Month: November 2018

What Do I Need to Know about Connecticut Prenuptial Agreements?

This Week’s Blog by Sarah E. Murray

How Do I know if a Prenuptial Agreement is Right for Me?

In general terms, a Prenuptial Agreement is a contract that two people sign prior to getting married.  Prenuptial Agreements can be appropriate in a variety of situations, including second marriages, marriages in which one or both parties wants to protect his or her premarital assets, marriages in which a party has an interest (or will acquire an interest during the marriage) in a closely held business, including a family business, and marriages in which one or both parties anticipates receiving a substantial inheritance during the marriage.

What Topics Are Addressed in a Connecticut Prenuptial Agreement?

A Prenuptial Agreement can be used to address each party’s rights and obligations with respect to property held by the other, whether acquired before or during the marriage, and each party’s rights to buy, sell, transfer, mortgage, encumber, dispose of, or otherwise control and manage property during the marriage.  Prenuptial Agreements address the disposition of property upon separation, divorce, and/or death and can be used either to establish the terms for or to eliminate spousal support in the event of a divorce.

Are There Other Topics Included in Connecticut Prenuptial Agreements? 

Parties can use a Prenuptial Agreement to provide for the ownership of life insurance policies, how the proceeds from life insurance policies will be disposed of upon a party’s death, and the rights of each party to the other party’s retirement plan.  Prenuptial Agreements will also state what state law will apply in enforcing or interpreting the agreement.

Are There Topics that Cannot be Addressed in a Connecticut Prenuptial Agreement?

Under Connecticut law, the right of a child to support cannot be adversely affected by a Prenuptial Agreement.  Additionally, any custody or visitation arrangements contracted to in a Prenuptial Agreement are subject to review and change by a Court at the time of a divorce.  In other words, while a couple can set forth child support and child custody terms in a Prenuptial Agreement, there is no guarantee that those terms would be upheld by a Court in the event of a divorce.

When is a Connecticut Prenuptial Agreement Enforced?  

In some divorce cases, the parties agree at the time of the divorce to abide by the terms of the Prenuptial Agreement.  In those relatively simple cases, the divorce judgment will incorporate the provisions of the Prenuptial Agreement and the parties can agree upon or have the Court decide any issues not set forth in their Prenuptial Agreement.

If the parties are unable to agree as to whether the Prenuptial Agreement will govern the terms of their divorce, the question of whether a Prenuptial Agreement is enforceable is decided during the divorce case, either as a preliminary matter or at the end of the case.

At Broder & Orland LLC, we frequently consult with clients who have questions about whether a Prenuptial Agreement would be right for them and we have significant experience representing clients who want to best protect themselves in the drafting and negotiation of a Prenuptial Agreement.

Common Questions about Alimony in Connecticut

This Week’s Blog by Eric J. Broder

Is Alimony Mandatory in Connecticut?

There is no requirement that alimony must be awarded in Connecticut divorce cases. In determining whether or not to award alimony, the court will look at a variety of factors, including, but not limited to, the parties’ ages, income, earning capacities, station in life, the length of the marriage, estate, and individual needs. The court does not need to weigh each of these factors equally.

How Long Will a Spouse Have to Pay Alimony?

In Connecticut, there is no “formula” for determining the length of alimony in a divorce case. The court will consider some of the factors enumerated above with, in my opinion, a focus on the length of the marriage, the ages of the parties, and their incomes and/or earning capacities. Generally speaking, the longer the marriage is, the longer the term of alimony will be.

Is Alimony Calculated From Gross Income?

Prior to January 1, 2019, divorce judges considered the parties’ gross incomes to determine the appropriate amount of alimony. Effective January 1, 2019, under the new tax laws, the court will now look at the parties’ net after tax incomes to determine the appropriate amount of alimony.

Is an Alimony Order Modifiable?

After a divorce, alimony in Connecticut is modifiable upon the showing of a substantial change in circumstances. For example, if one party’s income has decreased dramatically, he or she can seek to reduce their alimony obligation. There are a number of other circumstances which may warrant a modification as well.

Does Alimony End on Cohabitation in Connecticut?

Alimony does not automatically terminate when the receiving spouse cohabitates with someone. A number of factors will be considered to determine if the alimony should be terminated or possibly reduced. These factors include, but are not limited to, the type of relationship and the financial assistance the ex-spouse is receiving from the person they are living with.

At Broder & Orland LLC, we concentrate our practice exclusively on family law. In doing so, we understand the financial constraints that a pending divorce can pose on both parties, and the importance of establishing both an equitable amount and duration of alimony. We are adept at advising our clients on the strategies and the multitude of factors considered by a Court in establishing an alimony award.

Children and Custody Disputes: Do My Child’s Wishes Matter?

This Week’s Blog by Andrew M. Eliot

Must a Judge Consider My Child’s Wishes in a Custody Dispute?

No.  It is a common misconception that Judges must consider a child’s preferences in making determinations regarding a child’s custodial arrangement.

In fact, the only factor that a Judge must consider in rendering a custody determination is the “best interests” of a child.

Will a Judge Consider My Child’s Wishes in a Custody Dispute?

The short answer is — it depends.  Under the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c), Judges may — but are not required — to consider the “informed preferences of a child,” in determining what custodial arrangement is in a child’s best interest.  In practice, and through relevant judicial decisions, Courts have interpreted this to mean that a child’s preferences shall only be considered if a child is of sufficient age and is capable of forming an intelligent preference.

How Will a Judge Determine if my Child is of Sufficient Age and Capable of Forming an Intelligent Preference?

There is no precise answer to this question and no fixed age at which a child will be deemed to automatically meet this threshold.  Rather, whether a particular child meets this initial threshold is a determination that falls within the discretion of the Judge.

However, in considering whether a child is of sufficient age and is capable of forming an intelligent preference, such that his or her custodial preferences may be considered by the Court, a Judge is likely to consider not only a child’s chronological age (though this will certainly be a factor), but also the child’s maturity level and intellectual capacity.  A Judge is likely to make such assessments by hearing witness testimony from relevant individuals (such as a child’s parents, a Guardian Ad Litem, and/or any relevant mental health professionals) and potentially considering additional evidence such as documentation relating to a child’s academic performance at school.

If my Child is deemed of Sufficient Age and Capable of Forming an Intelligent Preference, will a Judge Honor His or Her Wishes?

Not necessarily.  Notably, even if a Judge determines that it is appropriate to consider a child’s custodial preferences, he or she still has the discretion to determine that the expressed preferences of the child are not in the child’s best interest, and render orders that are contrary to the child’s wishes.

Parents should also be aware that Judges are often inclined to view the expressed wishes of a child with skepticism or distrust, given that a child who is the subject of a custody dispute may have conflicting feelings about custodial arrangements, may feel pressure from one parent (or both) to express certain preferences, and may have preferences that are subject to change at any moment.

At Broder & Orland LLC, we have extensive experience handling complex and emotionally charged custody disputes throughout Fairfield County and Connecticut and can help clients properly assess whether and to what extent a child’s wishes might be considered by the Court.

What is a Discovery Special Master (DSM)?

This Week’s Blog by Carole T. Orland

  • The Court may appoint a DSM in your divorce case to resolve discovery disputes.
  • Discovery may include production of documents, written responses to questions, and/or Deposition testimony.
  • Utilizing a DSM often saves the parties time and money, as opposed to having the Court decide discovery disputes.
  • Typically the DSM is paid from marital funds during the divorce litigation.
  • The Court retains ultimate authority with regard to discovery disputes.

In certain cases where there are disputes involving discovery, the parties may agree or the Court may appoint a Discovery Special Master. Discovery in divorce cases typically includes the production of certain documents, responses to written questions and/or testimony at a Deposition. Discovery in Connecticut is very liberal. Essentially, if the information sought is “reasonably calculated to lead to the discovery of admissible evidence,” it must be produced unless there is some prevailing privilege, such as that between attorney and client, to the contrary. Connecticut Practice Book Sec. 13-2. However, it is not uncommon in divorce cases to have a disagreement as to what must be produced. If the parties cannot agree they can bring the issue before the Court through Motion practice. The Court has the option of deciding the dispute or referring the matter to a DSM. With their busy dockets and frequent understaffing, Courts generally are not inclined to spend hours sorting out discovery disputes, some of which may be granular in nature. It is, therefore, more practical for the Court to assign the discovery issues to a DSM.

Who Serves as a DSM?

Any lawyer can serve as a DSM. The parties can agree on whom that person should be or in the absence of an agreement, the Court can choose the DSM.

What Protocol Does the DSM Use for Addressing Discovery Disputes?

The Court may establish a general protocol in its Order. Each DSM may handle a case differently, but generally the DSM will ask counsel to provide to him or her the discovery requests in issue along with a memorandum in support or opposition of production, along with certain documentation relevant to discovery. If there is an issue of law, the DSM may ask for legal support in the form of a memorandum or brief. Next, the DSM may either decide the dispute on the papers or confer telephonically or at an in-person conference with counsel and sometimes the parties.

Is the DSM’s Decision Binding?

The Court retains ultimate authority to determine discovery disputes.

Who Pays for the DSM?

The parties are responsible for paying the DSM. Typically, the DSM’s fees are paid out of martial funds during the litigation.

What is the Advantage of Having a DSM?

An experienced DSM can usually give more timely attention and move through the issues quicker than the Court can do, thereby saving the parties attorney’s fees and money in the long run, and preventing delays due to discovery disputes.

What Other Matters Might a DSM Address?

The DSM can address matters of Deposition scheduling for parties, witnesses and experts as well as substantive issues related to these Depositions.

At Broder & Orland LLC, with offices in Greenwich and Westport, we have significant experience working with Discovery Special Masters in our divorce cases throughout Connecticut. We are adept at streamlining the discovery process to the extent possible in order to get the information we need and in producing required information to your spouse, in a timely and cost effective manner.  We recognize that the DSM can be an excellent resource in that regard.

What is Arbitration and is it Right for Me?

This Week’s Blog by Nicole M. DiGiose

What is Arbitration?

Arbitration is an alternative means to resolve disputes out of court.  Unlike mediation, arbitration is binding upon the parties.

How Does a Case Get to Arbitration?

In order to arbitrate, the parties must agree to do so.  Pursuant to Connecticut General Statutes (C.G.S.) Section 52-408, the parties must memorialize their agreement to arbitrate in a written contract.  Once the parties have entered into an arbitration agreement, it must be approved by the Court before the arbitration proceedings commence.

Who will be the Arbitrator?

Usually, the parties will agree to an arbitrator and name him or her in their arbitration agreement.  In the event the parties are unable to agree on an arbitrator, the Court has the power to appoint one, as the case may require, pursuant to C.G.S. Section 52-411.  The arbitrator will typically be an attorney or retired judge.

Are There Any Issues that cannot be heard at Arbitration?

Yes.  Pursuant to C.G.S. Section 52-408, issues related to child support, visitation, and custody cannot be submitted to arbitration.  Therefore, arbitration may only be used for cases in which there are no child-related issues, or cases in which child-related issues have already been resolved.

What is the Difference between Arbitration and Trial?

Trials take place in a courtroom before a judge.  Arbitration, on the other hand, is more informal and takes place before an arbitrator, usually in a conference room.  However, there are some similarities.  For example, there will typically be a court reporter present at an arbitration, and the parties may agree that Connecticut Law and the Connecticut Rules of Evidence shall apply.  Procedurally, the parties may agree for counsel to make opening and closing statements, and examine witnesses, just as they would in a trial.

What Happens to my Court Case When We Submit to Arbitration?

Pursuant to C.G.S. Section 52-409, actions in Court may be stayed, meaning that they are essentially paused, until the arbitration has occurred.  In order to have the Court proceedings stayed, a party must make a request in the form of a motion.  Then, the Court must be satisfied that the issues to be referred to arbitration are permitted under law, and that the party making the request for the stay is ready and willing to proceed with the arbitration.

What if my Spouse Refuses to Participate in Arbitration After We Have Signed an Agreement?

Pursuant to C.G.S. Section 52-410, if one party neglects or refuses to participate in arbitration after submitting to a written arbitration agreement, the other party may make an application to the Court for an order directing the parties to proceed with arbitration in compliance with their agreement.

What Happens After Arbitration Has Concluded?

Usually, an arbitration agreement will state the deadline on which the arbitrator must render his or her decision.  If the agreement is silent as to a deadline, pursuant to C.G.S. Section 42-416, a decision must be rendered within thirty days from the date the arbitration is completed.  The decision must be in writing and signed by the arbitrator and notice is given to both parties.  Thereafter, pursuant to C.G.S. Section 52-417, within one year from the date of the decision, either party may make an application to the Court to confirm the award.  The award will be confirmed unless the award is vacated, modified, or corrected by the Court.

Can I Challenge an Arbitration Ruling?

Yes.  Under certain limited circumstances, such as corruption, fraud, misconduct, or if the arbitrator has exceed his or her powers, an arbitration award may be vacated pursuant to C.G.S. Section 52-418.  Arbitration awards may also be modified or corrected pursuant to C.G.S. Section 52-419 if there has been an evident miscalculation of figures, an evident material mistake, if the arbitrator decided issues not submitted to him or her, or if the award is imperfect in matter of form not affecting the merits of the controversy.  Motions to vacate, modify, or correct an arbitration award must be brought within thirty days of the date of notice of the decision pursuant to C.G.S. Section 52-420.

At Broder & Orland LLC, we have extensive experience in all aspects of divorce-related arbitrations.  Our experienced attorneys will counsel you to ensure that arbitration is right for you and your case.