“Cases Will Sit and Stagnate” How 2 Small Law Firms Are Dealing With Fallout From COVID-19.
Eric J. Broder was quoted in an article published in CNN on Aril 1, 2020. “Navigating Child Custody in the Time of Coronavirus”
The coronavirus pandemic and resulting measures to stem its spread have caused record unemployment numbers in the United States. While the full economic impact is not yet known, people who live and work in New York City and Fairfield County, two of the harder hit places in the tri-state area, have already begun to feel the effects with respect to job loss and loss of income. For those who have an alimony and/or child support obligation pursuant to a Connecticut Divorce Judgment, the natural question after losing a job, whether due to COVID-19 or otherwise, is: what impact will the job loss or reduction of income have on my obligation to pay alimony and/or child support?
Can I Modify My Alimony and/or Child Support Obligation if I Become Unemployed Because of COVID-19?
Connecticut General Statutes Section 46b-86(a) provides that alimony and/or child support obligations may be modified. Alimony may be modified “[u]nless and to the extent that the decree precludes modification.” So, unless your Divorce Agreement or Court Decision states that alimony is non-modifiable, you have the option of modifying your alimony obligation based on the loss of your employment.
In order to obtain a Court Order modifying alimony and/or child support, the party seeking the modification must prove that there has been a substantial change in circumstances. In determining whether there has been a substantial change in circumstances, a Court will compare the circumstances at the time of the last Court Order with the circumstances at the time that a party seeks a modification of that Order. Typically, a job loss in and of itself is considered to be a substantial change in circumstances. In these unprecedented times, many people are losing their jobs as a result of the economic impact of the pandemic; so, you will not be the only person making claims in a Connecticut Court that you lost your job due to COVID-19.
I Lost My Job Due to COVID-19, but I Am Receiving a Severance: Can I Still Modify?
If you receive severance payments for a period of time that are the same or substantially the same as the income received when employed, the receipt of that severance income means, in the eyes of the Court, that there has not yet been a substantial change in circumstances.
When Can I File a Motion to Modify?
Every situation is unique, but generally the appropriate time to file such a Motion is toward the end of the severance payment term, assuming that you have not found a job before that time or, if you have found a job, your income at your new employment is now substantially less.
Is My Ability to File a Motion to Modify in Court Affected by COVID-19?
Under Connecticut law, a person requesting a modification may request that the Court Order relief retroactive to the date that the Motion to Modify was personally served on the other party. The party filing the Motion to Modify must file the Motion with the Court, have a Hearing date assigned by the Court Clerk’s office, and then serve the Motion to Modify on the opposing party. The earliest date that the moving party can request for retroactivity purposes is the date of personal service on the opposing party.
As of the time of writing this article, the Courts in Connecticut are open with limited hours and are only permitting individuals to enter the building under certain circumstances, none of which include filing a Motion to Modify in person. Notwithstanding that fact, Motions may still be filed by mail or by e-filing; so, you can still file the Motion to Modify with the Court. Once you receive the assigned Hearing date from the Clerk’s office, the Motion can be served on the other party.
Because of the pandemic and resulting effects on the Connecticut Court system, the timing for receiving assigned Hearing dates on Motions to Modify that have been filed has been delayed, meaning that the date of personal service on the other party will also likely be delayed. Family lawyers in Connecticut have been seeking clarification from the Judicial Branch regarding whether temporary changes to the rules will be permitted so that there is some other standard for retroactivity, other than personal service on the opposing party, in order to address this issue. As of the time of writing this article, there has not yet been a solution presented to this problem, but the fact that there are discussions about this issue signifies that there is no harm in filing a Motion to Modify now (if appropriate to do so) and, in fact, there may be a benefit to doing so in order to preserve retroactivity.
What Documentation Should I Gather Regarding My Modification Case?
You can expect that one of the inquiries at the hearing on your Motion will be what you have done and what you currently are doing to find employment. A Court will want to know that you have made and are making bona fide efforts to obtain employment at or near the level of your prior employment. Be sure to save all of your written communications regarding your employment search, as it could become evidence at a Hearing on a Motion to Modify. It is not difficult to imagine that those seeking jobs as a result of job loss due to COVID-19 will have difficulty finding new employment in the current economic climate and that they will encounter increased competition for positions, which will be useful information to present to a Court as part of a Hearing on a Motion to Modify.
I Was Furloughed as a Result of COVID-19: Can I Modify Alimony and/or Child Support?
Some people living in Fairfield County are not permanently losing their employment as a result of COVID-19, but may suffer a temporary loss of employment or a reduction in income. Even if this change of financial circumstances is temporary, it may be appropriate to file a Motion to Modify in order to seek retroactive modification of alimony and/or child support for the time period during which the payor (or recipient, as the case may be) was receiving less income.
Can I Stop Paying or Reduce My Alimony and/or Child Support Payments if I Lose My Job or am Furloughed?
A Court Order remains in place unless and until it is modified by a Court or by agreement between the parties. Ceasing or reducing alimony and/or child support payments without the Court’s prior permission may be viewed by the Court as “self-help.” Additionally, a payor who ceases or reduces alimony and/or child support payments may be subject to a Motion for Contempt. If you have lost your job or have been furloughed, it is a good idea to file a Motion to Modify now in order to preserve retroactivity. While the Motion is pending, it may be possible to work out an agreement as to how alimony and/or child support payments may be modified.
Could I be Held in Contempt if I Stop Making or Reduce my Alimony and/or Child Support Payments?
In order to prove contempt, the moving party must demonstrate to the Court, by clear and convincing evidence, that there has been a willful violation of a clear and unambiguous Court Order. Divorce Agreements and Court Decisions are Court Orders. The question of whether an Order is clear and unambiguous is for the Judge to decide. Assuming the Court Order is clear and unambiguous, the Judge will next decide if the cessation or reduction of alimony and/or child support was willful. In determining willfulness, a Court could look at why you lost your employment, what other sources of funds you had available to you to pay alimony, and what your job search efforts have been.
At Broder & Orland LLC, our attorneys have significant experience handling cases involving the modification of alimony and/or child support when a client has lost his or her employment. We can consult with clients to shed light on whether a potential alimony and/or child support modification case is viable. Losing your job can be one of the most stressful events in your life. Our attorneys at Broder & Orland LLC are available to discuss your options with you and can provide you with a plan going forward with respect to your alimony and/or child support obligation, which may include filing a Motion to Modify and negotiating and drafting an agreement with the other side. It is our goal to give you peace of mind during these difficult times.
This Week’s Blog by Lauren M. Healy
Can My Spouse Cut Me Off Financially if I File for Divorce?
The financial implications of filing for divorce can be scary and confusing. If your spouse has threatened to stop supporting you, or you do not have access to funds to pay your household bills on your own, you may be deterred from even starting a divorce action. There are ways for you to protect your family’s assets and to gain access to financial resources during your Connecticut divorce.
The State of Connecticut has Automatic Orders that are immediately implemented in each divorce case. These Automatic Orders are intended to keep financial circumstances status quo until the parties agree otherwise, or until there is a different court order. For example, the Automatic Orders do not allow a party to transfer, sell or encumber assets outside of the ordinary course of business. The Automatic Orders also require that certain insurance policies (homeowners, life insurance and medical insurance for example) continue to be maintained with the same benefits and beneficiaries as were in effect prior to filing.
The Automatic Orders will help protect your assets, and provide for certain expenses to be paid, but what happens to the family’s income and how are the other bills paid during the divorce?
Orders for Temporary Support
If you can, it is usually best, and often most cost effective, for you and your spouse to agree on where income will be deposited, how it will be divided and how the bills will be paid. It is very likely that with the assistance of counsel, you and your spouse can come to an agreement on these issues. If an Agreement is signed, it is submitted to the court for approval and then made a Court Order.
In situations where an Agreement cannot be reached, your attorney can file a Motion for Temporary Support, which asks the Court to issue financial orders regarding alimony, child support or contribution to household expenses.
Motions for Temporary Support can be filed immediately upon the commencement of your divorce action. These types of Motions are typically heard by the Court anywhere from a few weeks to a few months from when they are filed. At the Hearing, you and your spouse will each have the opportunity to present evidence about your family’s income, expenses, assets and financial priorities. The Judge will make the ultimate decision about how to resolve these issues.
Emergency or Ex Parte Motions
Occasionally, if the circumstances are extremely dire, your attorney may suggest filing a Motion with the Court on an emergency basis. It is possible, under certain limited circumstances, to get a temporary immediate Order from the court without a Hearing. Depending on the facts of your case, your counsel may do this “ex parte” which means without notice to your spouse. Your case will then be scheduled for a Hearing within a very short timeframe (typically two weeks or sooner) to decide if the emergency Orders should continue.
If you are contemplating filing for divorce, but you are concerned about being “cut off” from financial resources, we can help you. At Broder & Orland LLC, we can work with you to create a plan for securing support, negotiate and draft a temporary support Agreement, and if necessary, proceed with a Motion for financial support.
COVID-19 took over our lives, and, yet, we still need expert help—especially legal help. Read on for straight talk on frequently asked questions. Christopher J. DeMattie, Esq., of BRODER & ORLAND LLC.
Christopher J. DeMattie, of the Broder & Orland LLC, law office in Greenwich and Westport, a divorce and family law practice, said the firm remains committed to working diligently by whatever means necessary.
We continue to work effortlessly to protect our clients and to advance their case during these unusual times, while taking all recommended precautions.
Our lawyers are working from remote locations, in most cases at home.
Our firm adapted to remote capabilities years ago and have since emphasized a paperless practice. While we miss the collegiality of being in one place with our team, we are in regular contact through email, texting, and telephone.
We are conducting virtual consultations and meetings with clients and colleagues. We are confident our clients and practice will weather this unprecedented situation and expect it will create a wave of business once the current situation resolves itself, as it will require review and adjustments for parenting and financial matters.
It is a different dynamic but thanks to technology, it is running very smoothly.
This Week’s Blog by Christopher J. DeMattie.
Are Courts in Connecticut Open?
Yes, the Courts in Connecticut are still open as of March 17, 2020. However, until at least March 27, 2020, the Courts will schedule and hear only those matters identified as “Priority 1 Business Functions.” Specific to Family Law, “Priority 1 Business Functions” are currently limited to: (1) Family Orders of Relief from Abuse, (2) Ex-Parte Motions, and (3) Emergency Ex-Parte Orders of Temporary Custody. This means that if you have a Trial, Hearing, Status Conference, Short Calendar Event, Uncontested Hearing, or Pretrial scheduled between now and March 27, 2020, it will be canceled and rescheduled to a different date. You should talk to your attorney about strategies to try and have your matter scheduled sooner rather than later when Court resumes normal functions, if possible. If you have a matter that falls into the “Priority 1 Business Functions” category, should you talk to your attorney immediately to develop a strategy to file your matter and get into Court on an expedited basis since Court remains open for those serious matters.
Can I still file for Divorce during the COVID-19 Quarantine?
Yes. Since the Courts in Connecticut are still open as of March 17, 2020, this means you can still file a divorce action. Because most Family Law matters in Connecticut are eligible for electronic filing, you or your attorney does not even have to appear at the Courthouse to file your action. In other words, everything can be done remotely to start your case.
If you are ready to file for divorce, there are some benefits to filing now, as opposed to waiting until things return to “normal.” First, the typical divorce action currently takes between 6-18 months to complete, but this estimated timeframe is likely to be extended due to the disruption being caused by COVID-19. Second, except for limited circumstances, once you file for divorce, your divorce cannot typically be finalized until the Case Management Date, which is approximately 90-100 days after you first file for divorce. During the first 90-100 days of a divorce case, unless you need to file pendente lite Motions to address temporary financial or parenting issues while the case is pending, your case is will likely be uneventful. Typically, during this time discovery requests are exchanged, Financial Affidavits are drafted, and Parenting Plans are negotiated. The good news is that those actions often do not require face time and are done remotely. So even while you cannot go to Court at this time, you can still work on moving your divorce matter forward. Further, it may even be easier to gather discovery materials or work on your Financial Affidavit from home as opposed to attending to these sensitive matters while at the office or traveling.
Finally, based on the early reports out of China, it appears there is an increase in divorce filings once the quarantine was lifted. If true, this may simply be people deferring filing due to the quarantine or people filing due to being quarantined together! Regardless of the reason, Courts in Connecticut will likely be busier than ever once they return to normal operations. Thus, only if you are ready to file for divorce, now may be the time to start the process.
Can I still file Motions in my pending Divorce Matter during the COVID-19 Quarantine?
Yes. Since the Courts in Connecticut are still open as of March 17, 2020, this means you can still file any Motions in your pending divorce action. Except for those matters which fall into the “Priority 1 Business Functions” category, no one can tell you with absolute certainty when your Motions will be heard by the Court. However, depending on the specific facts of your case, there may still be a benefit to filing those Motions now as opposed to waiting.
If you are experiencing a substantial change in financial circumstances due to the economic impact of COVID-19, whether it be a loss of employment, a reduction in commission income, or a loss of revenue if you are a business owner, you will want to consult an attorney to discuss your options. Although a substantial change in financial circumstances will not likely warrant the filing of an Ex-Parte Motion, if appropriate, you may want to file a regular Motion for Modification now. The benefit to filing now and then having your spouse or ex-spouse served with the Motion, is that the Court then has the discretion to modify your financial orders retroactively to the date of service. This enables you to preserve your claim even while the Court is not currently scheduling financial Motions.
Also, keep in mind that unless and until an Order is modified by the Court, the existing Order remains in place and you must still follow your obligations. In other words, even if you have experienced a substantial change in circumstances, you cannot engage in self-help and voluntarily stop paying your support obligations. If you fail to do so, your spouse or ex-spouse may file a Motion for Contempt against you. Simply filing a Motion for Modification does not insulate you from a Motion for Contempt, however depending on the reasons for filing the Modification it could mitigate the impact of the Motion for Contempt. Further, as mentioned above, filing and serving the Motion for Modification provides the Court with discretion to enter retroactive orders. Since every Order and case are different, you will want to consult with an attorney to discuss your specific options.
Further, since the already busy Court system will inevitably become busier once it resumes normal operations, it may make sense to “get in line now” as opposed to waiting until things return to “normal.” Before the foregoing measures being enacted by the Court, it would typically take 3-4 weeks from the time you filed a non-emergency Motion until it was scheduled on the Short Calendar. No one knows for sure how long the wait will be once Court resumes normal operations, but it will likely be much longer than the typical 3-4 week wait.
I am worried about my children’s safety during the COVID-19 pandemic, can I keep them from my ex-spouse?
It depends. Every Parenting Plan is different, and your specific circumstances are likely different as well. Similarly, to Financial Orders, Orders related to Parenting Time and Custody must be followed unless and until the same are modified by the Court or you and your child’s other parent reach an agreement. If you have concerns about your child’s safety, generally it is good practice to first reach out to the other parent to discuss your concerns and see if you can reach an agreement that is in your child’s best interest. If you cannot agree, you should consult with your attorney to discuss your options. Further, you should consult with your child’s doctor and follow the advice of the doctor as well as the emergency declarations issued by the government. Further, if you share joint legal custody with your child’s other parent, you likely have an obligation to keep the other parent informed as to your child’s health status as well as the scheduling of any medical appointments or if you believe the situation warrants a visit to the emergency room.
Your attorney cannot advise you to disregard Court Orders, but if you have genuine concerns and your child’s other parent is not in agreement with you on how to handle the situation, you should also talk to your attorney about the consequences that a Court may impose if you fail to follow Court Orders. Also, if you and your child’s other parent reach an agreement, it is advisable to memorialize that agreement in writing (text or email would qualify) to try and protect yourself if the other parent later changes his or her mind.
Finally, if your child’s other parent desires to travel with your child during the pandemic and you do not agree, you should consult with your attorney immediately about filing an emergency Motion if you genuinely believe your child’s health or safety is at issue. As previously stated, ex-parte or emergency parenting Motions fall within the “Priority 1 Business Functions” category that the Court is still scheduling.
How does my child’s school being closed impact my Parenting Plan?
As everyone is navigating this new world with schools being closed for an indefinite period and many parents working remotely from home, your regular Parenting Plan is likely being affected. If possible, the first thing you should do is reach out to your child’s other parent to try and coordinate your new schedules to see if you can reach an agreement as to what is best for your children. If you cannot agree, or if you have questions as to interpreting your Parenting Plan you should contact an attorney for advice. Further, if your Parenting Plan is vague and/or no longer applicable (i.e. “The Mother shall have Parenting Time from after school on Wednesday until drop off at school on Friday.”) you may want to consult with your attorney to discuss various options to address Parenting Time during this time of uncertainly because an experienced Family Law attorney should be able to provide you with alternatives that have worked for other families.
Broder & Orland LLC, the largest matrimonial and family law firm in Connecticut with offices in Westport and Greenwich, remains committed to working diligently by whatever means are necessary to protect you and to advance your case during these unusual times, while also taking all recommended precautions. We are able to perform our services remotely and are able to host telephonic or virtual consultations, meetings, or mediations. If you have any questions about the impact of COVID-19 or the Coronavirus on your pending or potential divorce action, do not hesitate to call one of our experienced Family Law attorneys.
This Week’s Blog by Carole T. Orland.
“Let’s Mediate and Save Money on Lawyers!”
If you’re reading this blog and are a potential divorce candidate, you may be familiar with this refrain. Usually, it is said in a context that also includes such statements as, “Our case is so simple.” Or, “We can work it out.” Maybe, “I will be fair with you, not to worry.” Often, “If lawyers get involved it will cost a fortune and there will be less for you.” Or, “Mediation is more civil than litigation.”
Are any of these statements valid? Perhaps. But not always. It really depends on the parties and the situation at hand. At our firm, we provide mediation services, as well as litigation alternatives. The key is to screen the case at the outset to determine who and what case is appropriate for mediation.
Mediation requires a great deal of trust between the parties. That may seem odd, since you are getting divorced; however, there are situations where there is still a modicum of trust, despite the decision to go separate ways. If one party has cheated on the other, or has not been 100% transparent about finances, any trust that may have existed has likely eroded. Mediation can be difficult if the parties are in disparate positions with regard to understanding financial matters. For example, if your wife has an MBA and has been involved in complex financial transactions as part of her profession, and you are a person without similar financial acumen, the playing field in mediation will not be level. Or, if your husband is controlling and easy to anger, and you are more passive, the dynamics in mediation will likely follow that pattern making it more difficult to achieve a fair resolution.
If mediation still seems right for you, it will be important to work diligently to attain transparency and to move things along at a pace that doesn’t prejudice either party. Too many cases languish in mediation, without discovery, and prior to filing for divorce, only to fizzle out. It could mean spending weeks and months without any final result. It could also result in the expenditure of significant funds only to have to start the litigation process when the case is not resolved in mediation.
You should also be aware of adjunct costs often associated with mediation. Many people who are going through divorce mediation find it desirable or necessary to retain a coach in order to understand the negotiations, to provide context as to possible outcomes, and to assist with strategy. Even if you don’t employ a coach, at the end you will likely want an experienced divorce attorney to act as review counsel. This attorney will provide a critique of the Separation Agreement, based on the Financial Affidavits, any valuation analyses, appraisals, pleadings, and so forth. It will likely take considerable time for review counsel to provide you with an assessment of your potential settlement.
Children’s issues may also be the subject of mediation. A skilled mediator may be able to help you work though these issues to arrive at a Parenting Plan that will be incorporated into your divorce Judgment. If you and your spouse are fairly close on a Parenting Plan, mediation might assist you with ironing out some final issues. If you are fighting each other about custody, it will likely be hard to resolve your differences through mediation.
Bear in mind, litigation is not a dirty word! It can be a very reasonable alternative to mediation, where some of the issues described above are present. Litigation can be done in an amicable manner, assuming both parties and counsel are willing to do so. It can provide an efficient process for obtaining information and for ensuring that each party’s voice is heard. It can also provide transparency and ensure a level playing field. It does not necessarily result in stratospheric fees if everyone is committed to proceeding expeditiously. It means that one lawyer will be your advocate, coach and review counsel.
Litigation may also present an opportunity for mediation! Once discovery is complete, if there are still issues that prevent your case from being resolved, it can be most effective to hire a mediator to get to the end. In this scenario, the parties and their attorneys may spend a day with an experienced mediator who may be a former family law judge, an elder statesman of the bar, or a very experienced practicing divorce attorney. Most cases settle after mediation of this type.
At Broder & Orland LLC, we provide divorce mediation services as well as litigation alternatives. We are able to counsel you as to whether or not mediation is right for you and if so what type of mediation will ensure the best process and the optimal result.
This Week’s Blog by Nicole M. DiGiose.
Will my Case go to Trial?
Divorce trials are rare in Connecticut. However, in the event the parties are unable to reach a settlement as to either or both parenting and financial issues, the disputed issues will be submitted to the Court for determination after a trial.
When will my Case be Ready for Trial?
Typically, a case will be ready for trial after all discovery has been exchanged and reviewed, depositions have been completed, and, if applicable, any and all experts have completed their evaluations and reports.
How do I Prepare for Trial?
Prior to trial, you will meet with your attorney to go over your testimony and how to testify. It is important that you provide a marital history in advance of trial so that your attorney has all of the relevant factual information involving your marriage and can prepare an outline of important topics to be covered. Although your attorney will have reviewed all discovery and depositions in advance, it is important for you to review those documents as well.
How Do I Testify?
When you are called as a witness, you will take the witness stand and be sworn in by the Clerk. This involves an affirmative response that you will tell the truth while testifying. You will then be asked questions by both attorneys. It is imperative that you listen to the question being asked of you and that you answer only that question. Unresponsive answers may be stricken from the record. It is also important that you wait until the question is completed. The Court Monitor takes down everything that is said during a trial, so no one should talk over another person. If you hear the word “objection,” you should wait to answer until the Judge has made his or her ruling on the objection.
Do any Documents need to be Submitted Prior to Trial?
Yes. Ten days before a trial, the following documents must be submitted to the Court: Proposed Orders, which may include a Proposed Parenting Plan if custody and parenting issues have not been resolved, a Financial Affidavit, a list of any outstanding Motions to be heard, as well as a list of potential exhibits and witnesses. If child support is at issue, a Child Support Guidelines Worksheet must also be submitted.
Who Will Testify at Trial?
Both parties will testify. If there are outstanding parenting issues and a Guardian Ad Litem has been appointed, he or she will testify as to his or her recommendation and the basis thereof. In some cases, there may be additional third-party witnesses, such as expert witnesses or fact witnesses. Common examples of expert witnesses include business evaluators, custody evaluators, and real estate appraisers.
What Actually Happens at Trial?
The Plaintiff will go first. He or she will call witnesses to testify and introduce relevant exhibits during the examination of each witness. The Defendant will have the opportunity to cross-examine the Plaintiff’s witnesses. Once the Plaintiff has completed its case-in-chief, the Defendant will present its case by following the same process as the Plaintiff. The Guardian Ad Litem, if applicable, typically testify after both sides have completed their cases-in-chief.
When Will I Receive a Decision?
Judges in Connecticut have 120 days to render their decision. The Judge may issue his or her decision before the expiration of the 120-day timeframe, or may ask for an extension, if necessary.
Is my Trial Public?
Generally, yes. Any member of the public may sit in the gallery during a trial. On rare occasions, the Courtroom may be closed.
Can I Order a Transcript of My Divorce Proceedings?
Yes. The Court Monitor takes down everything that is said during a trial.
In the event your case goes to trial, the attorneys at Broder & Orland LLC will ensure that your case is ready and that you are absolutely prepared. While testifying can be stressful, we make sure you are as comfortable as possible during your trial.
This Week’s Blog by Jaime S. Dursht.
WHAT DOES DISSIPATION OF MARITAL ASSETS MEAN IN A CONNECTICUT DIVORCE?
One spouse’s reckless, out-of-control and wasteful spending may be a dissipation of assets resulting in the other spouse receiving a credit in the final allocation of the marital estate. Connecticut courts have the statutory authority under Connecticut General Statutes § 46b-81 to consider a spouse’s dissipation of marital assets when determining the nature and value of property to be assigned to each spouse. Finan v. Finan, 949 A.2d 468 (2008). Not all types of spending qualify as a dissipation of marital assets. For example, the sudden repayment of a large loan to parents without the knowledge of the other spouse may or may not be a dissipation of marital assets, depending on the circumstances.
WHAT ARE EXAMPLES OF A DISSIPATION OF ASSETS IN A CONNECTICUT DIVORCE?
Not all forms of excessive spending are a dissipation of marital assets. “[A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.” Gersham v. Gersham, 286 Conn. 341, 346 (2008). Gambling, spending on a paramour, concealment or transfer of an asset to another for little or no consideration are traditional examples of the type of financial misconduct required to obtain a credit. “Even a sharp disagreement between spouses over the wisdom of an expenditure, without more, does not render that expenditure a dissipation of marital assets. … The test is whether the asset was actually wasted or misused.” Id.
DOES THE MISCONDUCT HAVE TO OCCUR DURING THE PENDENCY OF A CONNECTICUT DIVORCE?
There is a timing requirement for the spending to have occurred, although not limited to the pendency of the divorce case. Just because the expenditures occurred prior to filing the action does not take it out of consideration. “[I]n order for a transaction to constitute dissipation of marital assets for the purposes of equitable distribution … it must occur either (1) in contemplation of divorce or separation; or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.” Finan v. Finan, 949 A.2d 468 (2008). Thus, financial misconduct that occurred pre-separation may properly be considered as long as the marriage was undergoing irretrievable breakdown.
HOW DOES A PARTY ASSERT A CLAIM OF DISSIPATION OF ASSETS IN A CONNECTICUT DIVORCE?
In addition to claiming a credit for the dissipation of assets in the final allocation of the marital estate pursuant to C.G.S. 46b-81, a party may also assert a claim of dissipation during the pendency of the action as a violation of Automatic Orders pursuant to Connecticut Practice Book Sec. 25-5. Although the particular misconduct may not be financially remedied with a credit until the end of the divorce action, filing a motion for contempt during the action may serve to preserve the claim and effectively enjoin the conduct. See, for example, Greenan v. Greenan where a spouse violated automatic orders when he “mortgaged assets, took out loans and converted assets, all the while exercising little restraint over his spending and acting with a sense of entitlement.” Greenan v. Greenan, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST FA-09-4015784-S (August 30, 2012, Calmar, J.) Similarly, see the Court’s orders in Barr v. Barr: “In view of the defendant’s dissipation of more than $109,000 in marital assets in violation of the automatic orders, the court finds that such a remedial punishment is appropriate. Accordingly, the defendant shall pay $50,200 (representing 50 percent of $109,000 …) to the plaintiff from his equitable distribution share of the marital assets upon entry of the dissolution decree.” Barr v. Barr, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST FA13-4025428-S (May 28, 2015, Heller, J.).
BRODER & ORLAND LLC, with offices in Westport and Greenwich, concentrates in divorce and family law. Our attorneys are extremely knowledgeable about financial issues faced by individuals in a divorce and are very experienced with seeking the appropriate relief for, as well as defending a claim of, a dissipation of marital assets.