Author: Broder & Orland LLC

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What Effect Does COVID-19 Have on My Connecticut Family Law Appeal?

The COVID-19 pandemic has had a severe impact on daily functioning for Fairfield County, and the functioning of the Connecticut Court system is no exception.  As of the time of writing this article, only selected courthouses in Connecticut are open with limited hours and restrictions on which individuals are permitted to enter the buildings that are open.  Family law litigants, including those in Westport, Greenwich, and Stamford, with appellate issues naturally have questions about how the current restrictions on Court operations due to COVID-19 affect their appeal.  

Can I Still File an Appeal of My Connecticut Family Law Case?

Yes.  The initial paperwork required to file an appeal can be filed electronically; so, the restrictions on physical access to the courthouses do not prohibit a party from filing an appeal of a final judgment in a Connecticut family law case.   

Are Supreme and Appellate Court Deadlines Still in Effect During the Pandemic?

On March 20, 2020, the Connecticut Supreme and Appellate Courts issued a notice stating that all requirements for Supreme and Appellate Court filings would be suspended until further notice.  As of the date of this article, this notice remains in effect.  Simply because these deadlines are suspended, however, does not necessarily mean that it will benefit your case to wait to file certain documents.  You may have strategic reasons for wanting your appeal to move more quickly.  In such a situation, it may serve the interests of your case to file the document(s) in question so that when the Courts are fully operational, your case is in a position to move more quickly.  

My Preargument Conference was Cancelled—Will it be Rescheduled?

The Preargument Conference program was suspended through May 1, 2020, due to concerns regarding COVID-19.  On April 29, 2020, a notice was issued stating that any appeals that are eligible for a Preargument Conference, but were not yet scheduled for a Preargument Conference, will not have a Preargument Conference scheduled.  This notice also stated that any cases in which a Preargument Conference was scheduled and later canceled would not have a Preargument Conference rescheduled.  Any appeal filed after May 1, 2020, will be excluded from the Preargument Conference program until further notice.  An exception to the foregoing is that parties can agree to request a Preargument Conference by telephone if they believe it may be effective in generating settlement and withdrawal of the appeal.  

When Are Supreme and Appellate Court Briefs Due?

The notice issued on April 29, 2020, requests that, to the extent possible, briefs be filed by June 15, 2020, for any cases in which a Preargument Conference was scheduled and cancelled or which was eligible to be scheduled for a Preargument Conference.  For appeals filed after May 1, 2020, the Practice Book rules apply with respect to when the brief will be due, to the extent possible.  While deadlines remain suspended (see above), this notice clarifies that, to the extent possible, any litigants who are able to file their briefs should do so.  The Supreme and Appellate Courts are requesting that paper briefs not be filed at this time; so, the briefs and appendices should be filed electronically.  If you have questions regarding when a brief should be filed in your Connecticut family law appeal, you should consult with an appellate lawyer. 

Are the Connecticut Supreme and Appellate Courts Hearing Oral Argument During the Pandemic?

Oral arguments during the Appellate Court’s seventh term were postponed due to the COVID-19 pandemic.  Currently, the Supreme and Appellate Courts are hearing oral argument via videoconference for the first time.  Allowing for oral argument using videoconferencing was a significant step in continuing the operations of the Supreme and Appellate Courts during this unprecedented time so that appeals can continue to progress.  If parties and counsel agree, fully briefed appeals can be decided without oral argument.  The decision as to whether to waive oral argument should be made after considering the risks and benefits with Connecticut appellate counsel.  

Broder and Orland LLC provides appellate representation in family law cases, in addition to litigating family and divorce cases at the trial court level.  If you are contemplating an appeal and/or have questions regarding how your appeal may be affected by the current pandemic, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.    

By: Sarah E. Murray

Broder & Orland LLC

Should I settle or go to trial?

This is a question that most divorce litigants face during their case. The majority of clients early on express a desire to settle. It’s a rare person who would rather go through the pain, anguish and financial cost of a divorce trial if there were an opportunity for an amicable resolution. Experienced divorce attorneys know that virtually all cases should be settled. But sometimes there are circumstances that make that impossible.

Do Custody cases have to go to trial?

Because of the emotional aspect of contested custody cases, it is sometimes difficult to settle them short of trial. This is especially so when one spouse or the other has engaged in abuse, or when drugs or alcohol are involved. But even in cases with these issues, competent counsel will access support from appropriate professionals to assist with arriving at a workable plan that is in the best interests of the children. It’s not uncommon to find that once the layers are peeled back, a dispute isn’t so much about custody as it is about a realistic Parenting Plan. At the end of the day, most parents should want to control their destiny and that of their children, rather than having a judge dictate the terms to them.

Do cases involving complex financial matters require a trial?

When there are disputes about financial matters, such as valuations, alternative assets, compensation structures, and real estate appraisals, it is sometimes hard to resolve a case without trial. However, if both sides have engaged in reputable experts, often those experts can work to resolve the difference between them, clearing the way for a settlement. When at all possible, it is preferable to come to an agreement outside of court, rather than presenting complicated financial testimony to a judge who is hearing it for the first time and who is forced to weigh in on competing experts who have a high level acumen and familiarity with the issues. 

Is it important to choose a divorce attorney with trial experience even if you are hoping to settle your case?

There are unquestionably certain cases that will end up at trial. Sometimes it is a result of the personalities of the parties and the degree of vengeance between them. Other times, it is legitimate that a result that cannot be otherwise negotiated. Having a divorce attorney with considerable trial experience is important. This is so even if it is clear the case will likely not go to trial because an experienced trial attorney will be able to provide context for you about a likely result after trial compared to a reasonable settlement. Also, if opposing counsel and his/her client knows the other side is a successful trial attorney, it may provide motivation to forge an out-of -court settlement. 

How and when do you decide whether to settle or have your case tried by a judge?

This is a decision that is often fluid throughout the case as circumstances change. For example, you may initially be steadfast in your desire to settle the case, but your spouse fails to cooperate or becomes entrenched in a position that is untenable. On the other hand, you may initially think a trial is the only way to resolve your case, but as the case is litigated, you realize that there are ways to resolve it amicably. An experienced divorce attorney, who has both excellent negotiation and trial skills, will be able to counsel you on your decision. At the end of the day, it is up to the client to make the final decision.

How risky can a trial be?

 A recent decision after trial by our office resulted in a shock to our client’s ex-spouse. Unhappy with the existing joint custody, he initiated an action for sole custody and forced a trial that lasted for sixteen days. Not only was his Motion denied, but the Court ordered that our client have sole legal custody! That is a stark example of the risk of going to trial.

Contact Broder & Orland Today

With offices in Westport and Greenwich, our divorce lawyers are skilled negotiators who strive for settlement whenever possible, but are also experienced and successful trial attorneys who can excel at trial when the occasion arises. We regularly counsel our clients throughout their case on the choice of whether to settle or go to trial and our experience has most often led to very favorable results. Please contact us today to go over your case. 

CAN I GET DIVORCED ONLINE WITHOUT GOING TO COURT IN CONNECTICUT?

This Week’s Blog by Westport divorce lawyer Jaime S. Dursht

CAN I GET DIVORCED ONLINE WITHOUT GOING TO COURT IN CONNECTICUT?

Yes, the State of Connecticut Judicial Branch has announced that uncontested divorces will be permitted remotely, without the requirement of physical presence in court. This is significant given the current status of court closures because it means that if you have reached agreement with your spouse on the terms of your divorce, you will be able to proceed to judgment on the papers.

Are Divorce Separation Agreements Negotiated Remotely in Connecticut?

The majority of divorce settlements are negotiated remotely with the exchange of settlement correspondence followed by drafts of the divorce agreements (called Separation Agreements). If negotiation reaches impasse, there are alternate dispute resolution options that are available on a virtual basis. Proceedings that were held in conference rooms two months ago are now taking place over conference calls and virtual meeting space. Professional mediators are conducting sessions using Zoom for example, and attorneys continue to move their cases forward utilizing remote applications and tools that are no less effective from home computers.

What are the Uncontested Divorce Requirements in Connecticut?

The Judicial Branch filing system has been paperless since 2015 when it required the electronic filing of nearly all legal documents and pleadings that would otherwise have been filed in person at the courthouse clerks’ offices. To proceed with an uncontested divorce, a fully executed Separation Agreement and sworn Financial Affidavits must be e-filed with the court, and if applicable, Child Support Guidelines, an Affidavit Concerning Children, and Advisement of Rights. Until recently, the parties and counsel were required to personally appear before a judge for an uncontested hearing for approval and entry of the Separation Agreement as final orders of the court.

What is the Procedure for a Final Online Divorce in Connecticut?

The Judicial Branch has now made it possible to meet the legal requirements of an uncontested divorce online by requiring Affidavits to be filed (Affidavit in Support of Entry of Divorce Judgment, Plaintiff or Defendant) in lieu of in-person testimony, and a Request for Approval of Final Agreement Without Court Appearance.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. Our attorneys are extremely knowledgeable and prepared to conduct remote and/or virtual negotiation and settlements as well as final online uncontested divorce.

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.

Confidentiality Agreements and the Disclosure of Sensitive Business Records in a Divorce

           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.

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

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.

 

PARENTING PLAN MODIFICATIONS PROMPTED BY COVID-19

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.

You Lost Your Job Because of COVID-19—What Happens to Your Alimony and/or Child Support Obligation?

This Week’s Blog by Sarah E. Murray and Nicole M. DiGiose, Westport and Greenwich lawyers at Broder & Orland LLC.

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.