates by which discovery requests will be made, discovery completed, depositions taken, appraisals done, and expert disclosures made. This Agreement sets forth the approximate date that the parties anticipate being ready for a settlement conference. The Case Management Agreement needs to be filed with the Court on or before the Case Management Date, which is approximately 90 days after the divorce case is filed.

Each Case Management Agreement is tailored to the facts of the particular case, taking into account the issues in the case, how complicated the case is, and how quickly the parties want the case to move.  In cases where the parties cannot agree on the dates in their Case Management Agreement, a judge will decide what the dates are.  It is rare for parties not to agree on the dates in their Case Management Agreement, especially when competent Fairfield County divorce attorneys are involved.

Why Aren’t We Abiding by the Dates in my Case Management Agreement?

At Broder & Orland LLC, we take the position that the dates in the Case Management Agreement are deadlines that a Court could impose, even if Courts do not impose them in every instance.  The general purpose of the Case Management Agreement is to put in writing both parties’ expectations for moving through the discovery phase of the divorce case so that meaningful settlement discussions can begin.

Many times, judges in Connecticut do not enforce the exact dates in a Case Management Agreement with respect to deadlines for discovery requests and depositions because there can be particular reasons or developments in a case that warrant some flexibility.  For example, though the Case Management Agreement may say that discovery requests must be made by a certain date, a Court is unlikely to preclude a discovery request after that deadline, particularly where new information has been discovered that leads to additional documents being needed.

One area where the Case Management Agreement does provide an enforceable deadline is with respect to expert disclosures.  If the parties are using, or expect to use, experts, such as business valuation experts, real estate appraisers, or earning capacity experts, the Case Management Agreement will establish the deadline by which those experts must be formally disclosed to the other side.  Unless the parties and their counsel mutually agree to disclose their experts pursuant to a different schedule, the expert disclosure dates in the Case Management Agreement will be strictly enforced by most judges.

Can My Case Move More Quickly Than the Dates Set Forth in My Case Management Agreement?

Westport and Stamford divorce clients will be pleased to know that they can settle their case at any time, including prior to the date that the Case Management Agreement needs to be submitted.  At Broder & Orland LLC, we encourage our clients to provide discovery to the other side promptly, prior to the deadline set forth in the Case Management Agreement, so the case does not get stalled while the other side pursues missing or late discovery.  If both parties are motivated to complete their case earlier than the dates in their Case Management Agreement and cooperate to ensure that they do so, it will typically get done at a faster pace.

Is My Connecticut Divorce Case Public?

This Week’s Blog by Lauren M. Healy

  • Except in very limited circumstances, Connecticut divorce cases are public.
  • The pleadings and documents filed with the Court during your divorce will almost always remain in a file which can be reviewed by the public.
  • Hearings and Trials are open to the public.
  • It is possible to request that certain documents be sealed in your Court file and that the Courtroom be closed during a Hearing, however these requests are not frequently granted by the Court.

Why Are Divorces Public in Connecticut?

In Connecticut, there is an automatic presumption that the public and the press will have access to your divorce documents and Court Hearings. Many litigants are understandably confused by this. Why should a sensitive family matter such as a divorce be subject to public scrutiny? The short answer is, the State of Connecticut has long recognized that there is a public interest in trials and information related to civil and criminal trials. This recognition of public interest relates to the First and Fourteenth Amendment to the United States Constitution. The Connecticut Courts and legislature have recognized that public access to Court matters enhances the quality of the judicial system and safeguards the judicial process. Public participation in such matters generally helps to keep the judicial system in check.

What if I Believe My Case Requires Privacy?

There are exceptions to rule that Court files and trials are public. You might be surprised to find that these same rules and exceptions apply to all litigants in Connecticut—there are no special circumstances for celebrity or wealth. In order to succeed in sealing your Court file or closing the Courtroom, you must have a compelling reason, well beyond just embarrassment or financial disclosure. These types of circumstances usually involve the privacy rights of children and/or issues of abuse.

Connecticut Practice Book § 11-20 permits the filing of a Motion to Close Courtroom in civil cases. In order for the Motion to be granted, the Court must make a finding that closing the Courtroom will protect an interest that overrides the public interest of attending the proceeding. The Court’s order is required to be as narrow as possible. This might mean that only limited portions of the Courtroom proceeding are closed to the public, and the remaining time is open. There is also a very specific time frame and procedure that must be followed when filing a Motion to Close the Courtroom, so there is appropriate notice to the public that there will even be a Hearing on the issue.

Connecticut Practice Book § 11-20A permits the filing of a Motion to Seal a File or Limit Disclosure of Documents in civil cases. Since there is a presumption that all pleadings and documents filed with the Court will be public, for a Motion to Seal or Limit Documents to be granted, there must be a finding by the Court that some private interest overrides public interest. There are also specific time frames and procedure related to this Practice Book Section, which must be carefully adhered to. The Practice Book also addresses how to request to file individual documents under seal (P.B. §§ 7-4B, 7-4B).

Are My Records Still Public if My Spouse and I Settle or Withdraw our Divorce Case?

Once a document or pleading is filed with the Court, it will become a public record unless the Court grants a Motion to Seal. This also applies to written settlements. Even if you and your spouse have an Agreement, it will still be accessible to the public. If you decide to withdraw your divorce action, your case file will remain accessible to the public, although eventually (usually within twelve months of the withdrawal) the case will not be included and searchable through the Connecticut Judicial Branch Website.

At Broder & Orland LLC we have experience with matters requiring sealed records and closed Courtrooms. We are adept at advising our clients on how to conduct his or her divorce as privately as possible under the circumstances of the case.

What is Child Custody in a Connecticut Divorce Case?

This Week’s Blog by Eric J. Broder

  • The term “child custody” can be broken down into two separate definitions, legal custody and physical custody.
  • Legal custody addresses which parent has the right to make major decisions concerning the child(ren). Major decisions include those relating to a child’s education, health/medical, and religion. Based upon my experiences as a Connecticut divorce lawyer I can estimate that over 95% of Connecticut parents have joint legal custody. It is certainly the exception for a party to have sole legal custody.
  • Physical custody addresses the schedule of which parent has time with the child on a given day. In actuality, a parent who is with a child one day a week has physical custody of that child on that day. At times, language is written into a divorce agreement establishing a child’s residence for school purposes.

What happens if the Parties Do Not Agree to Joint Legal Custody?

  • In the event the parties cannot agree on joint legal custody the process is called a contested custody case. This will mean that third parties will become an integral part of the case. For example, the court may appoint a Guardian ad Litem for the minor child to investigate and make a recommendation as to the best interest of the child(ren) or an AMC to represent the child(ren).
  • After hearing all the relevant information in such a case a Judge will decide custody based on the “best interest of the child(ren)”.

What is the Role of the Guardian Ad Litem in a Connecticut Divorce Case?

  • A Guardian ad Litem (“GAL”) is appointed to ensure that the children’s best interests are represented in the event of a custody battle. A GAL may be an attorney or mental health professional. Connecticut has specific certification requirements in order for someone to be appointed as a GAL.
  • The GAL will meet with various individuals involved in the child’s life, including the parents, therapists/counselors, close family friends, teachers, and anyone else who has a strong tie to the family and the child. A GAL will analyze this information and make a recommendation to the court as to what is in the best interests of the child(ren).

What is the Role of the Attorney for the Minor Child in a Connecticut Divorce Case?

  • An Attorney for the Minor Child (“AMC”) is generally appointed to represent the child(ren) in cases involving older children. While there is no specific age at which an attorney will be appointed, I find that children in middle school and high school are more likely to have an attorney appointed to them rather than a GAL. The attorney has the ability to represent the child’s wishes, but also is concerned with the child’s best interest.
  • Unlike a GAL, an AMC will not be permitted to testify during a trial. However, the attorney may and will ask questions of the parents as well as other third parties on the witness stand.

Who Pays the Fees of The Guardian Ad Litem/Attorney For The Minor Child?

  • The parties are responsible for the fees however it is not always an equal split. A court may apportion a different percentage to each party depending on the parties’ financial situation. These fees can and will become costly in the event there is a contested custody trial.

As experienced Fairfield County divorce lawyers, the lawyers at Broder & Orland LLC have represented both mothers and fathers at trial in complex contested custody matters. These cases can and will become expensive, and sadly, have a lasting impact on the children and the parents. We work hard to resolve custody and parenting disputes to ensure that the children’s best interests are always at the forefront.

What Will My Divorce Cost?

This Week’s Blog by Carole T. Orland

  • The complexity of your case is a cost factor but the size of the marital estate may not be a major factor.
  • Cost may depend on opposing counsel.
  • Retainers and hourly rates aren’t always indicators of projected costs.
  • You can minimize the cost of your divorce case by being a cooperative participant.
  • Adopting realistic expectations will reduce costs in the long run.

What will my divorce cost? This is one of the most frequently asked questions of divorce lawyers at an initial consultation. Every client should make sure to have this discussion up front. But don’t be surprised if the answer is: “it depends,” because it does depend on many factors, some of which are outlined below.

The Complexity of Your Case

A common myth is that it is related to the wealth of the parties. This is not necessarily true. Some of our ultra-high income/high net-worth cases in Greenwich and Westport are the simplest ones. Conversely, some of the very moderate financial cases can be trickier, and thus more time consuming. Custody cases are by nature protracted and typically costly. But certain cases that at the outset appear to be custody cases, are really more about parenting time and access, and thus resolvable in a reasonable time frame.

Opposing Counsel

Experience, abilities and approaches vary widely amongst counsel in Fairfield County and beyond. We typically ask, “Who will be representing your spouse?” As experienced lawyers, that gives us great insight into how the case will be handled. Will opposing counsel be inclined to work cooperatively and collaboratively? Or will we experience scorched earth tactics? The answers to questions such as these provide a window for us as to the tenor of the case, and consequently, the cost.

Retainers and Hourly Rates

You will find these will vary from lawyer to lawyer and deciphering the projected cost of your case can sometimes be confusing. Divorce lawyers are free to set retainers as they see fit. But be careful. Don’t project costs on the retainer alone. Some divorce lawyers may quote low retainers but will be entitled to receive refresher retainers if your retainer funds run out. Other lawyers may have higher retainers and then will refund any portion not used. Virtually all divorce lawyers bill for their time as they go along. Hourly rates for divorce lawyers vary widely but again, the hourly rate doesn’t tell the whole story. A very experienced divorce lawyer may charge $750 per hour and a much less experienced may charge $500 per hour. At first blush, you may be inclined to think the lower rate is more cost effective. However, the very experienced lawyer may move through your case a lot quicker, requiring less preparation and research. It may be hard to do the analysis since most divorce litigants are new at this, but you should be able to get a better feel for it once you have your initial meeting with counsel. Also, you can hopefully rely on your referral source for further clarity.

Cooperation with Counsel

Most often there are opportunities to streamline costs by cooperating with your lawyer, especially with regard to discovery. This means taking the initiative on your own to assemble documents which we know you will be required to produce. Responding to your lawyer’s e-mails and calls in a prompt manner also saves time and money. Clearly developing an agenda prior to a call or meeting will result in greater efficiency.

Adopt Realistic Expectations for the Resolution of Your Case

So often, too much time is wasted on staking out unrealistic positions or posturing for a perceived tactical gain. Most divorces involve negotiations, so to some extent there will naturally be some back and forth, but it is critical to be strategic rather than adversarial. An experienced divorce lawyer can provide you with a context for settlement or a likely outcome after trial. You should rely on that advice and be amenable to working through your case in an efficient way to achieve the likely result. It can be a pyrrhic victory to achieve your best case scenario, only to pay more in fees than it cost to achieve that result.

Despite the cost-saving measures discussed above, there are certain aspects of divorce litigation that sometimes cannot be controlled and which will drive up costs. The court system itself is often riddled with delays and unexpected twists and turns, which are not the fault of your lawyer. At Broder & Orland LLC, we have vast experience in litigating and settling divorce cases and always strive to make our cases most cost-effective for our clients.