Month: July 2019

Testifying in a Connecticut Divorce

This Week’s Blog by Christopher J. DeMattie.

Do I have to testify during my Connecticut Divorce?

A divorce action is a civil lawsuit, so any time evidence is required to resolve a disputed issued testimony of witness is likely required.  Typically, the witnesses in a divorce action are you and your spouse, however, it is common for other fact or expert witnesses to also testify.  An example of a disputed issue which could require your testimony is what school your child should attend.  You and your spouse will likely be required to provide testimony as to why you believe a certain school is a better fit for your child and why it is in your child’s best interest to attend that school.

What is the format of testifying during my Connecticut divorce?

The two main categories of testimony are direct examination and cross examination.

Direct examination is the questioning of a witness by the party that called the witness to testify.  An example of direct examination is when your attorney calls you as a witness to testify.  Proper direct examination questions are posed in an open-ended manner.  Typically, direct examination questions begin with: who, what, when, where, why, and how.

Once your attorney concludes your direct examination, your spouse’s attorney has the option to cross-exam you.  Unlike direct examination, where the questions are open-ended, proper cross examination questions are leading.  A question is considered leading if the answer is suggested in the question.  If done properly, during cross examination the attorney is essentially testifying, and the witnesses is merely confirming or denying the question posed by the attorney.

An example of a direct examination question versus a cross examination questions is as follows:

Direct – Where did you and your spouse marry?

Cross – Isn’t it true that you and your spouse were married in Greenwich, Connecticut?

Once your spouse’s attorney concludes his or her cross examination of you, your attorney will have the option to redirect you.  Redirect is the opportunity to correct or expand on the topics covered during cross examination.  Since proper cross examination often requires are simple yes or no answer, you may want the opportunity to offer more expansive testimony on the topic.  For example, on cross examination you may be asked: Isn’t it true that you were late in paying alimony, yes or no?  If the answer is “Yes”, on redirect examination your attorney may ask you: Why were you late paying alimony? You will then explain the reason why you were late paying alimony.

Thereafter, the opposing attorney will have the option to recross examine you, but he or she can only ask questions within the scope of the redirect examination.  For example, if the redirect examination is limited to questions pertaining to alimony, you typically cannot be asked questions about custody on redirect examination.  This format of redirect and recross examination will continue back and forth until there are no further questions.

What are my basic responsibilities while testifying?

Your first and most important responsibility is to tell the truth.  You will be given an oath by the Clerk to tell the truth, and failure to tell the truth could result in perjury charges or the Judge not finding you to be credible.  In a divorce case, credibility is one of the most important aspects since often a dispute comes down to a “he said, she said” situation.

Second, you need to only answer the question that is asked.  Otherwise, you answer could be stricken as non-responsive, which will only prolong the process.  You may find yourself not wanting to answer the question posed to you by opposing counsel, but you have an obligation to answer the question, unless an objection to the question is sustained.  You also need to remember that your attorney will be able to ask you follow up questions on redirect examination to correct or expand on the question.

Third, if an objection is raised, do not answer the question until you receive instructions from the Judge.  If the Judge sustains the objection you do not have to answer the question.  If the Judge overrules the objection you must answer the question.

Finally, you do not want to fight with opposing counsel.  Opposing counsel may purposefully ask incendiary questions to get you to lose your composure in front of the Judge.  You must do you best to try and stay in control and have faith in your attorney to “fix” any issues on redirect examination.

Broder & Orland LLC with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce. In addition to being highly experienced lawyers with proven results, our hallmark is the attention we give to each of our clients. Additionally, whether a case requires aggressive litigation or a mediated solution, we always exhibit an abiding compassion for the people we represent and their families, recognizing that our mission is to assist them through a very difficult, life changing event.

What Orders Are in Effect While a Connecticut Divorce Case is on Appeal?

This Week’s Blog by Sarah E. Murray.

Do the Trial Court’s Orders Take Effect Immediately Following a Divorce Trial?

Once an appeal is filed, the order(s) associated with the final judgment may be automatically stayed.  This means that until the appeal is finally concluded, the trial court cannot enforce the order(s) that are the subject of the appeal.  Generally speaking, orders regarding the division of assets and liabilities are stayed while a family law appeal is pending.  A common example of the automatic stay in practice in family cases occurs where the trial court orders that the marital home be sold.  Pursuant to the automatic stay rule, that order would not be enforced during the pendency of the appeal without the trial court terminating the stay of execution of that order, as discussed herein.

There are certain exceptions to the automatic stay rule that are permitted by the Practice Book in family cases.  For example, final orders concerning periodic alimony, child support, custody, and visitation are not automatically stayed pending an appeal.  If you are unhappy with the trial court’s alimony orders, those orders will go into effect during the pendency of your appeal unless you ask the court to impose a stay where there is not one automatically imposed by the court rules.

Is There Anything I Can Do to Have Divorce Orders that are Stayed Pending Appeal Take Immediate Effect?

Under Connecticut rules, the trial court can terminate the automatic stay of its orders on its own volition or after a motion is filed by either party.  A Motion to Terminate Stay is filed in the Appellate Court, but is decided by the trial court judge who decided the divorce case following a hearing.  In deciding a Motion to Terminate Stay, a trial court must consider the following factors: 1) the needs and interests of the parties and their children (and any other third parties affected by the orders); 2) the potential prejudice to either party, the children, or a third party affected by the orders if a stay is or is not imposed or if a stay is terminated; 3) the need to preserve the mosaic of the trial court’s orders; 4) the rights of the party taking the appeal to obtain effective relief in the event that his or her appeal is successful; 5) the effect of the Automatic Orders on any of the other factors; and 6) any other factors affecting the equities of the parties.  At the hearing on a Motion to Terminate Stay, both parties can present legal argument, and sometimes testimony, regarding whether the automatic stay should be terminated.

Can I Request that Orders that Go into Immediate Effect be Stayed While the Appeal is Pending?

It is also possible to file a Motion to impose a discretionary stay on any orders that go into immediate effect while an appeal is pending.  Such a Motion is filed in the trial court, unlike a Motion to Terminate Stay.  The trial court judge must consider the same factors recited above in deciding whether to impose a stay of the court’s orders or not.

What is My Remedy if I Do Not Agree with the Trial Court’s Decision Regarding a Request for Stay or to Terminate Stay?

The trial court is not necessarily the final arbiter of determining whether there should or should not be a stay of execution of its order.  A party aggrieved by orders regarding the termination of a stay can seek review of those orders by filing a Motion for Review with the Appellate Court.  The Appellate Court has the same power to review the issuance of a stay as it does the termination of one.

Broder and Orland LLC provides appellate representation in addition to litigating at the trial court level.  If you are contemplating an appeal, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.

CAROLE T. ORLAND QUOTED IN GREENWICH MAGAZINE, JULY 2019.

No.191 SEPARATE WAYS CAROLE ORLAND

When it comes to divorce, the dirty little secret is not that one of the partners had an affair; rather, it’s that this transgression will not significantly affect the court settlement. Here in Connecticut, assets in most  divorce cases nearly always get split down the middle. As for his affair with the dog groomer? That might nudge the needle a bit, to 50/50 or maybe 60/40 percent – but beyond that? Not likely.

Child Support is mandated by state guidelines, and alimony, too, falls within a range that any reputable divorce attorney can estimate. Even Parenting Plans are predictable, reflecting the availability of each party to parent the children. While the court considers all circumstances in a divorce case, says Carole Topol Orland, attorney and cofounding member and partner of Broder & Orland LLC in Westport and Greenwich, it doesn’t have to apply any of them to the settlement.

So why make divorce a war? Find an experienced attorney beforehand who can clue you in on the likely outcome, saving you lots of anguish, time and money.  Carole T. Orland

Read the full article, published in the July 2019 issue of the Greenwich Magazine as well as all their publications including Westport, New Canaan-Darien, Stamford and Fairfield.

 

 

THE SECRET TO GETTING THE MOST OUT OF YOUR MEDIATED DIVORCE

This Week’s Blog by Lauren M. Healy.

What is mediation?

Mediation is a process where you and your spouse jointly hire a neutral third person (a mediator) to help settle the terms of your divorce. Your agreement is then memorialized by the mediator. One of the major benefits of mediation is that you and your spouse have control over the process, such as the timing of the case, the tenor of the negotiations and the ultimate terms of an agreement.

What do I need to know before I agree to mediation?

In mediation, you and your spouse (not a Judge and not the mediator) determine how the case settles. While the mediator may provide neutral guidance, he (or she) will not take sides and does not advocate for either party. In fact, in Connecticut, mediators are not even necessarily attorneys.

How can I best represent myself in mediation?

Without your own independent counsel, you may find it difficult to navigate the complexities of a divorce, including making major financial and parenting decisions. The secret to getting the most from mediation is to hire your own attorney to coach you through mediation, or “review counsel” to assist you during the process. Instead of taking a neutral approach, as the mediator does, your divorce coach or review counsel will help you negotiate a resolution that is in your best interest.

What is the role of the lawyer who serves as coach or review counsel?

Review counsel typically does not attend the mediation sessions with you. He or she also does not usually file an appearance with the Court, but instead provides you with background support, such as:

  1. Explaining the Divorce Process. You may have questions that you do not want to ask the mediator in front of your spouse. Review counsel can provide you with a more detailed explanation tailored to your concerns.
  1. Strategic Preparation for Mediation Sessions. One of the major benefits of retaining a divorce coach is the ability to plan and prepare for mediation sessions in advance. For example, if you know that your next mediation session will be focused on alimony, you can meet with your review counsel in advance to review your rights and settlement options.
  1. Review of the Parenting Plan/Separation Agreement. Your divorce coach or review counsel should review any agreement before you sign it, to make sure that it is drafted in a way that is fair, equitable and beneficial (or at least not detrimental!) to you.

Am I allowed to have a divorce coach or review counsel during Mediation?

It is perfectly acceptable for you to have an attorney “on your side” during mediation. In fact, Mediators often recommend it to both parties.

The attorneys at Broder & Orland LLC are committed to helping our clients navigate their divorce issues in the most effective way possible, whether it be assisting clients as a mediator or as mediation divorce coach or review counsel.