Month: April 2020

When Cheating Counts in a Connecticut Divorce

This week’s blog by Westport divorce lawyer Jaime S. Dursht

WHEN CHEATING COUNTS IN A CONNECTICUT DIVORCE

There is a widely held perception that because Connecticut is a no-fault divorce State, that cheating or adultery or whatever term is used to describe marital infidelity, does not affect the outcome.  That is only partially true.  No-fault divorce means that a party is not required to allege and prove wrongful conduct, e.g., adultery, in order to obtain a divorce.  It does not mean, however, that it will not be considered by a court in its determination of how the marital estate is to be divided or the extent of an alimony obligation because it is a relevant factor to both of these if it caused the breakdown of the marriage, and depending on the degree of infidelity, could very well impact the final outcome.

Will My Spouse Allege Infidelity as Grounds for a Connecticut Divorce?

Connecticut Family Law statutes provide:  “A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: … (3) adultery; … ” and further provides: “For the purposes of this section, “adultery” means voluntary sexual intercourse between a married person and a person other than such person’s spouse.” C.G.S. 46b-40.  While adultery remains on the books as a cause of action for divorce, the more commonly claimed ground is that of irretrievable breakdown of the marriage which serves to establish the jurisdiction of the court without unnecessary scandal or embarrassment that might otherwise result at the commencement of the action.  However, alleging irretrievable breakdown as grounds for divorce does not prevent or preclude the subsequent consideration of infidelity by the court for other purposes such as asset division and alimony.

Will Infidelity Affect How Marital Assets are Divided in a Connecticut Divorce?

Possibly, yes.  It depends on how egregious, how flagrant, how inappropriate or how persistent the conduct was and the degree to which it caused the breakdown of the marriage.  Here are just a few examples in a nutshell:

Where a husband’s repeated infidelity, alcohol use, lack of communication and dictatorial personality caused the breakdown of the marriage, it was not an abuse of the court’s discretion to award the wife 67% of the marital assets.  Greco v. Greco, 70 Conn.App. 735 (2002).

Where a husband’s extramarital conduct was so flagrant, so inappropriate and so frequent that it resulted in the breakdown of the marriage, the court awarded 70% of most of the assets to the wife.  The husband had fathered a child out of wedlock and spent considerable family resources on the paramour and child.  Thomson v. Thomson, Superior Court of Connecticut, judicial district of Stamford-Norwalk, docket no. FA1304024747S, August 4, 2015 (Shay, J.).

Where a husband was found to be a playboy who fathered another woman’s child during the marriage, the court awarded 70% of the marital estate to the wife.  Blint v. Blint, Superior Court of Connecticut, judicial district of Hartford, docket no. FA000723514S, March 8, 2002 (Brennan, J.).

The cause of the breakdown of the marriage is just one of many statutory factors the court considers when dividing the marital estate and its conclusion is based on the comparative fault of the parties.  The examples above are extreme but nevertheless illustrate how courts have handled egregious infidelity during a marriage.

Will Infidelity Affect the Award of Alimony in a Connecticut Divorce?

The statutory factors that a court will consider in the division of marital assets are very similar  to those considered in making an award of alimony, and include  the cause of the breakdown of the marriage  as a relevant factor to the determination of alimony.  The difference, however, is that the purpose of alimony is for a spouse to meet an ongoing duty to support the other spouse as a result of the marriage.  While a court is not obligated to articulate the weight it gives each statutory factor, other factors tend to be more relevant to the determination such as one’s age, health, employability, occupation, station and sources of income.

Will Infidelity be Publicized during a Connecticut Divorce?

Generally, no.  Although trials are public in the sense that the courthouse doors are open to the general public, it is rare that divorce trials are attended by anyone other than the parties involved and possibly other litigants attending court for their own matters.  After the conclusion of trial there will be a Memorandum of Decision issued which is a public document in that it is published and made available through online legal research providers, but unless there are celebrities involved the decisions are not otherwise publicized.

Most divorces are privately negotiated and resolved without a trial, however, it is important to keep in mind that the successful negotiation, mediation or other type of dispute resolution will rely on data derived from trial outcomes.  Infidelity as well as other types of misconduct during a marriage are not only relevant but often influence the dynamic of a negotiation and may affect bargaining positions. Therefore, it is critical to have legal counsel with substantive knowledge of the relevant issues but just as critical to have counsel experienced in litigation should it become necessary.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce.  Our attorneys are extremely knowledgeable with the issues of how and to what degree various factors of fault may impact marital asset division and alimony, and are experienced courtroom advocates in advancing and defending claims of fault.

  

CONFIDENTIALITY AGREEMENTS AND THE DISCLOSURE OF SENSITIVE BUSINESS RECORDS IN A DIVORCE

This Week’s Blog by Andrew M. Eliot, a Westport and Greenwich attorney at Broder & Orland LLC.

           While divorce can be a difficult and stressful process under normal circumstances, it can be especially stressful and complicated for business owners, or for anyone who holds an ownership interest in a business.    Many business owners (or business interest owners) want, or are otherwise required by company policy, to keep certain records and information regarding their business confidential. However, in Connecticut, a business interest constitutes an asset that is subject to equitable distribution between divorcing parties and, as result, where a business interest is at stake in a divorce, a professional appraisal of that interest by a business valuation expert is often necessary. What happens when your spouse asks you to produce confidential or sensitive business records?

Are Confidential or Sensitive Business Records Discoverable in a Divorce?

Generally speaking, yes. In a divorce, each party has the right to seek full and complete disclosure of any and all pertinent financial records from his or her spouse. Accordingly, if you own a business or own an interest in a business, your spouse will be entitled to seek information relating to your business interest (even sensitive or otherwise confidential information ) which is relevant to any financial issues in your divorce including, for example, the value of your business interest or the amount of income that you derive from a business. While you will always maintain a right to object to any specific requests for information (on any number of available bases), at the end of the day you may be required by a judge to produce sensitive information that you or your business would otherwise wish to keep confidential.

How Can I Limit Exposure of Confidential Business Information?

A common way to limit the exposure of any sensitive and/or confidential business information that you are required to disclose to your spouse in a divorce is to execute a Confidentiality Agreement, also referred to as a Non-Disclosure Agreement.

What is a Confidentiality Agreement?

A Confidentiality Agreement is a legal contract between parties establishing a confidential relationship between a person or company who is required to disclose sensitive information, and the person(s) to whom such information will be disclosed. In the context of a divorce, a Confidentiality Agreement typically precludes the non-disclosing spouse (i.e., the spouse who has requested and is receiving the confidential information) from disseminating the confidential information he or she receives pursuant to the Agreement to any third parties, typically with the exception of his or her attorney or any relevant experts that he or she has retained. Depending on the nature of the business and/or the information at issue, the disclosing party may also ask a court to seal the court record to prevent any information offered into evidence at a judicial proceeding from becoming public.

What Should be Included in a Confidentiality Agreement?

While Confidentiality Agreements should not be approached with a “one size fits all,” mentality, any such Agreement should, at a minimum: (1) define with specificity the type of information that will be protected by the Agreement; (2) delineate clearly the person(s) or institution(s) to whom any confidential information disclosed pursuant to the Agreement may be disseminated; (3) set forth with specificity the purposes for which confidential information may be utilized; (4) set forth with specificity what measures any parties to whom confidential information is disseminated must take to ensure that confidentiality is maintained (including rules about how confidential materials must be stored and/or maintained and how and when they must be destroyed); and (5) setting forth remedies that the disclosing party may seek against the non-disclosing party if the Confidentiality Agreement is breached.

At Broder & Orland LLC, we are extremely experienced and adept at drafting and negotiating Confidentiality Agreements in order to help our clients protect against the dissemination of confidential or otherwise sensitive business information.

PRENUPTIAL AGREEMENTS AND WEDDING POSTPONEMENTS IN THE TIME OF COVID-19

This Week’s Blog by Andrew M. Eliot, a Westport and Greenwich lawyer at Broder & Orland LLC.

Over the course of the past three weeks, as a result of COVID-19, our office has received a variety of inquiries from both current and potential clients wondering what impact, if any, the postponement of their wedding plans will have upon (a) an already-executed prenuptial agreement, or (b) the advisability of commencing or continuing with the negotiation of a prenuptial agreement in the absence of a date-certain for the anticipated wedding.

Timing: When are Prenuptial Agreements Typically Signed?

A prenuptial agreement is a written contract entered into by two people before they are married. Its purpose is to resolve, in advance, various financial matters that will necessarily arise from the marriage in the event of divorce or death of a spouse.

While there are no specific rules about how far in advance of a marriage date a prenuptial agreement must be signed, family law practitioners typically (and wisely) advise parties to execute a prenuptial agreement well in advance of a wedding date. Doing so not only ensures that parties have sufficient time to consider the agreement before getting married, it helps ensure that the agreement will be enforced by a court should either party later challenge the validity of the agreement on the basis that it was signed under duress. Signing an agreement well in advance of a wedding date also avoids an unpleasant scenario wherein parties are involved in stressful contract negotiations shortly before their wedding which can cast a dark shadow over an otherwise exciting and joyful event.

If My Wedding Has Been Postponed, Is my Signed Prenuptial Agreement Effective?

Although prenuptial agreements are executed prior to the date of marriage, unlike most contracts, they do not become effective when the Agreement is signed. Rather, prenuptial agreements (unless otherwise provided) only become effective when the parties to the agreement actually get married. Accordingly, if you have already signed a prenuptial agreement, but have postponed your wedding, your agreement is not invalidated, it’s just that the “effective date” of your agreement has now also been postponed.

Should I Sign a New Prenuptial Agreement if My Wedding Has Been Postponed?

If you have already signed a prenuptial agreement but your wedding has been postponed (whether due to COVID-19 or any other reason), it might be wise to sign a new or updated prenuptial agreement depending upon your particular circumstances. In Connecticut, like most other states, full and complete financial disclosure is required in order to ensure the enforceability of a prenuptial agreement in the event of divorce. In other words, a party to a prenuptial agreement can seek to have the prenuptial agreement set aside in the event of divorce if he or she can prove that the other party (typically the moneyed spouse) did not adequately disclose his or her assets or income.

Accordingly, if either party to a signed prenuptial agreement experiences a material change in his or her income and/or assets prior to the wedding date, it would be wise for the parties to either re-sign a new agreement closer to the wedding date with updated financial disclosures or, at the very least, attach signed and updated financial disclosures as an amendment to the initial contract close to the date of the wedding. This will help insulate each party from any claim by the other that he or she did not adequately disclose his or her assets or income in advance of the marriage date.

Should I put a Hold on Negotiating a Prenuptial Agreement Until I Know When My Wedding Will Occur?

While the timing of the execution of an agreement can be important, it is never too soon to negotiate the terms of the agreement itself. Coming to a mutual agreement about the terms and conditions of a prenuptial agreement can sometimes take several weeks or even several months, depending upon the degree of complexity of the agreement and the degree of negotiations that must take place. Accordingly, there is no reason to delay negotiating the terms of a prenuptial agreement even your actual wedding date is not going to be in the near future.

At Broder & Orland LLC, we are extremely adept at drafting and negotiating prenuptial agreements and can work with you to craft and finalize an agreement that satisfies your particular goals.

 

PARENTING PLAN MODIFICATIONS PROMPTED BY COVID-19

This Week’s Blog by Christopher J. DeMattie and Jaime S. Dursht, Westport and Greenwich attorneys at Broder & Orland LLC.

Parents around Fairfield County are grappling over how best to limit the daily risk of COVID-19 exposure, and for many, the social distancing and isolation measures pose logistical challenges to parenting access schedules as well as disputes over what safety practices protect the best interests of the children.

Since the law requires that custody orders be followed unless or until they are legally modified, issues arise as to how to avoid possible violations as well as how to accomplish legal modification of parenting plans, especially given the recent court closures and restrictions.

What is the Procedure to Modify my Parenting Plan?

Assuming your matter is post-judgment (a final judgment has entered), the process requires filing an Application with the Clerk. The Application must include the: (1) current Order, (2) grounds or the allegations being made to assert modification, and (3) the proposed change. Once filed, the Clerk will issue an Order assigning a specific date and time for hearing on the matter, which must then be served upon your former spouse within a specified time frame. Once service of process is completed, the action is initiated, and you and your former spouse must appear in Court on the assigned date.

Presently, until at least April 30, 2020, the Courts are limiting who may physically enter the Courthouse to those required to appear on specific emergency family matters. However, online access to filing Motions is available through the judicial e-File system, which allows for post-judgment filing when the underlying case was initiated in 2015 (when the e-File system went into effect) or later, and by facsimile filing for earlier cases.

Before the impact of COVID-19, the filing process and date assignment by the Clerk could take a day or so, however, due to the limited staff and hours at the Courthouse, we anticipate this taking much longer. Thus, if you are contemplating initiating a post-judgment Modification, it is advisable to “start the clock” running as soon as practicable.

What are the Standards for Modifications to Legal and/or Physical Custody?

The legal standard differs for modifications to legal custody versus modification to physical custody. Legal custody refers to parental decision making on matters of education, health, and religious upbringing. Physical custody refers to the schedule of parenting access or visitation.

If a party is seeking to modify only legal custody or both legal and physical custody, the modification must be based on either (1) a material change in circumstances which alters the Court’s finding of the best interests of the child, or (2) a determination that the current custody order was not based upon the best interests of the child when it was entered.

The legal standard for modification of physical custody, e.g., parenting access / visitation schedule, is that of the best interests of the child(ren). A party is not required to show a material change in circumstances.

In either case, the evidentiary burden of proof at a hearing is that of a preponderance of the evidence, which is “more likely than not.” Thus, the moving party has the burden of proving by a preponderance of the evidence that a change in either the legal and/or physical custody would be in the best interest of the child(ren).

What Factors will the Court Consider when Modifying Custody and/or a Parenting Plan?

In determining the best interests of the child(ren) a Court will consider many factors, including those set forth in Conn.Gen.Stat. 46b-56(c): (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand the needs of the child; (3) any relevant and material information obtained from the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (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 parties in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (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; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parent education program established pursuant to section 46b-69b.

Do I Risk a Charge of Contempt if I Do Not Follow the Parenting Plan?

A finding of contempt requires clear and convincing proof that (1) a clear order exists; (2) a party had the ability to comply; and (3) the party willfully did not comply. The purpose of a Motion for Contempt in the context of custody is to coerce compliance and to obtain remedial relief in the form of make-up time or possibly monetary fines.

For those parents who find themselves in precarious circumstances due to COVID-19, we advise you to do your best to adhere to your parenting plan obligations. If, for whatever reason, you find yourself unable to do that, then document your circumstances in real-time to preserve a record.

What Steps Can I Take to Reach a Temporary Agreement?

We encourage parents to attempt reasonable temporary arrangements with one another, and we are available to assist with negotiating and formalizing agreements to the extent necessary. Most Separation Agreements contain Modification Clauses that require any modification to be in writing and executed with the same formality as the Separation Agreement itself to be valid, and this applies to the terms of Custody Agreements.

Our attorneys at BRODER & ORLAND LLC, with offices in Westport and Greenwich, are very experienced with the issues of custody and parenting plan modifications. We remain available to assist you throughout the COVID-19 pandemic and thereafter, including the negotiating and formalization of temporary custody agreements.