Month: April 2019

Mediation in Divorce Cases

This Week’s Blog by Carole T. Orland

What is Mediation in the Context of Divorce?

Mediation can be a helpful approach in certain divorce cases. Typically the mediator is a lawyer who objectively tries to help resolve your case or specific issues within the case.

Are There Different Kinds of Divorce Mediations?

Yes.  Sometimes the parties hire a divorce mediator before either one has filed for divorce or shortly thereafter. Often the reason is that they are desirous of an amicable process and resolution at a moderate cost.

In other instances, the parties litigate the divorce with counsel and at some point decide they want assistance in settling the case, typically before trial. In this model, they usually hire a retired judge or elder statesman of the bar to conduct a session with the parties and counsel. This process can last anywhere from several hours to a full day.

On occasion, parties who are represented by counsel may hire a mediator near the beginning of the case to help resolve disputes as the case is litigated.

Is Mediation the Opposite of Litigation?

Not necessarily. As described above, mediation is often done in the context of litigation. Litigation is not necessarily a scary term and does not have to be contentious or nasty. It is often a conventional way of moving the divorce process along. In some instances it can be easier, quicker, and less expensive than mediation.

When Does Mediation Without Counsel Work Best?

If the parties have trust in each other and share the same objective and timetable for resolving their divorce, mediation can be a good approach. Of course, it is key to hire a reputable, experienced mediator. 

When Does Mediation Not Work Best?

Often, trust has eroded leading up to divorce. Also, sometimes the parties are on such unequal footing with regard to an understanding of financial issues, that the well informed party has an inherent advantage to the detriment of the other party. A common refrain is: “Let’s go to mediation. We will avoid lawyers and save money. We can work this out!” Sometimes, that obfuscates the underlying motive of trying to “put one over” on the other party. A failed mediation can be a real detriment to ultimately resolving the divorce as it can be a waste of time and money, as well as a disappointment when it is perceived that a spouse has not acted in good faith.

Is Mediation a Good Approach to Resolving the Part of the Case Relating to Child Custody and Parenting Time?

It can be. Good divorce lawyers make it their business to resolve custody and parenting issues at the beginning of the case. But an alternative might be that the parties resolve these issues on their own with a mediator. In that case, the mediator may be a mental health professional, such as a family therapist.

What Does it Mean to Have a Mediation Coach or Review Counsel?

Most of the time, parties who hire a mediator on their own will also separately hire lawyers to coach them as to divorce laws, strategy, and outcomes. They also may hire review counsel to review the Separation Agreement drafted by the mediator. The coach and review counsel are often the same person. This adds another layer to the process and additional cost. There is also the potential that review counsel’s opinions may de-rail the process at the end of mediation. It is important for parties to stress to their review counsel that they are not looking to re-write the proposed Separation Agreement, but rather looking for any potential minefields.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we are experienced in all forms of divorce mediation. We act as mediators for parties who have or do not have counsel, and attend mediation with our clients in many of the cases we litigate.

Broder & Orland LLC Assists its Divorce Clients in Navigating New Alimony Rules

The New York Times recently published an article on the new tax laws affecting those contemplating divorce:

Strip out the acrimony and emotion, and divorce can be boiled down to a business negotiation. Harsh as that may sound — there are often children stuck in the middle — when a couple gets down to completing their split, the numbers matter: assets, support, time allotted with children.

Divorce negotiations are never easy, and they became more complicated this year…

The attorneys at Broder & Orland LLC have years of experience in crafting separation agreements that take into account the tax advantages of alimony and unallocated support payments.

Read the full article here.

 

Issues Related to the Marital Residence During a Divorce

This Week’s Blog by Nicole M. DiGiose

Can I Change the Locks of the Marital Residence When I Start a Divorce?

Generally, no.  Once a dissolution of marriage action is commenced, the Automatic Orders go into effect. Paragraph B(8) of the Automatic Orders prohibits either party from denying the other party use of the parties’ current primary residence without an order of the Court, so long as the parties are living together on the date of service of the Automatic Orders.  However, parties are free to agree, or the Court may order that one party have exclusive possession of the marital residence during the pendency of the action.  In those situations, the locks may be changed.

Can the Marital Residence be Sold During a Divorce?

Yes, but only by agreement of the parties or an order of the Court.  Paragraph B(1) of the Automatic Orders prohibits either party from selling, transferring, exchanging, assigning, removing, or in any way disposing of any property during a dissolution of marriage action, except in the usual course of business, for usual and customary household expenses, or for reasonable attorney’s fees in connection with the dissolution of marriage action, absent a written agreement of the parties, or an order of the Court.

What if my Spouse doesn’t Agree to Selling the Marital Residence During a Divorce? 

Absent a written agreement of the parties, either party may petition the Court for relief from the Automatic Orders.  It is unusual, however, for the Court to order the house to be sold while the divorce is pending.  If the Court made such an order, it would likely order that the net proceeds of sale be held in escrow until the divorce is final, as the Court cannot assign assets until that time.

Does Voluntarily Vacating the Marital Residence Hurt my Chances of Retaining it in the Division of Property? 

No.  There is a difference between occupancy and ownership.  While one party may occupy the marital residence during the pendency of the divorce, it doesn’t necessarily mean that that party will be awarded it in the overall division of property.  At the time of entering a decree dissolving the parties’ marriage, the Court may assign to either party all or any part of the parties’ estate.  The Court may pass title to real property to either party or a third party, or may order the sale of such real property.  Pursuant to General Statutes Section 46b-81, the Court shall consider various factors in fixing the nature and value of the property, if any are to be assigned.  Such factors include, but are not limited to, the length of the marriage, the causes for the breakdown of the marriage, and the age, health, station, and occupation of the parties.  The Court shall also consider the estate, liabilities and needs of the parties and the opportunity for each party for future acquisition of capital assets and income.  Finally, the Court shall consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates.

Does Voluntarily Vacating the Marital Residence Impact the Care and Custody of Our Children?

No.  In fact, pursuant to Connecticut General Statutes Section 46b-56(c), in making and modifying orders related to the custody or care of minor children the Court shall consider various factors, one of which is the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provider the Court may consider favorably a parent who voluntarily leaves the child’s family home during the pendency of a divorce action in order to alleviate stress in the household.

At Broder & Orland LLC we have extensive experience addressing all issues that may arise with regard to the sale of the marital residences in the context of divorce in Fairfield County and Connecticut.  Our knowledgeable attorneys will counsel you to ensure that you are fully informed of your rights as they relate to your marital residence.

How are Social Security Benefits Treated in a Connecticut Divorce Case?

This Week’s Blog by Jaime S. Dursht

Social Security benefits are not considered a marital asset and are therefore not subject to division in a Connecticut marital dissolution action.

Are Social Security Benefits an Asset of the Marriage Subject to Division?

Future Social Security benefits are governed by federal law which specifically prohibits the transfer and/or assignability of the benefit. (Social Security Act, 42 U.S. Code § 407)  The United States Supreme Court has held that the right to receive Social Security benefits does not constitute property.  State courts hold that federal law preempts state property laws that would otherwise subject Social Security benefits to classification as marital property for division.  

Are Social Security Benefits Considered in Computing Alimony?

If Social Security benefits are in pay status and being received, then it is considered a current source of income and included in the determination of support payable under the alimony statute.

Can Social Security be Garnished to Pay Alimony and/or Child Support?

Yes.  In 1975, Congress carved out an exception for alimony and child support from the prohibition of subjecting Social Security benefit funds to execution, levy, attachment, garnishment, or other legal process.  In cases involving a judgment for unpaid alimony, the Social Security Act permits garnishment of benefits for the judgment as well as court costs and penalties. 

Does an Ex-Spouse Have a Right to Claim the Former Spouse’s Social Security Benefit?

Yes, if you meet the following criteria:

  • Age 62
  • Unmarried
  • Divorced from someone entitled to receive Social Security benefits
  • The marriage had been for at least 10 years

You are eligible to apply for benefits on your former spouse’s benefit even if he or she has not retired, and as long as you divorced at least two years before applying.  If you are entitled to your own Social Security benefits, your benefit amount must be less than you would receive based on your ex-spouse’s record, and you will be paid the higher of the two benefits, but not both.  Also, this would have no effect on the benefits your ex-spouse is eligible to receive.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce.  Our attorneys are very experienced with the financial issues faced by individuals in a divorce, and understand the importance of accurately identifying assets and available sources of income in advising our clients about establishing a financial plan.

Imputing Income for Child Support Purposes

This Week’s Blog by Andy M. Eliot

How is Child Support Generally Determined in Connecticut?

In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula which yields a presumptively correct weekly child support obligation that one parent must pay to the other.

What Does Voluntary “Underemployment” Mean?

Voluntary underemployment occurs when a parent (whether it be the child support obligor or the parent receiving child support) voluntarily earns less income then he or she is capable of earning based upon his or her education, training and past earnings.  Consider, for example, a scenario in which a child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue to pursue a far less lucrative career as a musician; this would be an example of “voluntary underemployment.”

Do Courts Have Any Means to Redress Voluntary Underemployment in Issuing Child Support Awards?

Yes.  In such circumstances, courts have the discretion to attribute or “impute” income to a parent (whether it be the parent paying child support, the parent receiving child support, or both) for purposes of determining child support obligations.  In other words, when plugging a parent’s income into the mathematical child support formula set forth in the Connecticut Child Support Guidelines, courts may utilize an income figure that reflects the amount of income that a parent could potentially be earning (commonly referred to as “earning capacity”), rather than the amount the parent is actually earning at the time.

How do Courts Determine what Amount of Income to Impute to a Party?

In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ.  Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination.  However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health.

Are Experts Ever Used to Determine Earning Capacity?

Yes.  In cases where earning capacity is an issue, it is common for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.

Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise.  At Broder & Orland LLC, we have extensive experience handling matters where earning capacity is at issue and have a well-established track record of achieving favorable results for our clients in such matters.