Month: December 2018

Can I Get Exclusive Use of the Marital Residence During My Connecticut Divorce?

This Week’s Blog by Jaime S. Dursht

Yes.  Connecticut courts have the authority to award exclusive use and occupancy of the home  to either spouse while a divorce is pending, which means that one spouse can be ordered to vacate the home until further court order.  Connecticut General Statutes 46b-83(a) provides, “At any time after the return day of a complaint … [t]he court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendent lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.”

What is the Procedure in Connecticut?

A motion is filed with the court which will be scheduled for hearing before a judge within a few weeks of filing. “Each motion for exclusive possession shall state the nature of the property, whether it is rental property or owned by the parties or one of them, the length of tenancy or ownership of each party, the current family members residing therein and the grounds upon which the moving party seeks exclusive possession.”  Connecticut  Practice Book § 25-25.

Does it Matter Which Party Has Title to the House?

No.  A court may award exclusive occupancy regardless of whose name the home is titled in.  In fact, ownership of a home is not necessary, and a court may order exclusive use of rental properties as well.

Are Specific Grounds Required?

There are no specific statutory grounds, however, the Practice Book requires the motion to state “the grounds upon which the moving party seeks exclusive possession.”  While a court will consider factors such as the nature of the relationship between the parties, the grounds must be more compelling than that of spouses not getting along.  The existence of physical and/or substance abuse for example, will be considered significant, especially if these conditions are taking place in the presence of minor children.

Does It Affect Who Has to Pay the Expenses While the Divorce is Pending?

Courts are reluctant to order the parties to pay for two residences if it is evident they cannot afford it, however, if the circumstances justify it, a court will grant the motion regardless of the financial situation.  While a Connecticut divorce is pending, there are Automatic Orders in effect which are intended to preserve the status quo as to the payment of household expenses, and courts may order the payment of ordinary household expenses from assets if necessary.

What Happens if There are Minor Children Involved?

A court may base its orders on what is in the best interests of the minor children, which often means that the children will stay in the marital home with the primary caregiver.  Depending on the circumstances, the court will also require the parties to work out a temporary schedule of appropriate parenting access.  Sometimes that may involve a schedule of “bird nesting” to keep the children in the marital home while the parents rotate occupancy of the home or part of the home.

The attorneys at Broder & Orland LLC, with offices in Westport and Greenwich, are very experienced with the issue of exclusive use and occupancy of the marital residence during a Connecticut divorce and with assisting clients in developing an appropriate plan to meet individual and family needs.

Depositions in a Connecticut Divorce Case

This Week’s Blog by Christopher J. DeMattie

What is a Deposition? 

A Deposition is when you, your spouse, or a third party is placed under oath and asked various questions by an attorney related to your divorce action.  The questions and answers are recorded word for word by a stenographer. A transcript of the proceedings is later created.  On occasion, a Deposition may also be video recorded if advance notice is provided.  Typically, Depositions do not occur at the courthouse, rather they take place at an attorney’s office.  All parties and their attorneys are permitted to attend the Deposition, unless there is an order of protection in place.  

What is the Purpose of a Deposition? 

There are three main reasons to take a Deposition in a divorce case.

First, is to determine facts and to limit surprises at trial.  An attorney may have questions about facts in dispute, want to learn the nuances of your spouse’s compensation, or find out if your spouse was having an affair.  The last thing you want to happen at trial is to find out a brand new material fact.

Second, is to have a record created under oath that can be used at trial.  During a trial, one of the most important issues is a witness’ credibility.  By having sworn prior testimony given under oath, an attorney is able to use a Deposition transcript to attack the credibility of a witness by citing to lies, omissions, or material changes in testimony.

Third, is to preserve the testimony of a witness if he or she is unavailable at the time of trial.  For example, a witness may live out of state and not be subjected to a trial subpoena, so you have to take the witness’ Deposition out of state in order to use the testimony at trial.

Is a Deposition Required for Divorce?

A Deposition is not a requirement for a divorce in Connecticut.  In fact, many cases are resolved without a Deposition being taken.  Depositions usually occur if a case is going to trial, however, and might be strategically taken in the beginning of a case to narrow down the issues to help facilitate a settlement.

What Happens During a Deposition?

The first thing that generally happens at a Deposition is everyone is told where to sit.  The stenographer will sit at the head of the table and the opposing attorney will sit on one side, the witness will sit directly across from the opposing attorney, and your attorney will be sit next to you on the opposite side of the stenographer.  The witness is then given an oath by the stenographer to tell the truth.  Once the witness is “sworn in” the opposing attorney will usually go through the ground rules of a Deposition, often in question and answer form to familiarize the witness with the process.  The opposing attorney will then question the witness about documents and issues related to the case.  A Deposition could take a few minutes or could proceed over the course of multiple days depending on the issues.  Once the opposing attorney finishes his or her questions, your attorney will have the opportunity to ask follow up questions, but it is rare to do so because your attorney’s questions may only serve to educate the opposing side about your testimony and extend the Deposition by giving opposing counsel an opportunity for additional follow-up questions.  A witness is entitled to take breaks during a Deposition and consult with his or her attorney as long as a question is not pending.  In other words, a witness cannot consult with his or her attorney in the middle of a question.

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, as well as preparing our clients in advance of his or her deposition.

What is Legal Separation in Connecticut?

This Week’s blog by Lauren M. Healy

What is Legal Separation? 

Legal Separation is a lawsuit that is commenced by one spouse against the other, resulting in an enforceable court order that resolves issues such as custody, division of assets and liabilities and the payment of alimony and/or child support. Married couples who are separating and want to have a formal agreement on important issues have the option of filing for either Divorce or Legal Separation.

Is Legal Separation the same thing as Divorce?

No. Although Legal Separation and Divorce have many similarities, they are two different legal actions. The major difference between Divorce and Legal Separation is that when a Divorce is completed, the parties are free to remarry. When parties are legally separated, they are still legally married and unable to remarry.

Can you turn a Legal Separation into a Divorce? 

Yes. There are two ways to turn a Legal Separation into a Divorce. One option is to convert the action (from Legal Separation to Divorce) while the lawsuit is still pending. This requires filing a simple Motion with the Court, requesting that the action be converted before any orders are final.

It is also possible to wait until after the Legal Separation is finalized to convert the Legal Separation into a Divorce judgment. There is no time limit on requesting a divorce after Legal Separation. Sometimes parties live legally separated for years before getting divorced.

Why file for Legal Separation instead of Divorce?

The decision of whether to file for Legal Separation or Divorce is very personal. In some cases, for religious or other reasons, Divorce is not a suitable option. If a couple wants to live separate and apart physically or financially, without the finality of a Divorce, Legal Separation could be a better choice. Legal Separation can also be used as a stepping stone to Divorce. Since it is so easy to convert to a Divorce, sometimes the party commencing the action chooses to start with the softer concept of Legal Separation.

Also, a couple may choose to pursue Legal Separation if they prefer to be separated but can maintain or acquire benefits by remaining legally married, such as health insurance or social security benefits.

What are the Grounds for Legal Separation in Connecticut? 

In Connecticut, you need a reason, or grounds, to be legally separated. The grounds for Legal Separation are the same as for Divorce. Since Connecticut is a “no fault” state, it is not necessary for either party has to prove that the other caused the marriage to end. Instead, the parties can simply represent that the marriage has broken down irretrievably, with no hope of reconciliation.

Do I need a Lawyer for a Legal Separation?

Just as in a Divorce, parties are not required to have legal representation to obtain a Legal Separation. However, since major parenting and financial issues are negotiated and decided, including custody, assets, liabilities and support, it is advisable to obtain legal counsel in order to fully understand your rights and obligations pursuant to Connecticut law.

At Broder & Orland LLC we apply our experience and knowledge of the law to the specific circumstances of each case, in order to help our clients decide the best course of action when considering a Divorce or Legal Separation.