Month: December 2019

Discovery: What is it and do I Need to do it?

This Week’s Blog by Nicole M. DiGiose.

What is Discovery?

 Discovery is the process by which information is exchanged in your divorce case. Discovery typically involves written requests for documents, written requests for answers to questions, and depositions. During the discovery process, each side will have the opportunity to get transparency on the family’s financial circumstances, as well as the causes for the breakdown of the marriage. Discovery is permitted if the disclosure sought would be of assistance in the prosecution or defense of the action.

 When does the Discovery Process Start?

 A party may file a Request for Production at any time after the Return Date. The Return Date is selected when a divorce action is commenced. It is approximately thirty days after the initial divorce papers are signed.

 What is a Request for Production?

 A Request for Production is a written request for the other party to provide certain documents. Typically, the documents requested are related to a party’s income, expenses, assets, liabilities, and the causes for the breakdown of the marriage. A Request for Production is not necessarily a standard form. In a Connecticut divorce, certain discovery is mandatory: tax returns, W-2s, K-1s, and 1099s, paystubs, account statements, retirement statements, life insurance statements, medical insurance summaries, and appraisals. However, a party may request other categories of documents, for example, those related to trusts and estates, businesses, telephone records, calendars, and photographs.

How Long do I have to Respond to a Request for Production?

Sixty days, but an extension may be sought.

What are Requests to Admit?

A Request to Admit is a written request for the other party to admit or deny certain statements under oath. Similar to a Request to Admit is a Request for Interrogatories. A Request for Interrogatories is a written request for the other party to answer certain questions under oath. A Request for Interrogatories is rarely used in a Connecticut divorce. More often, Depositions are taken instead if a party can afford the cost.

How Long do I have to Respond to a Request to Admit and a Request for Interrogatories?

Thirty days, but an extension may be sought. If a response is not given within thirty days, or longer pursuant to an extension, all requests are deemed to be admitted. A party has sixty days to respond to a Request for Interrogatories.

 Can I Object to a Discovery Request?

 In a Connecticut divorce, discovery is broad. However, some requests may be objectionable. A party may object to a particular request on the grounds that it is overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, not reasonably limited in scope or timeframe, or crafted merely to harass, annoy, or embarrass the party from whom discovery is sought. Pursuant to Practice Book Section 13-10(i), the attorneys must first make good faith attempts to resolve the objection, and only if they are unable to do so, a Judge will rule on the objection. If an objection is overruled, the documents must be produced by a date set by the Judge.

What Happens if a Party Doesn’t Respond to a Discovery Request?

If a party does not respond to a Discovery request, the requesting party may file a Motion to Compel, also known as a Motion for Order of Compliance. That Motion requests that a Judge order the other party to produce the requested documents.

 What is a Deposition?

 A Deposition is when an attorney orally asks the other party questions under oath outside of Courtroom setting, usually in a lawyer’s office

 Is Discovery the Same in Every Case?

 No. The amount of discovery needed, as well as the method(s) by which discovery is obtained will vary on a case by case basis. Complex cases typically require a more thorough investigation. This may occur where a party’s income structure is not straightforward, or if there are business interests or investments, for example. The form(s) of discovery, as well as the specific requests, are tailored to the needs of each case.

 Whether it’s deciding which discovery mechanisms to utilize, compiling your discovery responses, or reviewing the other party’s discovery responses, our skilled attorneys at Broder & Orland LLC will walk you through every step of the discovery process.

Sarah E. Murray Presents at Westport-Weston Bar Association

Sarah E. Murray Presents on Cohabitation Issues in Family Law Cases at Westport-Weston Bar Association.

Sarah E. Murray, Partner at Broder & Orland LLC, gave a seminar at the Westport-Weston Bar Association on November 21, 2019, entitled “Navigating Cohabitation Issues in Connecticut Family Law Cases.”  She discussed relevant case law regarding the modification of alimony in Connecticut on the basis of cohabitation, including takeaways for preparing and presenting a cohabitation case. She also delved into considerations when drafting Separation Agreement language regarding the modifiability of alimony based on cohabitation.

How are Same-Sex Divorces Handled in Connecticut?

This Week’s Blog by Jaime S. Dursht.

How are Same-Sex Divorces Handled in Connecticut?

Same-sex divorce in Connecticut is governed by the same Family Law statutes as heterosexual divorce, however, there are particular issues that should be analyzed at the outset of the process to ensure a successful outcome. Connecticut legally recognized same-sex marriage in 2008, and since then there have been additional changes in both Federal and State law that have affected the application of Family Law in Connecticut. For example, in 2016, the Internal Revenue Service issued a ruling re-defining terms such as “spouse,” “husband and wife” and “marriage” to include individuals married to a person of the same sex if the individuals are lawfully married under state law. Because the divorce process involves asset division and transfers that are exempt from taxation if pursuant to divorce, applicability is particularly important because it is based on recognition of one’s legal marital status.

How is Jurisdiction of Same-Sex Divorce Determined in Connecticut?

Connecticut not only recognizes same-sex marriage, but will automatically merge civil unions that were entered into prior to the marriage (Conn. Gen. Stat. 46b-38qq). Connecticut will also recognize an out-of-state relationship as marriage if the jurisdiction of origin provides substantially the same rights, benefits and responsibilities as a marriage recognized in Connecticut (Conn. Gen. Stat. 46b-28a). This means that if an individual meets the residency requirements of living in Connecticut for at least 12 months prior to the filing of a divorce action, parties to a formal relationship originating in another state may divorce in Connecticut so long as the relationship criteria are met.

How are Custody and Parenting Plans in Same-Sex Divorce Handled in Connecticut?

An initial step for parties with children in any divorce is to determine the parenting arrangements. In same-sex divorce, custody and parenting plans can be established once the child(ren)’s legal parents are identified. This is because Connecticut statutes providing for parental rights and obligations of both custody and support extend and apply to legally recognized parents. For same-sex couples that may include confirming the existence of a surrogacy agreement, legal adoption and co-adoption, and spousal consent under the alternative reproductive technology law. A parent who is not legally recognized as such may assert custodial rights, but only through a third-party custody proceeding.   In Connecticut, there is a marital presumption that a child born to a married woman is presumed to be the child of both individuals in the marriage. When Connecticut recognized same-sex marriages in 2008, the presumption extended to children born to individuals in same-sex marriages.

Once parentage is established, the same statutory criteria apply with respect to determining parenting plans in accordance with best interests of the children (Conn. Gen. Stat. § 46b-56) and with respect to the calculation and enforcement of child support (Conn. Gen. Stat. 46b-37).

What are Factors to Consider for Alimony and Asset Division in a Connecticut Same-Sex Divorce?

In Connecticut, one of the statutory factors that is considered in both the calculation of alimony and the equitable division of assets is “the length of the marriage.” (Conn. Gen. Stat. 46b-81 and 82). Since Connecticut legally recognizes same-sex marriages, it would seem to be a straightforward determination, however, some couples have been together far longer than Connecticut has recognized that legal relationship and want to include that time. Connecticut does not recognize cohabitation or common-law marriage, but Connecticut civil unions are automatically merged into marriages by operation of statute (Conn. Gen. Stat. § 46b-38rr(a)), and Connecticut will recognize legal relationships entered into outside of Connecticut as marriage as long as that relationship conferred similar legal rights and obligations benefits of marriage in the state of origin making it possible to include it in the length of the marriage.

What are Federal Tax Considerations for Same-Sex Divorce in Connecticut?

The Internal Revenue Service redefined its marital status terms in 2016 to include individuals married to another person of the same sex if the couple is lawfully married under state law. IRS Revenue Ruling 2013-17 specifically excludes domestic partnerships, civil unions and other formal relationships that are not recognized as marriage under state law. This is important for individuals in same-sex marriages and by extension, divorce, because not all individuals will be able to claim alimony payments as non-taxable income for example or characterize lump sum alimony as a non-taxable property distribution incident to divorce.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. Our attorneys are experienced with the unique issues faced by individuals in a same-sex divorce, and understand the evolving law with respect to both parenting and financial planning to achieve the desired results moving forward.

DO GRANDPARENTS HAVE A LEGAL RIGHT TO VISITATION WITH A GRANDCHILD

This Week’s Blog by Andrew M. Eliot. 

Do Grandparents Have any Legal Visitation Rights

In Connecticut, grandparents do not have any inherent or “automatic” legal rights with respect to access to or visitation with a grandchild. That said, pursuant to governing Connecticut statutes, a grandparent (and, in fact, any third-party), has the right to petition the court for visitation rights with respect to a minor child.

Under What Circumstances Will Connecticut Courts Grant Visitation Rights to a Non-Parent?

Pursuant to Connecticut General Statutes §46b-59, any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. In order to succeed on such a petition, the person seeking visitation rights with a minor child must prove, by “clear and convincing evidence,” that: (i) a “parent-like relationship” exists between the petitioning party and the minor child; and (ii) that denial of visitation would cause “real and significant harm.” See C.G.S. §46b-59.

How Do Courts Assess Whether a “Parent-Like Relationship” Exists Between a Minor Child and a Non-Parent?

In assessing whether a “parent-like relationship” exists between a non-parent and a minor child, courts may consider (but are not limited to considering), the following factors:

  1. The existence and length of a relationship between the person and the minor child;
  2. The length of time that the relationship between the person and the minor child has been disrupted;
  3. The specific parent-like activities of the person seeking visitation toward the minor child;
  4. Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent;
  5. The significant absence of a parent from the life of a minor child;
  6. The death of one of the minor child’s parents;
  7. The physical separation of the parents of the minor child;
  8. The fitness of the person seeking visitation; and
  9. The fitness of the custodial parent.

 Is the “Parent-Like Relationship” Standard Any Different for Grandparents?

Notably, the answer to this question is “yes.” In addition to the factors enumerated above, Connecticut’s governing statute sets forth one additional consideration for assessing whether a “parent-like relationship” exists between a non-parent and a minor child that is applicable only to grandparents. Specifically, Connecticut General Statutes §46b-59(d) provides that in determining whether a parent-like relationship exists between a grandparent and a minor child, the Superior Court may consider “the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child.”

 How Do Courts Determine Whether Denial of Visitation Would Cause Real and Significant Harm?

While there is no definitive answer to this question, in situations where a petitioning party is able to establish the existence of a “parent-like relationship,” Courts typically find that the requisite harm standard is met were visitation to be denied due to the negative effects that severing such a relationship would have on a child. Stated somewhat differently, the requisite harm will generally be established where a third party who has acted as parent to the child is abruptly cut out of the child’s life.

What Will Visitation Look Like if a Non-Parent Petition is Successful?

If the Court grants visitation rights to a non-parent, the governing statute directs courts to set forth the terms and conditions of the visitation including, but not limited to, the schedule of visitation, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child. Notably, in determining the best interest of the minor child, Courts are also directed by statute to consider the wishes of the minor child if such minor child is “of sufficient age and capable of forming an intelligent opinion.” See C.G.S. §46b-59(f).

Although rare, cases involving grandparent (or non-parent) visitation rights are often extremely complex and, in order to be handled properly, require a great deal of expertise and attention. At Broder & Orland LLC, we have extensive experience handling such matters and are poised to help clients achieve favorable results when such issues arise.

Parental Alienation in Connecticut Divorce

This Week’s Blog by Christopher J. DeMattie.

What is Parental Alienation?

 Alienating Behavior is defined as an action by a parent which threatens the relationship between a child and a parent.

Parental Alienation has been defined as: “circumstance where one parent portrays the other parent in a negative light, and the child takes note of such portrayal. The child has less or no contact with the alienated parent based on the perception put forth by the other parent.” In re Jaime S., 120 Conn. App. 712, 726–28 (2010).

Thus, the difference between Alienating Behavior and Parental Alienation is for there to be Parental Alienation, alienating behaviors must result in the child having less or no contact with the parent being alienated.

Some examples of Alienating Behavior are:

  1. Unreasonably calling the police on the other parent;
  1. Unreasonably calling the Department of Children and Families (DCF) on the other parent;
  1. Abducting a child;
  1. Preventing parenting time;
  1. Severing communication between a parent and child; or
  1. Telling a child to lie to disrupt parenting time.

Do Connecticut Family Courts Recognize Parental Alienation Syndrome?

 The short answer is no. The Court in Mastrangelo v. Mastrangelo, No. NNHFA054012782S, 2012 WL 6901161, held: “the concept of ‘parental alienation syndrome’ does not meet the relevant standards.” The Court based its reasoning in part that: “the concept of ‘parental alienation syndrome’ is not recognized as a disorder by the medical or legal communities and the theory and related research have been extensively criticized by legal and mental health scholars for lacking scientific validity and reliability.”

How does Parental Alienation Impact my Connecticut Divorce?

 Even though Parental Alienation Syndrome is not recognized by Connecticut Family Courts, the underlying actions or behavior by a parent may have a major impact on your divorce, especially concerning issues of legal custody and parenting time. When entering orders relative to custody, care, education, or visitation, the Court is governed by Connecticut General Statutes §46b-56. Specifically, the Court shall consider the best interest of the child and sixteen factors are listed, which the Court may consider. Of the sixteen factors, three relate directly to the issues of Alienating Behavior and Parental Alienation. Specifically: “…(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; …(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;…”

If you believe your spouse is attempting to alienate the children from you, it is important to contemporaneously document the alienating behavior as best you can. For example, if your spouse is making it difficult for you to spend time or communicate with your children, it will be beneficial to make requests in writing (email is preferable to text messages) requesting dates and times to spend with your children and/ or talk to them. This way you will be able to prove that you made the requests and your spouse’s responses (good or bad) could end up as evidence as well.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce. As experienced divorce and custody trial lawyers we understand how to effectively prosecute and defend cases involving Parental Alienation to the Court, as well as how to retain the necessary consultants and/or experts for your case.