Do I Have to Go to Court?

This Week’s Blog by Christopher J. DeMattie

  • Public Act 17-47 excuses parties from having to go to Court to have a temporary agreement approved by the Judge
  • Connecticut General Statutes § 46b-66 requires the Judge to inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances
  • An Affidavit in Lieu Appearing may be appropriate in some circumstances and if appropriate, obviates the need to go to Court
  • You run the risk of sanctions, incarceration, and/or an adverse ruling against you, if you fail to appear at Court for a contested matter

At Broder & Orland LLC, our clients often ask us if they have to go to Court.  The answer is usually, “It depends.”  If the matter is uncontested – i.e. a signed written agreement, then you may not have to appear at Court. If the matter is contested – i.e. a trial or a hearing, you must appear at Court, and failure to do so could result in sanctions, incarceration and/or an adverse ruling against you.

If you and your (ex) spouse reach a temporary agreement on a pending issue, you no longer have to appear at Court to have your agreement approved by the Judge.  On October 1, 2017, our Legislature enacted Public Act 17-47 and as a result, the Judicial Branch created Form JD-FM-263.  The form states:

If you have reached a temporary agreement on any pending motions and you would like to have your agreement approved without coming to court, submit this form along with a signed, written agreement, current appearances for each party if they are not already on file, and any required supporting documents to the clerk. If the agreement contains a child support order and either party or a child is receiving IV-D services, you must have the Assistant Attorney General sign off on your agreement. This process is not for continuances, temporary restraining orders or Family Support Magistrate matters. For an agreement on a continuance, use the Motion of for Continuance (form JD-CV-21). For an agreement on a temporary restraining order, you must come to court on the hearing date.

Thus, if you follow the provisions of the Form, you and your (ex) spouse no longer have to appear at Court to have your temporary agreement, whether it relates to custody, alimony, child support, or discovery approved by the Judge.

If you and your (ex) spouse settle your divorce, generally you must appear at Court, however there are ways to avoid going to Court.  Connecticut General Statutes § 46b-66 states in pertinent part:

…in any case under this chapter where the parties have submitted to the court a final agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances.

Typically the Court’s inquiry is done by having the attorneys or the Judge canvass you and your (ex) spouse.  The canvass consists of you and your (ex) spouse being questioned about the agreement so that the Judge can determine that: (a) the agreement is fair and equitable, (b) that the agreement in the best interest of the child(ren), and (c) you and your (ex) spouse understand the terms of the agreement.

However, if you or your (ex) spouse are unavailable to appear at Court, an Affidavit in Lieu of Appearing could be submitted. The Affidavit typically consists of affirmative statements that you would swear to under oath. The statements would mirror the questions that you would be asked by your Attorney or the Judge in Court.  This way, the Judge would be able to satisfy the requirements of Connecticut General Statutes § 46b-66.

If your matter is contested, it means that you are scheduled for either a hearing or trial.  In contested matters, you must appear at Court, otherwise you could be sanctioned, incarcerated, or simply have the matter decided without your input.  It is never a good idea to fail to appear at Court if your matter is contested.

Broder & Orland LLC, with offices in Westport and Greenwich, Connecticut, concentrates specifically on the areas of family law, matrimonial law and divorce. In addition to being highly experienced lawyers with proven results, our hallmark is the attention we give to each of our clients. Additionally, whether a case requires aggressive litigation or a mediated solution, we always exhibit an abiding compassion for the people we represent and their families, recognizing that our mission is to assist them through a very difficult, life changing event.