Month: September 2019

What Happens at a Preargument Conference in a Connecticut Family Law Appeal?

This Week’s Blog by Sarah E. Murray.

What is a Preargument Conference?

In most appeals of civil cases in Connecticut, including family law and divorce cases, a Preargument Conference is required prior to the appeal progressing to the briefing and oral argument stages. The Preargument Conference is a confidential settlement opportunity that takes place with an experienced judge who will meet with counsel for both parties and attempt to help the parties reach a settlement in lieu of continuing with the appeal. Because an appeal can be a long, expensive process that usually follows an already extensive period of litigation, the Preargument Conference is an opportunity to avoid continuing litigation in favor of the finality of a settlement.

The Preargument Conference can also provide an opportunity to narrow the issues presented for appeal if the case cannot be globally settled. In discussing the pending appellate issues with the judge at the Preargument Conference, he or she can provide helpful insight into the likelihood of success on appeal. If it is appropriate for the case to be transferred to the Connecticut Supreme Court, the Preargument Conference judge has the authority to recommend that as well.

When is the Preargument Conference Scheduled?

In most family law cases, the Appellate Court will schedule the case for a Preargument Conference prior to briefs being due; so, if the case settles, the conference avoids the parties having to incur significant legal fees for the research and drafting of the brief. Within a few months of an appeal being filed, counsel for the parties will typically receive a notice or letter notifying them of the assigned time and place for the Preargument Conference.

Where does a Preargument Conference Take Place?

The Preargument Conference usually takes place at a different courthouse from the courthouse where your case was tried. On the day of the Preargument Conference, the assigned judge meets with counsel in chambers. It is rare, though not unheard of, for the judge to meet with the parties.

Do I Have to Attend the Preargument Conference?

The short answer to this question is: Yes. According to Connecticut Practice Book Section 63-10, which governs Preargument Conferences: “Unless other arrangements have been approved in advance by the conference judge, parties shall be present at the conference site and available for consultation.” The primary reason that parties must be present for Preargument Conferences is so that they can actively participate in any settlement negotiations and authorize their counsel to enter into a settlement of the case. If a case settles during a Preargument Conference, the Preargument Conference judge has the authority to enter an agreement into the record that day, and the parties must be present in Court in such an event.

Who Attends the Preargument Conference?

Parties and their appellate counsel must attend the Preargument Conference as a rule (see above). At Broder & Orland LLC, we find it is useful for trial counsel, if different from appellate counsel, to attend as well, as he or she can sometimes provide helpful input regarding the case and potential avenues for settlement. If there are any other professionals or advisors, financial or otherwise, who can aid in settling the case, it may be helpful for them to attend or be available by telephone to discuss any settlement offers.

What Should I Do to Prepare for a Preargument Conference?

It is helpful to meet or speak with your trial and appellate counsel prior to a Preargument Conference to discuss any settlement offer that you authorize to be made at or before the conference, as well as the strengths and weaknesses of both sides’ cases. If you are the appellant (i.e., the person taking the appeal), you should decide before the Preargument Conference what, if any, settlement you would consider in order to withdraw your appeal. As with any settlement negotiation, you should determine your “best case” scenario as well as your bottom line.

If you are the appellee (i.e., the person defending against the appeal), you may question why, as the person who is not appealing the final judgment in your case, you should consider settling. There are many reasons why an appellee could or should consider settling the case, such as: 1) having the finality of a settled judgment; 2) avoiding the time, expense, and uncertainty of further litigation; and 3) avoiding a reversal of the judgment in your case if that is a real possibility. The appellee should consider in advance of a Preargument Conference any concessions he or she would be willing to make in order for the appeal to be withdrawn.

What Happens to the Appeal if the Case is Settled at the Preargument Conference?

Any global settlement at the Preargument Conference should include a statement that the appeal will be withdrawn with prejudice upon acceptance of the settlement agreement by the trial court.

What Happens after the Preargument Conference if the Case Does Not Settle?

Even if you do not settle the case at the Preargument Conference, your case can still be settled at any time before the appeal is decided by the Appellate Court. If the case is not settled that the Preargument Conference, the appellant must begin preparation of his or her brief, as the deadline for submission usually falls within approximately 45 days of the Preargument Conference. The Preargument Conference judge does have the authority to extend the time for the filing of the appellant’s brief in the event that the appellate counsel needs more time or in the event that the parties request additional time to attempt to settle the case.

Broder and Orland LLC provides appellate representation in addition to litigating family and divorce cases 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.

Why Taking Divorce Advice From Friends Can Be Dangerous

This Week’s Blog by Lauren M. Healy.

Why Taking Divorce Advice From Friends Can Be Dangerous

Scared. Lonely. Angry. Sad. Vulnerable. Just a few of the emotions that you may feel when you are going through a divorce. It is no wonder that our clients often look to friends and family, especially those who have also been divorced, to provide comfort and support during a difficult time. After all, it is friends and family who have your best interest at heart. Why, then, should your divorce attorney be cautioning you against taking such advice?

Unrealistic Expectations

Probably the most common mistake that people make when taking the advice from friends, colleagues or acquaintances about divorce is assuming that all Connecticut divorces are treated the same way. For example, if your friend who was married for the same amount of time as you received lifetime alimony in her divorce, shouldn’t you receive the same? Even the most innocuous conversations about other people’s divorces can set unreasonable or unrealistic expectations. In reality, settlement outcomes, and trial decisions for that matter, are largely fact specific. While there are particular statutes that provide criteria for a judge consider when determining alimony and property division, the actual application of that statutory criteria is different in every case. There are so many different factors that come into play that it is downright risky to assume that your case will result in the same outcome as any other case. Your attorney is the best person to advise you about how your case is likely to be resolved.

Not All Divorces Are Created Equal

It is important to work with your attorney to create a strategy for your case that is determined based on the facts and goals of your family. It is common for clients to feel pressure from outside sources, be it family, friends or other advisors, to make demands or act in a certain manner. Taking strategic advice from non-attorneys, no matter how well-meaning, can backfire because they most likely do not understand all of the intricacies involved. While it can be helpful to consider the input of outside advisors, remember that such advice might be entirely inconsistent with the facts of your case or the applicable law. Your attorney is looking at the big picture, including your needs, your goals as well as the likelihood of achieving certain outcomes. It can be extremely helpful to put these advisors in touch with your attorney, so that there can be collaboration and understanding with regard to the possible and likely resolutions of your case.

You Hired Us For A Reason. Let Us Do Our job!

You went through the process of carefully vetting your attorney and you hired us for a reason—to guide you through the legal process of divorce, and to provide you with the knowledge and power to make decisions that are best for you. Listen to us! We have particular insight, not just in the laws of the state of Connecticut, but also into the background of the Judges, court system and opposing counsel. While you may not always want to take our advice, at least make sure you understand it, before rejecting it. In the end, know that the decision will be yours, as the client.

At Broder & Orland LLC, we are sensitive to the unique facts of every case. We encourage the inclusion and participation of different support systems for our clients and will often create a team approach, along with therapists and financial professionals, in order to best achieve a positive resolution for our client.

Should a Financial Forensic Evaluator be Retained in My Divorce Case ?

This Week’s Blog by Carole T. Orland

Should a Financial Forensic Evaluator be Retained in My Divorce Case ?

What is a financial forensic evaluator?

A financial forensic evaluator is typically an individual with certain certifications and qualifications who is educated and trained to analyze financial information in your divorce case. This may include, for example, an analysis of income, or valuation of various assets such as privately held businesses, equity awards, private equity and hedge fund interests, and other alternative investments.

When should a financial forensic evaluator become involved in my divorce case?

Usually a financial forensic evaluator should be retained as soon as counsel recognizes that there may be valuation issues in your divorce case. The evaluator can assist in fashioning pertinent discovery requests and responses. Occasionally there are circumstances where one party will wait to see the other party’s analysis and valuation. A seasoned divorce attorney will be able to guide you through these strategic situations.

Can the parties hire one neutral financial forensic evaluator?

This is possible. In some divorce cases the party will agree on one neutral financial forensic evaluator and further agree to be bound by the conclusions of that expert. In other cases, parties may agree to start with a neutral but retain the right to hire his or her own evaluator, should he/she disagree with the neutral’s evaluation.

What types of documents will the financial forensic evaluator want?

In the case of an income analysis, the forensic financial evaluator may want to review tax returns, pay stubs, year-end pay statements, statements from credit card and bank/brokerage accounts, and employment contracts. With regard to business assets, the financial forensic evaluator will want to look at such items as Profit and Loss Statements, Balance Sheets, General Ledgers, Partnership Agreements, Operating Agreements, corporate/partnership tax returns, K-1s, and business accounts. In the case of alternative investments, it will be important to review documents such as Operating Agreements, investor correspondence and Private Placement Memoranda. And for equity awards such as stock options, RSUs, and Phantom Equity awards, items such as vesting schedules, agreements, and plan documents will require review.

Can I expect the financial forensic evaluator to prepare a report?

Whether a report is to be prepared is up to the party hiring the financial forensic evaluator. Again, experienced divorce counsel will be able to guide you on this aspect of litigation.

Will the financial forensic evaluator testify at my divorce trial?

Typically yes, unless there is an agreement that his or her valuation is stipulated to by the other party or the parties work out a compromise valuation. In order to testify as an expert, a party must formally disclose that expert in advance in accordance with Connecticut Practice Book Rules.

Can the financial forensic evaluator assist my divorce case in other ways?

Absolutely! And most commonly with discovery, depositions, analyzing the opposing party’s valuation, Proposed Orders for the Court, and trial preparation. Ideally he/she will assist in settlement negotiations and a resolution of your divorce case without the need for a trial.

At Broder & Orland LLC with offices in Westport and Greenwich, Connecticut we have extensive experience working with financial forensic evaluators in all facets of divorce litigation.

What Provisions Should Be Included in a Parenting Plan?

This Week’s Blog by Nicole M. DiGiose.

What is a Parenting Plan?

A Parenting Plan is a document, usually in the form of an agreement, that addresses child-related issues, such as legal custody and a parental access schedule. In the absence of an agreed-upon Parenting Plan, a Court will determine a Parenting Plan that it believes is in the child(ren)’s best interests.

 When does a Parenting Plan need to be Submitted to the Court?

 A proposed Parenting Plan must be submitted to the Court on or before the Case Management Date, which is approximately ninety days after filing an action for dissolution of marriage. If parenting issues are disputed at the time of the Case Management Date, the parties are required to appear in Court and may be ordered to meet with a Family Relations counselor.

 What is Legal Custody?

Legal custody is the power to make decisions for a minor child(ren). Such decisions include the child(ren)’s health, education, religion, and welfare. Legal custody may be shared jointly, awarded to one parent only after good faith consultation with the other parent, or awarded solely to one parent without good faith consultation. A Parenting Plan must set forth how legal custody is shared and typically includes a definition of legal custody.

What is a Parenting Coordinator?

A Parenting Coordinator, or “P.C.,” is an individual who may be engaged by parents to help them communicate better, make decisions on behalf of their child(ren), and resolve disputes. P.C.s are generally mental health professionals or social workers. P.C.s are not judges and cannot make binding decisions—they can, however, make recommendations. Often, parents will elect to include a provision about a P.C. in their Parenting Plan. These provisions typically require both parents to meet with a P.C. in an attempt to resolve any parenting dispute before submitting the matter to a Court.

 What is a Regular Parental Access Schedule?

A regular parental access schedule sets forth when each parent will parent the child(ren) during non-holiday and vacation time. It is the day-to-day schedule. A regular parental access schedule is not “one size fits all” and will vary from family to family.

 What is a Holiday and Vacation Schedule?

 A holiday and vacation schedule sets forth all holidays that are celebrated by a family and delineates how they are shared. Parents often elect to alternate holidays such that one parent has parenting time in even-numbered years and the other parent has parenting time in odd-numbered years. Parents may also elect to assign a specific holiday to one parent in every year. A holiday and vacation schedule also addresses summer vacation. Parents will typically select a number of weeks, consecutive or non-consecutive, that each parent will have during the summer.

 What Other Provisions Should be Included?

 Parenting Plans almost always contain non-disparagement language. They should also address notice provisions with respect to travel, as well as provisions related to the attendance of medical appointments, school conferences, extracurricular activities, and the introduction of new significant others.

 What is a Right of First Refusal?

Some parents elect to include a Right of First Refusal in their Parenting Plan. If a parent is unavailable to parent the child(ren) for a certain number of hours on his or her parenting time, he or she must give the other parent the option of parenting the child(ren) before he or she engages a childcare provider. If the non-scheduled parent is also unavailable, then the scheduled parent is typically responsible for the cost of any necessary childcare. The number of hours will vary from family to family. Four to six waking hours are common.

 What if my Spouse has issues with Drugs or Alcohol?

 Drug and alcohol testing may be included in a Parenting Plan. If one or both parents are struggling with substance abuse, he or she may be required to submit to drug or alcohol testing. A testing protocol, including the frequency of tests, will be delineated in the Parenting Plan. Said protocol will also include consequences in the case of a missed or positive test. If the parent struggling with substance abuse issues is able to achieve a certain level of sobriety, his or her parenting time may be expanded upon his or her reaching certain milestones.

Can Parenting Plans be Modified?

 Yes. Parenting Plans may be modified if there has been a material change of circumstances which alters a Court’s finding of the best interests of the child(ren) or a finding that the original order sought to be modified was not based upon the best interests of the child(ren).

At Broder & Orland LLC, we understand the sensitive nature of parenting issues in a divorce or custody dispute in Connecticut. Our skilled attorneys will guide you through the process of crafting a Parenting Plan that is consistent with your minor child(ren)’s best interests.