Month: October 2018

The Best Way to Prepare for Divorce? Get Organized!

This Week’s Blog by Jaime S. Dursht

Ask any top divorce attorney in Greenwich, New Canaan, Darien, Westport and beyond, what practical steps should be taken to prepare for the divorce process, and the answer will be to locate and organize your financial records.

Which Financial Records are the Most Important?

At a minimum your past 3 years of individual tax returns; past 2 years of bank statements, credit card statements and retirement accounts; the last year of pay stubs; and any life insurance and medical insurance policies.  In every marital dissolution action, this is mandatory disclosure so it helps to have it organized ahead of time.

What if I Do Not Have Access to Accounts?

Most accounts can be readily accessed online if the account is in your name or jointly with your spouse.  If you are unsure, call the financial institutions and find out how to establish online access or how best to obtain statements.  Many are surprised to learn that lack of accessibility is simply a lack of familiarity that is easily overcome.   If the account is in your spouse’s sole name, then it is his/her obligation to provide it.

Is There a Time Frame or a Due Date?

The time frame is generally within the first 30 days from when the action filed, when many attorneys formally request production.  Officially, the due date is 60 calendar days from the date of the written request.

Do I Need to Print Paper Copies?

No.  Electronic copies are preferred, but if you do have paper copies, consider scanning them to avoid the possibility of incurring a fee for law firm staff to do it.

Are There Additional Documents that will be Required?

Yes.  It is common practice for attorneys to request an exhaustive list of any kind of document relating to an interest held in any type of asset or source of income.  For example, appraisals, trusts, deferred compensation, business interests, inheritances, educational savings, safe deposit box contents, and employment contracts.

What Happens if a Party Does Not Comply?

Unfortunately, it is not uncommon for a party to object to discovery requests, for example, on the grounds that the particular request is “overbroad, unduly burdensome, and not reasonably calculated to the discovery of admissible evidence.”  When there is disagreement over discovery, there is the possibility that court involvement will be necessary to resolve the issue.

When it comes to the discovery process, we encourage our clients to maintain an open and cooperative approach to avoid disagreements that often cause delays and end up being costly for both sides.  So if there is anything practical you can do to prepare yourself, it is to organize your files, and familiarize yourself as best you can with your financial records.

With offices in Westport and Greenwich, the attorneys at Broder & Orland LLC are extremely knowledgeable and experienced with the process of discovery and how to resolve the various issues that arise throughout each case.

Rebuttal Experts in a Connecticut Divorce

This Week’s Blog by Christopher J. DeMattie

What Is A Rebuttal Expert?

Generally, in a Connecticut divorce matter, a rebuttal expert is an individual whom you hire to challenge the opinions of your spouse’s expert.  For example, the individual’s field of expertise could be in the following areas: (a) real estate valuation, (b) business valuation, (c) tax, (d) earning capacity, (e) alcoholism, (f) coercive control, (g) child development, or (h) mental health.

What Are The Duties Of A Rebuttal Expert?

A rebuttal expert could be hired to assist in a number of roles.  The engagement could also evolve as your matter progresses.  The two major roles are: (a) consulting and (b) challenging the opinion of a competing expert.

In the consulting role, the rebuttal expert could assist you with your case in a number of ways.  First, the expert could assist you and your attorneys with developing a strategy.  For example, you could hire a tax lawyer or accountant to help analyze the tax impact of certain assets you could receive as part of the division or property, or you could hire a real estate appraiser to determine if your spouse’s stated value of the marital residence conforms to the actual fair market value of the property. Second, the rebuttal expert could assist with critiquing the report and analysis of your spouse’s expert.  For example, if your spouse disclosed an expert who issued a report concluding he or she was subjected to coercive control, your rebuttal expert would assist in analyzing the report to determine if the proper forensic steps were taken to support the conclusion.  Further, a rebuttal expert could help you and your attorneys develop questions for the deposition or cross-examination of your spouse’s expert to highlight the weaknesses in that expert’s opinion.

In the challenging role, your rebuttal expert follows the proper protocols in his or her field and provides a formal opinion on the same subject matter as your spouse’s expert.  As stated above, the opinion could be: (a) the fair market value of the marital residence in Greenwich is $4,000,000, (b) your spouse has an earning capacity of $250,000, or (c) is it in your children’s best interest to relocate out of the state of Connecticut. After your expert reaches an opinion, you must formally disclose that person in advance of trial in accordance with the rules of practice or Court Orders.

Sometimes, your rebuttal expert could begin as a consultant, but as your case progresses you formally disclose your rebuttal expert and have this person issue a formal report and potentially testify at trial.  It then becomes “a battle of the experts.”

When Would I Need A Rebuttal Expert?

In some matters at Broder & Orland LLC we hire a rebuttal expert as soon as a divorce is filed. It may be necessary to help tailor a specific strategy for your case, especially if a unique issue is identified early on. In other matters, we do not hire a rebuttal expert until after your spouse formally discloses his or her expert.  Even then, the engagement of your rebuttal expert could be short if your expert agrees with the opinion of your spouse’s expert.  Further, sometimes your spouse’s expert and your rebuttal expert could communicate (only with you and your spouse’s consent), and they could agree on an opinion for settlement purposes.  In some matters, experts play a pivotal role in settlement.

At Broder & Orland LLC our team approach extends to the experts we assemble on a case-by-case basis. In cases involving high net worth individuals, we routinely work with business valuation experts, financial experts and forensic accountants. In cases involving custody, visitation and parenting plans, we often work with private investigators, parenting coordinators, psychiatrists, therapists and social workers.  By partnering with these professionals, we are sure to obtain a clear understanding of the specific issues of each case. This is true, for example, in a divorce involving a complex business valuation, drug and alcohol abuse by a parent, or custody considerations for a special needs child.

Divorce Litigation from Start to Finish: Christopher J. DeMattie to Present at Upcoming NBI Seminar

Much has been said about the issues discussed in divorce. But what about the procedures? Are you intimately familiar with all the dos and don’ts of family court? Let our seasoned attorney faculty walk you through a detailed step-by-step instruction on the mechanics of a divorce case.

Associate attorney Chris DeMattie will present at the National Business Institute’s seminar entitled “Divorce Litigation from Start to Finish” along with a panel of several other distinguished attorneys. The full-day seminar is scheduled for Thursday, December 6th in North Haven, Connecticut. Legal professionals interested in attending can register online via the NBI website.

How Do I Take a Deposition of an Out-of-State Witness in my Connecticut Divorce Case?

This Week’s Blog by Sarah E. Murray

  • A deposition of an out-of-state witness usually requires an Order from the Court
  • Once ordered in Connecticut, further litigation regarding the deposition can occur in the state where the witness lives
  • The deposition of the out-of-state witness will take place in the state where the witness resides, unless otherwise agreed

Can I Take the Deposition of an Out-of-State Witness for Use in My Connecticut Divorce Case?

Clients in Greenwich, Darien, and New Canaan sometimes have reason to want the sworn testimony of a witness who does not live in Connecticut. It is common for Fairfield County divorce clients to have contacts out-of-state, particularly in New York, who may be able to provide sworn testimony related to the divorce case. The reasons for needing the deposition testimony of out-of-state witnesses vary, and can include needing the testimony of an opposing party’s out-of-state employer, or a paramour, in order to obtain relevant information or to bolster one’s case.

If a divorce client and his or her attorney decide that the deposition of an out-of-state witness is needed, the next step is to determine the method by which that witness can be compelled to appear for a deposition in the case. Pursuant to the Connecticut rules, unless a witness agrees to appear at a deposition, that person can only be compelled to sit for a deposition if he or she is served with a valid subpoena.  If the client knows that the out-of-state witness is going to be in Connecticut on a particular day, it may be possible to arrange to have that person served in Connecticut with a subpoena for a deposition. If the witness is served with a subpoena while in Connecticut, then he or she is compelled to appear for a deposition within the county in Connecticut in which he or she is served.

If the witness is not able to be served with a subpoena in Connecticut, then the appropriate procedure is for an Application for Commission to take the deposition of an out-of-state resident to be filed in the Connecticut Court. The Application for Commission is a motion requesting an Order from the Connecticut Court that gives the party permission to depose the out-of-state witness in the state where that witness resides. Top Fairfield County attorneys will consult with an attorney in the state in which the witness resides prior to filing the Application for Commission in order to ensure that the Connecticut Order authorizing the deposition complies with the laws and procedures of the state in which the deposition is to take place.

Once filed, if the opposing party does not agree that the Application for Commission be granted as a matter of course, a judge in Connecticut will decide whether or not to grant it in accordance with Connecticut’s discovery rules. Assuming that it does get granted in Connecticut, the process does not end there. The witness must then be served with a subpoena in accordance with the laws and procedures of the state in which he or she is to be served, i.e., his or her state of residence. Some states allow a subpoena to be served on the witness, while others require that the subpoena (and sometimes an accompanying motion) be filed in that state’s court prior to being served. It is critical to follow the law of the state in which the witness is to be served so that the witness cannot claim he or she was served improperly.

What Happens Once the Witness is Served?

Once the witness is properly served, that witness can challenge the subpoena in the courts of the state in which he or she is served. At Broder & Orland LLC, we find it important to have local counsel involved when serving an out-of-state witness in order to assist with any litigation that may occur in that state. Local counsel can also assist in the event that the witness fails to appear for the deposition and a motion to compel his or her attendance is needed.

After the subpoena is issued and any litigation initiated by the third party witness is complete, the deposition can occur. In some circumstances, counsel may agree to have the deposition take place in Connecticut to save the time and expense of the parties and counsel traveling to the other state for the deposition. If there is no agreement for that to occur, then the deposition must take place out-of-state. That deposition testimony can then be used as part of the Connecticut divorce proceedings. Under Connecticut Practice Book rules, the deposition testimony can also be used in some circumstances in lieu of that witness’ testimony at trial.

At Broder & Orland LLC, we have experience in arguing for (and sometimes against) Applications for Commission to take the depositions of out-of-state witnesses, and we understand the strategic considerations that clients should take into account in deciding when and how to pursue the deposition of an out-of-state witness.