Category: Divorce

What Orders Are in Effect While a Connecticut Divorce Case is on Appeal?

This Week’s Blog by Sarah E. Murray.

Do the Trial Court’s Orders Take Effect Immediately Following a Divorce Trial?

Once an appeal is filed, the order(s) associated with the final judgment may be automatically stayed.  This means that until the appeal is finally concluded, the trial court cannot enforce the order(s) that are the subject of the appeal.  Generally speaking, orders regarding the division of assets and liabilities are stayed while a family law appeal is pending.  A common example of the automatic stay in practice in family cases occurs where the trial court orders that the marital home be sold.  Pursuant to the automatic stay rule, that order would not be enforced during the pendency of the appeal without the trial court terminating the stay of execution of that order, as discussed herein.

There are certain exceptions to the automatic stay rule that are permitted by the Practice Book in family cases.  For example, final orders concerning periodic alimony, child support, custody, and visitation are not automatically stayed pending an appeal.  If you are unhappy with the trial court’s alimony orders, those orders will go into effect during the pendency of your appeal unless you ask the court to impose a stay where there is not one automatically imposed by the court rules.

Is There Anything I Can Do to Have Divorce Orders that are Stayed Pending Appeal Take Immediate Effect?

Under Connecticut rules, the trial court can terminate the automatic stay of its orders on its own volition or after a motion is filed by either party.  A Motion to Terminate Stay is filed in the Appellate Court, but is decided by the trial court judge who decided the divorce case following a hearing.  In deciding a Motion to Terminate Stay, a trial court must consider the following factors: 1) the needs and interests of the parties and their children (and any other third parties affected by the orders); 2) the potential prejudice to either party, the children, or a third party affected by the orders if a stay is or is not imposed or if a stay is terminated; 3) the need to preserve the mosaic of the trial court’s orders; 4) the rights of the party taking the appeal to obtain effective relief in the event that his or her appeal is successful; 5) the effect of the Automatic Orders on any of the other factors; and 6) any other factors affecting the equities of the parties.  At the hearing on a Motion to Terminate Stay, both parties can present legal argument, and sometimes testimony, regarding whether the automatic stay should be terminated.

Can I Request that Orders that Go into Immediate Effect be Stayed While the Appeal is Pending?

It is also possible to file a Motion to impose a discretionary stay on any orders that go into immediate effect while an appeal is pending.  Such a Motion is filed in the trial court, unlike a Motion to Terminate Stay.  The trial court judge must consider the same factors recited above in deciding whether to impose a stay of the court’s orders or not.

What is My Remedy if I Do Not Agree with the Trial Court’s Decision Regarding a Request for Stay or to Terminate Stay?

The trial court is not necessarily the final arbiter of determining whether there should or should not be a stay of execution of its order.  A party aggrieved by orders regarding the termination of a stay can seek review of those orders by filing a Motion for Review with the Appellate Court.  The Appellate Court has the same power to review the issuance of a stay as it does the termination of one.

Broder and Orland LLC provides appellate representation in addition to litigating at the trial court level.  If you are contemplating an appeal, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.

A Secret from a Seasoned Divorce Attorney…

This Week’s Blog by Carole T. Orland.

What Might I Not Learn from my Friends About Divorce?

The dirty little secret in divorce cases is that the parameters of the likely outcome are relatively narrow. Connecticut is not a community property state where martial assets are automatically divided equally. However, the division of assets in most Connecticut settlements or Court awards will hover around 50%-50%, with some possible variation, such as 55%-45% or 60%-40%.

Likewise, child support is set by a formula contained in the Child Support Guidelines, which allow for some fairly standard deviations, and alimony typically is within a range that any reputable divorce attorney can estimate.

When it comes to children, most Parenting Plans are fairly routine and provide for a schedule that reflects the availability of each party to parent the children, unless a parent has some overriding behavioral issues including physical or emotional abuse, or substance or alcohol abuse.

 How Can I Learn More About the Parameters of a Likely Outcome in my Divorce?

When analyzing the asset division in your case, ask your attorney to provide you with a spreadsheet that will reflect the allocations of 50%-50%, 55%-45%, and 60%-40%. In many cases, the difference will not be substantial, relative to the size of the marital estate. In some cases, that difference will be neutralized by the fees and costs you will pay to pursue what you feel is a more favorable division. Have your attorney do a cost/benefit analysis.

With regard to child support, have your attorney run the Child Support Guidelines with probable scenarios. Again, you may see that the comparison is not all that significant.

Alimony can be a little trickier, especially since the enactment of the 2017 Tax Cuts and Jobs Act, which essentially eliminates the federal deduction for divorces after December 31, 2018. The rule of thumb and conventions previously employed to arrive at a reasonable alimony award are different now, but with sufficient data your attorney should be able to easily guide you as to a probable range.

Ask your attorney for input on your Parenting Plan. He or she should be able to advise you on a reasonable schedule and provide you with context as to what a Court would likely order.

How Can I Turn this Advice into an Advantage in my Divorce?

The real question is: why make divorce a war? Understandably, most people who are getting divorced harbor ill feelings about their spouse for various reasons. But being vengeful or vindictive likely will not significantly affect the bottom line. It will only ramp up emotions and drive up costs.

It is most important that you find an experienced divorce attorney who can educate you about the likely outcome. It will save you anguish, time, and money. And then hope that your spouse does the same!

At Broder & Orland LLC, we make a point of educating our divorce clients early on about the parameters of the likely outcome of their case. We draw on years of experience to provide context for settlements and trials. We also share documentation with our clients which quantify possible scenarios and comparisons so they can make well-informed decisions about their case.

What is Short Calendar?

This Week’s Blog by Nicole M. DiGiose.

What is the Short Calendar?

The Short Calendar is a mechanism for pending motions to be heard.  Once a motion has been filed in a case, it will appear on the Short Calendar.  Short Calendar occurs on a specific day each week, which will depend on the Judicial District in which your case has been filed, for example, Mondays in Stamford and Thursdays in Bridgeport.

 How Long does it Take for a Motion to Appear on the Short Calendar?

 Once a motion has been filed, it takes approximately two to three weeks to appear on the Short Calendar.

I Would like to Proceed with my Motion on Short Calendar – What Happens Next?

 The Short Calendar list becomes available approximately one to two weeks prior to the actual Short Calendar date.  Once the Short Calendar List becomes available, there is a period of time during which the available motions to be heard can be marked either “ready” or “off.”  In order to proceed with a motion at the Short Calendar, it must be marked “ready” during the marking period.  Once a motion has been marked “ready,” notice must then be sent to the other side.

 I am Unavailable or Unable to Proceed with my Motion on Short Calendar – What Happens Next?

 If you are unavailable or unable to proceed with your motion when it appears on the Short Calendar list, do not worry—motions may be reclaimed.  Reclaiming a motion will bring it back up to the next available Short Calendar.  Typically, motions may be reclaimed for a period of ninety days from their original file date before they are considered stale.

 What Happens at Short Calendar?

 When you first arrive at Short Calendar, your attorney will fill out a Memo to the Clerk.  This Memo indicates the status of the matter, such as: (a) whether you are requesting a continuance, (b) whether you have an agreement, or (c) whether you will need to proceed with a hearing.  Short Calendar days are usually the busiest days in the Courthouse and there will likely be some downtime while you are waiting to attend Family Relations or to have a hearing.

What is Family Relations?

 Family Relations is a free service offered by the Judicial Branch to assist the Court and parties in resolving disputes.  Prior to a contested matter being heard, the Judge will order counsel and the parties to attend Family Relations in order to attempt to resolve the dispute.  Meeting with Family Relations is generally mandatory.

 What Happens if Family Relations is Unsuccessful?

 Absent an agreement at Family Relations or otherwise, a Judge will need to conduct a full evidentiary hearing, after which he or she will render a decision, which could take up to one hundred and twenty days.

Will my Motion be Reached at Short Calendar?  What Happens if it is not Reached?

Short Calendar is reserved for “short” matters, typically those that will take about an hour or less.  If your matter is expected to take more than one hour, a judge will likely request that a date certain is obtained.  A date certain is a non-Short Calendar day on which the motion will be heard.

At Broder & Orland LLC, we attend Short Calendar throughout Connecticut, including Stamford, Bridgeport, Danbury, New Haven, and Hartford.  Our skilled attorneys will ensure that you are adequately prepared for when your motion appears on the Short Calendar.

What are the Top Five Mistakes to Avoid in a Connecticut Divorce?

This Week’s Blog by Jaime S. Dursht

What are the Top Five Mistakes to Avoid in a Connecticut Divorce?

The divorce process is fraught with emotion which can lead to making mistakes with long-term effects.  Each divorce is different, however, here are some common mistakes we divorce attorneys see.

Is it a Disadvantage not to Understand Your Financial Situation?

Yes.  It is important at the outset of the divorce process to have an understanding of your personal and household expenses, liabilities, income and what assets there are to divide.  This will help in setting reasonable expectations as to the outcome and will help in planning for financial security moving forward, which is the ultimate goal.  Take the time to gather information, review your bank and credit card statements, and if you are not financially literate, take steps to educate yourself with the basics.

Is it Better to Settle Early in the Process?

Not necessarily.   Divorce is a highly emotional time, and it is easy to become overwhelmed by acrimony and the desire to give in just to end the emotional trauma.  This could be a costly mistake, however, because depending on the assets involved, it may be well worth taking the time to discover and fully vet out the values of business interests, trusts, stock options and pension benefits which you may be entitled to share.

Is it Worth Arguing the Details?

Often the expense of the argument can exceed the value of what it is you are trying to achieve in the first place.  Try not to get caught up in minor wins and losses of the negotiation process when it comes to the smaller details of, for instance, the method of payment of co-pays at the pediatrician’s office or the percentage point split of reimbursement for extracurricular activities.   It may feel like an emotional triumph in the short term, but may not be worth the expense in the overall cost of the divorce.

Should I Seek the Advice of Family and Friends?

It is not a good idea to rely on the advice of family and friends regarding your own divorce however well-meaning it is intended to be.  Just because your friend got the house and lump sum alimony in her divorce does not mean that you will or even should.  Every divorce is different, and one person’s experience does not readily translate into another’s.

Is it Better to Act First and Ask Later?

No.  It is always better to check with your attorney before taking action, especially if you are in an angry or depressed frame of mind.  Acting on impulse, for example cutting your spouse off from credit card use or denying access to marital funds to limit spending, can have adverse legal consequences.  Not only do these particular actions risk a contempt finding by a court, but may end up costing you more just to rectify it in the end.

The attorneys at Broder & Orland LLC with offices in Westport and Greenwich, practice solely in matrimonial and family law, and have significant experience in counseling and developing an appropriate strategy to optimize the desired financial result.

Three Critical Issues to Address in a Prenuptial Agreement

This Week’s Blog by Andrew M. Eliot

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.  Notably, prenuptial agreements offer parties on opportunity to resolve financial issues in whatever manner they choose, rather than leaving such issues to be determined by the divorce laws of a particular state.  While the contents of prenuptial agreements can vary widely, there are certain issues that are commonly addressed in such agreements, three of which are discussed herein.

Property Distribution and Asset Classification: 

Prenuptial agreements typically define which types of assets will be subject to division in the event of divorce (i.e., which assets will constitute “Marital Property”), and which types of assets will necessarily be retained by one party to the exclusion of the other (i.e., which assets will constitute “Separate Property.”)  While there are many ways to classify assets, it is common for agreements to state that any assets brought into the marriage by a particular party shall constitute that person’s Separate Property, while any assets acquired during the marriage shall constitute Marital Property.  It also common for prenuptial agreements to provide that inheritances received by a party during the marriage shall constitute that person’s Separate Property.  In addition to classifying assets as Marital or Separate Property, many prenuptial agreements expressly set forth the manner in which Marital Property will be divided between the parties in the event of divorce.  For example, Marital Property might be divided equally, “equitably” (as determined at a later time under the laws of a particular state), or in some percentage allocation other than 50/50.

Many prenuptial agreements also address the disposition of assets that are acquired during the marriage with a combination of each party’s Separate Property and/or Marital Property, often referred to as “Mixed Property.”  Often prenuptial agreements will be drafted to ensure that both parties will recoup any Separate Property contributions he or she made to the acquisition of Mixed Property.

Alimony

Generally speaking, there are three options when it comes to addressing alimony in a prenuptial agreement.  One option is for the parties to agree to mutual “alimony waivers,” meaning that each party agrees that he or she will have no right to seek alimony from the other in the event of a divorce.  A second option is for each party to retain the right to seek alimony from the other, while leaving the issue open for determination at the time of divorce.  A third option is for parties to expressly agree upon specific alimony obligations that one party shall have to the other in the event of divorce, which may could include specific provisions regarding the duration and/or the amount of such alimony.

Estate Rights

In most jurisdictions, absent a written agreement to the contrary, each party to a marriage will be guaranteed by law to receive a certain minimum share of his or her spouse’s estate (the “elective share”) upon their spouse’s death.  For example, the “elective share” in Connecticut is comprised of the lifetime use of one-third of the value of all real and personal property owned by a party at the time of his or her death, after the payment of all debts and charges against that party’s estate.  However, a spouse’s right to an “elective share” can be waived in a prenuptial agreement, and it is not uncommon to see estate rights waivers in prenuptial agreements particularly where one or both parties have children from a prior relationship.

At Broder & Orland LLC we have extensive experience throughout Fairfield County and Connecticut negotiating and drafting prenuptial agreements that align with our clients’ circumstances.

 

What is the Middletown Regional Family Trial Docket?

This Week’s Blog by Chris DeMattie

The Connecticut Judicial Branch created a special docket in the Middlesex Judicial District to handle contested custody and visitation matters.  One judge presides over and manages the docket and per the Judicial Branch: “The goal is to handle contested cases involving children quickly and without interruption.” Cases are referred to the Regional Family Trial Docket by the presiding family judge in the local court if the referred case meets the program criteria: (a) child focused issue; (b) ready for trial; (c) family relations case study completed and not more than nine months old; and  (d) an attorney has been appointed for the children.

How does my Case end up in the Middletown Regional Family Trial Docket?

Since our local family courts are overcrowded and its resources are limited, it is difficult for the Court to devote significant time to just one case.  Thus, if you and your spouse are unable to resolve the children and financial issues in your case, you meet the foregoing program criteria, and if your case will likely take more than four (4) days of trial, it will likely to be referred to the Middletown Regional Family Trial Docket.  Recently, non-custody cases have also been referred to the Middletown Regional Family Trial Docket, if the presiding judge determines there is a compelling reason to do so, such complex financial issues which would require substantial court time.

How is the Middletown Regional Family Trial Docket similar to my local court?

The Middletown Regional Family Trial Docket applies the same law and procedures as your local court (e.g. Stamford, Bridgeport, New Haven).

The standing Trial Management Orders still apply.

If your case is eligible for e-filing, all pleadings, motions, and notices are filed the same way.  If your case is not eligible for e-filing, all filings are sent to both your local court and the Middletown Clerk.

The Courthouse opens at 9:00 a.m. and closes at 5:00 p.m.  There is typically a fifteen-minute mid morning and afternoon recess, as well as a lunch break from 1:00 p.m. to 2:00 p.m.

How is the Middletown Regional Family Trial Docket different from my local court?

First, you are assigned one Judge, and this Judge follows your case the entire time.  At your local court, generally you can be assigned a new Judge each court date, and you often do not know which Judge is assigned to your case until you appear at Court.

Second, except for rare circumstances, pendente lite motions are not heard until the time of trial.  At your local court, pendente lite motions are often heard while the case is pending and prior to trial.

Third, the timing of proceeding is much different.  At the Middletown Regional Family Trial Docket, since you case is assigned to one Judge, you are often the only matter scheduled on your court date.  This means that your case will often be called right at 9:30 a.m. and you will generally continue uninterrupted until approximately 4:45 p.m.  At your local court, it is rare for your case to be the only matter scheduled on your court date.  Unfortunately, too often there are multiple matters scheduled for the same date with the same Judge, and your case may not be heard.  Further, since your local court is not a special docket, there are usually multiple other matters scheduled such as status conferences, report backs, or stipulations.  Even though those matters are generally short, they still disrupt your proceeding because the Judge will delay and/or stop your hearing to address those matters.

In other words, it is rare to be interrupted at the Middletown Regional Family Trial Docket, while it is expected at your local court.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  As experienced divorce trial lawyers we have successfully tired many cases at the Middletown Regional Family Trial Docket.

Can I Appeal My Connecticut Family Law Case?

This Week’s Blog by Sarah E. Murray

The Judge Issued a Decision in My Connecticut Family Law Case: Can I Appeal?

In Connecticut, you have the right to appeal a final judgment entered by a trial court.  Common final judgments subject to appeal in family law cases are final judgments from orders dissolving the marriage, including permanent orders regarding alimony, child support, and custody, and orders regarding the division of assets.  Post-judgment decisions, such as those regarding the modification of alimony, child support, and custody, are also appealable.

When Must I File My Appeal?

The deadline for filing an appeal is no later than twenty days after the court issues notice of its decision.  It is not advisable to wait until the last day to appeal, as missing the deadline, even inadvertently, can be fatal to your appeal.  Therefore, you should seek the advice of an appellate practitioner who does family law appellate work immediately after receiving a decision from the trial court.

My Ex-Spouse is Filing an Appeal: Do I Need to Do Anything?

If you are not the person appealing the decision, you need to ensure that your rights are protected during the pendency of the appeal.  You should consult with an appellate lawyer in order to understand the basis for your former spouse’s appeal, any potential weaknesses in the judge’s decision that make the decision vulnerable to being overturned on appeal, and what your best arguments in defense are.

In What Court is an Appeal Decided?

Most appeals are heard by the Connecticut Appellate Court.  Rarely, a case will be reviewed by the Connecticut Supreme Court without being heard first by the Appellate Court.  Direct review of a trial court decision by the Connecticut Supreme Court can sometimes occur when there is an issue that has never been decided by Connecticut Appellate Court or the Connecticut Supreme Court, when there is conflicting law on a particular subject matter, or when there is a matter of public importance worthy of decision by the Connecticut Supreme Court.

Will the Appeal be Similar to the Trial?

The appellate process is very different from the trial process.  There is no new evidence or new testimony at the Appellate Court.  Each party submits thorough briefs outlining the facts of the case and the legal arguments in support of his or her positions.  The briefs are based on the record, consisting of the testimony from the trial court proceedings and any exhibits submitted to the trial court.  The appellant, i.e., the person taking the appeal, submits his or her brief first.  After the appellee submits his or her brief, the appellant has the opportunity to file a Reply Brief.  After all of the briefs are submitted, the Appellate Court will schedule a date for oral argument before a panel of Appellate judges.  At the Appellate Court, the panel typically consists of three judges.  At the Supreme Court, the panel consists of seven justices.   A party may attend oral argument, but is not required to do so.  After oral argument, the Appellate Court (or Supreme Court, as the case may be) will issue its Decision in writing.  The Decision is usually released several months after oral argument takes place.

How Long Will My Connecticut Appeal Take?

The appellate process in Connecticut can take several months, at least.  Some appeals can last over one year.

Can My Case Be Settled While an Appeal is Pending?

Your case can be settled at any time before the appeal is decided by the Appellate Court. Experienced litigators will explore potential avenues for settlement, if possible, in order to avoid the expense and time of an appeal.  In most family law cases, the Appellate Court will schedule the case for a Preargument Conference prior to briefs being due.  The Preargument Conference is a confidential settlement opportunity that takes place with an experienced judge who will meet with counsel for both parties and attempt to help the parties reach a settlement.  Whether you and your ex-spouse reach a settlement through the Preargument Conference or on your own, you can prepare a settlement agreement and the appeal can be withdrawn once the settlement is approved by the trial court.

Broder & Orland LLC provides appellate representation in addition to litigating at the trial court level.  If you are contemplating an appeal, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.

Top 10 Songs About Divorce

This Week’s Blog by Eric J. Broder

In a recent “water-cooler” office conversation, my office was discussing a number of songs that have been written about divorce. After an entertaining discussion, and in no particular order, here are a few of the more well-known songs and key lyrics, which certainly warrant a listen if you are going through the process. Warning: if you watch some of these videos on YouTube, make sure you have tissues nearby.

“We Just Disagree” by Dave Mason

So let’s leave it alone, ‘cause we can’t see eye to eye

There ain’t no good guys, there ain’t no bad guys

There’s only you and me and we just disagree

“Divorce Separation Blues” by The Avett Brothers

I’ve got the tough education

No celebration

Bad communication

Worse interpretation

Love deprivation

Pain allocation

Soul devastation

Cold desolation

Life complication

Resuscitation

Divorce separation blues

“D-I-V-O-R-C-E” by Tammy Wynette

And he thinks C-U-S-T-O-D-Y spells fun or play

“Broken Home” by Papa Roach

Can’t seem to fight these feelings

Caught in the middle of this

My wounds are not healing

Stuck in between my parents

Broken home! Broken home!

“Stay Together For The Kids” by Blink 182

Their anger hurts my ears

Been running strong for seven years

Rather than fix the problems

They never solve them

It makes no sense at all

I see them everyday

We get along, so why can’t they

“The Winner Takes it All” by Abba

The judges will decide

The likes of me abide

Spectators of the show

Always staying low

“Highway 20 Ride” by the Zac Brown Band

A day might come and you’ll realize that if you could see through my eyes

There was no other way to work it out

And a part of you might hate me

But son please don’t mistake me for a man that didn’t care at all

“Broken Home” by Five Seconds of Summer

I’m here alone inside of this broken home

Who’s right, who’s wrong

Who really cares?

The fault, the blame, the pain’s still there

I’m here alone inside of this broken home, this broken home.

“Every Other Weekend” Reba McEntire

Let’s go see dad

Same time in the same spot

Corner of the same old parking lot

Half the hugs and kisses there are always sad

We trade a couple words and looks

And kids again

Every other weekend

“Doesn’t Anybody Stay together Anymore” by Phil Collins

Well one says white and the other one black

It’s the same old story…Doesn’t anybody stay together anymore?

The attorneys at Broder & Orland LLC are experienced in handling divorce issues with understanding and sensitivity. We strive to meet all of our client’s individual needs.

Mediation in Divorce Cases

This Week’s Blog by Carole T. Orland

What is Mediation in the Context of Divorce?

Mediation can be a helpful approach in certain divorce cases. Typically the mediator is a lawyer who objectively tries to help resolve your case or specific issues within the case.

Are There Different Kinds of Divorce Mediations?

Yes.  Sometimes the parties hire a divorce mediator before either one has filed for divorce or shortly thereafter. Often the reason is that they are desirous of an amicable process and resolution at a moderate cost.

In other instances, the parties litigate the divorce with counsel and at some point decide they want assistance in settling the case, typically before trial. In this model, they usually hire a retired judge or elder statesman of the bar to conduct a session with the parties and counsel. This process can last anywhere from several hours to a full day.

On occasion, parties who are represented by counsel may hire a mediator near the beginning of the case to help resolve disputes as the case is litigated.

Is Mediation the Opposite of Litigation?

Not necessarily. As described above, mediation is often done in the context of litigation. Litigation is not necessarily a scary term and does not have to be contentious or nasty. It is often a conventional way of moving the divorce process along. In some instances it can be easier, quicker, and less expensive than mediation.

When Does Mediation Without Counsel Work Best?

If the parties have trust in each other and share the same objective and timetable for resolving their divorce, mediation can be a good approach. Of course, it is key to hire a reputable, experienced mediator. 

When Does Mediation Not Work Best?

Often, trust has eroded leading up to divorce. Also, sometimes the parties are on such unequal footing with regard to an understanding of financial issues, that the well informed party has an inherent advantage to the detriment of the other party. A common refrain is: “Let’s go to mediation. We will avoid lawyers and save money. We can work this out!” Sometimes, that obfuscates the underlying motive of trying to “put one over” on the other party. A failed mediation can be a real detriment to ultimately resolving the divorce as it can be a waste of time and money, as well as a disappointment when it is perceived that a spouse has not acted in good faith.

Is Mediation a Good Approach to Resolving the Part of the Case Relating to Child Custody and Parenting Time?

It can be. Good divorce lawyers make it their business to resolve custody and parenting issues at the beginning of the case. But an alternative might be that the parties resolve these issues on their own with a mediator. In that case, the mediator may be a mental health professional, such as a family therapist.

What Does it Mean to Have a Mediation Coach or Review Counsel?

Most of the time, parties who hire a mediator on their own will also separately hire lawyers to coach them as to divorce laws, strategy, and outcomes. They also may hire review counsel to review the Separation Agreement drafted by the mediator. The coach and review counsel are often the same person. This adds another layer to the process and additional cost. There is also the potential that review counsel’s opinions may de-rail the process at the end of mediation. It is important for parties to stress to their review counsel that they are not looking to re-write the proposed Separation Agreement, but rather looking for any potential minefields.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we are experienced in all forms of divorce mediation. We act as mediators for parties who have or do not have counsel, and attend mediation with our clients in many of the cases we litigate.

Issues Related to the Marital Residence During a Divorce

This Week’s Blog by Nicole M. DiGiose

Can I Change the Locks of the Marital Residence When I Start a Divorce?

Generally, no.  Once a dissolution of marriage action is commenced, the Automatic Orders go into effect. Paragraph B(8) of the Automatic Orders prohibits either party from denying the other party use of the parties’ current primary residence without an order of the Court, so long as the parties are living together on the date of service of the Automatic Orders.  However, parties are free to agree, or the Court may order that one party have exclusive possession of the marital residence during the pendency of the action.  In those situations, the locks may be changed.

Can the Marital Residence be Sold During a Divorce?

Yes, but only by agreement of the parties or an order of the Court.  Paragraph B(1) of the Automatic Orders prohibits either party from selling, transferring, exchanging, assigning, removing, or in any way disposing of any property during a dissolution of marriage action, except in the usual course of business, for usual and customary household expenses, or for reasonable attorney’s fees in connection with the dissolution of marriage action, absent a written agreement of the parties, or an order of the Court.

What if my Spouse doesn’t Agree to Selling the Marital Residence During a Divorce? 

Absent a written agreement of the parties, either party may petition the Court for relief from the Automatic Orders.  It is unusual, however, for the Court to order the house to be sold while the divorce is pending.  If the Court made such an order, it would likely order that the net proceeds of sale be held in escrow until the divorce is final, as the Court cannot assign assets until that time.

Does Voluntarily Vacating the Marital Residence Hurt my Chances of Retaining it in the Division of Property? 

No.  There is a difference between occupancy and ownership.  While one party may occupy the marital residence during the pendency of the divorce, it doesn’t necessarily mean that that party will be awarded it in the overall division of property.  At the time of entering a decree dissolving the parties’ marriage, the Court may assign to either party all or any part of the parties’ estate.  The Court may pass title to real property to either party or a third party, or may order the sale of such real property.  Pursuant to General Statutes Section 46b-81, the Court shall consider various factors in fixing the nature and value of the property, if any are to be assigned.  Such factors include, but are not limited to, the length of the marriage, the causes for the breakdown of the marriage, and the age, health, station, and occupation of the parties.  The Court shall also consider the estate, liabilities and needs of the parties and the opportunity for each party for future acquisition of capital assets and income.  Finally, the Court shall consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates.

Does Voluntarily Vacating the Marital Residence Impact the Care and Custody of Our Children?

No.  In fact, pursuant to Connecticut General Statutes Section 46b-56(c), in making and modifying orders related to the custody or care of minor children the Court shall consider various factors, one of which is the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provider the Court may consider favorably a parent who voluntarily leaves the child’s family home during the pendency of a divorce action in order to alleviate stress in the household.

At Broder & Orland LLC we have extensive experience addressing all issues that may arise with regard to the sale of the marital residences in the context of divorce in Fairfield County and Connecticut.  Our knowledgeable attorneys will counsel you to ensure that you are fully informed of your rights as they relate to your marital residence.