Category: Alimony

Common Myths With Respect to Alimony in Connecticut

This Week’s Blog by Sarah E. Murray

  • Myth #1: Alimony is awarded for half the length of the marriage
  • Myth #2: Lifetime alimony means that the alimony payor must pay alimony for the rest of his or her life
  • Myth #3: My spouse works full-time; therefore, I do not have to pay alimony

There is No Law in Connecticut Stating that Alimony is Awarded for Half the Length of the Marriage

At Broder & Orland LLC, we hear many of the “myths” about alimony that our Fairfield County divorce clients learn, oftentimes through their social circles or the Internet.  It is important for us to dispel these myths so that our clients have the correct information before making decisions about alimony in their cases.  In some cases, people are pleasantly surprised and relieved to learn that the myths about alimony are not true.

One of the most common myths divorce attorneys hear from clients from Greenwich to Fairfield is that the term of alimony is half of the length of the marriage.  It is important for clients to realize that there is no law in Connecticut that says that alimony should be awarded for half of the length of the marriage, or for any other length of time, for that matter.  Judges in Connecticut have discretion under our law to award alimony for the length of time that they deem appropriate based on the facts of the case and the statutory factors set forth in General Statutes Section 46b-82, including the ages of the parties, the parties’ amount and sources of income, their health, their employability, and the assets awarded to them pursuant to the divorce, amongst other factors.  The length of the parties’ marriage is one of the factors that judges can consider in determining the duration of the alimony term, but it is not the deciding factor.

In some cases, half the length of the marriage is the appropriate duration of alimony because of the specific facts of the particular case.  It is important to keep in mind, however, that there are no “rules” as to what the duration of alimony must be.  Fairfield County divorce attorneys advise clients as to what the reasonable ranges are for the duration of alimony in a particular case based on their experience in the field and review of trends in Connecticut case law.

In settlements, duration of alimony can be negotiated to achieve a client’s particular goal.  Sometimes, a client may be willing to receive a lower amount of alimony than what may be typical based on the facts of the case in exchange for receiving alimony over a longer period of time.  Others prefer a higher amount of alimony over a shorter period of time than the norm.

Lifetime Alimony is not as Daunting as it Sounds

In long term marriages, particularly where one spouse did not work or received significantly less income during the marriage, the breadwinner spouse will hear that he or she has exposure for paying “lifetime alimony.”  Not surprisingly, this is often an unwelcome proposition for the breadwinner spouse.  At Broder and Orland LLC, we have clients ask us whether that means that they must pay alimony until they die.  They also want to know whether lifetime alimony means that they cannot stop working.

Lifetime alimony in Connecticut means that the alimony payor must continue pay alimony for so long he or she is working and earning income.  Unlike defined alimony terms that end on a specific date, lifetime alimony is written in Court decisions or settlement agreements as ending “upon either party’s death or the alimony recipient’s remarriage.”  What this language means is that, if the alimony payor continues working until age seventy-five and earns income from that employment, he or she will still have an obligation to pay alimony.

Lifetime alimony does not, however, prevent a person from retiring at a reasonable retirement age, usually no earlier than age sixty-five, though every case is different.  Reasonable retirement age can be dependent on the industry in which the alimony payor works or his or her profession.  Once the alimony payor is ready to retire, assuming that he or she is retiring at a “normal” retirement age, he or she has the right to file a Motion to modify his or her alimony obligation, requesting that alimony should cease on the basis of retirement.  Unlike defined alimony terms, lifetime alimony awards put the onus on the alimony payor to go back to Court to request modification of the alimony award on the basis of retirement.  Lifetime alimony does not mean, however, that the alimony payor cannot retire.

Alimony is Sometimes Awarded to a Spouse Who Works Outside of the Home

Some people living in Greenwich and Stamford may be surprised to learn that sometimes alimony is warranted in cases where both parties are gainfully employed outside of the home.  In certain situations, typically where there is a marked income disparity between the parties, the spouse who earns more income will have to pay alimony to the other spouse for a period of time.  The amount of alimony in these types of cases is usually less than what the alimony payor would have had to pay had the other spouse not worked outside of the home.

Contact a Top Fairfield County Divorce Attorney to Discuss Connecticut Alimony Law

There is no substitute for seeking the advice of an experienced attorney with respect to what the law is in Connecticut regarding alimony.  At Broder & Orland LLC, we can dispel any myths people may have heard regarding the amount of alimony typically awarded or the length of time for which it is awarded.

 

You Lost Your Job-What Happens to Your Alimony Obligation?

This Week’s Blog by Sarah E. Murray

  • Connecticut General Statutes Section 46b-86(a) allows for modification of alimony under certain circumstances
  • The circumstances that resulted in your loss of employment and the terms of a severance agreement, if any, will have an impact
  • There are strategy considerations prior to filing a Motion to Modify
  • Consult with a top Fairfield County divorce attorney about your divorce decree so that you are armed with your options after losing your employment

Connecticut Law Allows Alimony Obligations to be Modified

At Broder & Orland LLC, we sometimes receive panicked phone calls from clients or former clients living in towns such as Greenwich, Stamford, and Westport who have lost their jobs.  The first question they ask is: what impact will the job loss have on their obligation to pay alimony?

Connecticut General Statutes Section 46b-86(a), the statute that addresses modification of support awards, provides that alimony obligations can 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.

Connecticut law provides that, in order for a person to obtain a Court Order modifying alimony, the party seeking the modification must prove that there has been a substantial change in circumstances.   Under Connecticut case law, 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 of alimony 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.  However, the reason that you lost your job and the terms of your severance will be critical in determining the timing and success of your Motion.

The Reason for Your Job Loss and the Terms of a Severance Agreement are Significant

In deciding a Motion to Modify alimony based on job loss, a Court will look at why the alimony payor is no longer employed.  In Connecticut, there is case law that states that loss of employment resulting from a party’s “voluntary culpable conduct” will not be considered a substantial change in circumstances warranting a modification of alimony.  What constitutes voluntary culpable conduct is a factual inquiry.  If you were fired for cause, such as for violating company policies or other inappropriate conduct, it likely will be a stumbling block for you to obtain a modification of your alimony obligation based on job loss.

If you were let go from your employment as part of normal layoffs, and not as a result of any of your voluntary culpable conduct, the next inquiry is whether your circumstances have changed financially as a result of your loss of employment.  Many of our clients want to file a Motion to Modify alimony immediately upon losing their jobs.  If, however, a person receives 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 been a substantial change in circumstances yet.

When Can I File a Motion to Modify?

It is natural, then, to ask: When can a Motion to Modify Alimony be filed after a job loss?  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.

If you have not found new employment and proceed with a Motion to Modify, 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.  If you can prove that have been doing so and have not found employment, a Court likely will look more favorably upon your Motion.  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.

Contact a Top Fairfield County Divorce Attorney after Losing Your Job

At Broder & Orland LLC, our attorneys have significant experience handling cases involving the modification of alimony when a client has lost his or her employment.  In fact, we have been involved in some of the seminal cases in Connecticut on alimony modification issues and can consult with clients to shed light on whether a potential alimony modification case is viable.  Losing your job can be one of the most stressful events in your life.  Meeting with an attorney to discuss your options can give you peace of mind and provide you with a plan going forward with respect to your alimony obligation.

How Does the New Tax Law Impact Alimony in Connecticut Divorce Cases?

This Week’s Blog by Carole T. Orland

  • The new tax law signed on 12/22/17 eliminates the alimony deduction for divorces and separation agreements signed after 12/31/18.
  • A payor cannot deduct alimony payments; a recipient will not pay tax on alimony.
  • The effect of the new law may mean greater tax impact for divorcing spouses and less available dollars for ex-spouse and children.
  • This law will affect alimony and unallocated alimony and child support payments.
  • Consult with counsel about finalizing your divorce by 12/31/18.

Should I make sure to get divorced in 2018, if I am going to pay or receive alimony? The short answer is that it would seem that way from what we can tell now. That is because on December 22, 2017, President Trump signed a sweeping tax overhaul bill, which includes an elimination of a 75 year-old tax deduction for alimony payments. This new measure will go into effect for divorces and separation agreements signed after December 31, 2018.

Currently, alimony is tax deductible to the payor and includible as taxable income to the recipient. The advantage of this is that it maximizes the available dollars to the recipient and makes it more attractive to the payor, by minimizing the overall tax effect. This paradigm has been instrumental in reaching out of court settlements in many cases as it typically will lower the tax bracket of the payor, shift dollars to the recipient who most often is in a substantially lower tax bracket, and reduce the amount of taxes that is paid to the federal government.

Additionally, in Connecticut divorces, we often see what’s known as “unallocated alimony and child support.” This is a combination of alimony to an ex-spouse and child support for the children. Child support, if paid separately, is not tax deductible by the payor or includible by the recipient, however when paid as an unallocated order, it is treated as alimony i.e. deductible and includible. Again, fashioning an unallocated alimony and support order has been an effective tool in maximizing available dollars, limiting taxes and most importantly, settling cases. Under the new tax law, the deduction for unallocated orders will be eliminated, after December 31, 2018.

It would appear, based on the above, that the new tax law will have a profound effect on the post-divorce financial situation of divorced parties, by increasing the tax burden and thereby making less money available to the recipient spouse and children. The practical effect is that it is likely to make divorce negotiations more difficult.

While alimony reform laws have been hotly debated in the last several years and states differ as to the availability and application of alimony, many Greenwich and Westport divorce lawyers have found alimony to be essential in allowing spouses to adjust to the post-divorce family economics. At the same time, skilled divorce attorneys have been able to settle cases by carefully crafting alimony and unallocated support payments that work to the advantage of both parties and the family.

If you are currently in the process of divorce and alimony is likely to be in the picture, you should consult with your attorney about concluding your case this year. Likewise, if you are thinking about filing for divorce this year or if your spouse is likely to do so, you should talk to an attorney about how the new law might affect you and whether or not your goal should be to get it done in 2018. Bear in mind, in Connecticut, divorces can often be a drawn out situation. It is not uncommon for them to take at least a year, start to finish. Now is the time to think about accelerating your case if the new tax law could have negative consequences for you.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we have years of experience in crafting separation agreements that take into account the tax advantages of alimony and unallocated support payments. We have also been successful at trial in obtaining for our clients orders that recognize the tax implications of these payments and which minimize the tax effect while maximizing the available dollars for the post-divorce family.

 

Should I Waive My Right to Alimony?

This Week’s Blog by Lauren M. Healy

When you are divorced in Connecticut, the Court may make an award of alimony–the payment of money from one spouse to the other (sometimes also referred to as “spousal support” or “maintenance”). Alimony is based on the presumption that spouses have a continuing duty to support each other financially while a divorce is pending and/or after the divorce is granted.

If your spouse has historically been the primary wage earner or primary source of financial support for the family, it is typical for that arrangement to continue after the divorce with an award of alimony to you, as the non-working or lesser earning spouse.  However, what happens when you and your spouse have similar levels of income, or if neither of you work? In that case, there may be an alimony waiver, or an award of “one dollar a year” of alimony.

An alimony waiver means that you and/or your spouse agree that no award of support, maintenance or alimony will be made by the Court at the time of the divorce. If you waive alimony at the time of your divorce, you are also waiving any claim for past or future alimony. There are different reasons why you may consider waiving alimony:

  • You are the primary wage earner in your family
  • You have not historically relied on your spouse for financial support
  • You and your spouse were married for a very short period of time
  • You and your spouse have similar levels of income
  • You are confident in your ability to support yourself in the future

There is no requirement that an alimony waiver be mutual. Alimony can be waived by one party and not by the other.  If you decide to waive alimony, at your divorce the Judge will ask you questions specifically about that alimony waiver, in order to determine that you understand what it means to waive your right to support and to verify that you can care for yourself financially.

What happens if you are comfortable waiving alimony at the time of your divorce, but do not want to preclude your right to ask for an award of alimony in the future? The answer may be that your spouse pays you “one dollar a year” in alimony for a certain period of time (the alimony term). The $1 is symbolic. It really means that no alimony will be paid to you for the time being, but it leaves the door open for you to ask for a modification of the alimony amount in the future. Leaving alimony open with an award of “one dollar a year” may be appropriate if:

  • You are currently working but your future employment is uncertain
  • There is a possibility that your spouse will return to the workforce or make significantly more money in the future
  • There are health concerns that prevent you from knowing if you will be able to support yourself in the future
  • You have been married for many years and you and/or your spouse are of advanced age

Experienced divorce counsel in Westport and Greenwich can help you determine if the circumstances of your case make an alimony waiver realistic or preferable to “one dollar a year” in alimony. At Broder & Orland LLC we are adept at advising our clients on the strategies and the multitude of factors considered by a Court in establishing an alimony award.

Dan v. Dan: Modification of Alimony in Connecticut Divorce Cases

This Week’s Blog by Eric J. Broder

The following is a discussion and summary of a seminal case when dealing with the modification of alimony in the state of Connecticut. Dan v Dan, 315 Conn. 1 (2014) has created quite a stir in the Connecticut divorce bar. It is an important case for practitioners and clients dealing with post-judgment alimony issues to understand. Below is an analysis of the case.

In 2000, a judgment of divorce was entered. The parties had been married more than twenty-nine years. They had three children, all of whom had attained the age of majority before the divorce. At that time of divorce, the Defendant’s base salary was $696,000.  The Agreement provided for the Plaintiff to receive $15,000 per month in alimony, as well as a sum equal to 25% of any bonus income that the Defendant received. The parties also agreed that the Defendant’s alimony obligation would cease when he reached the age of sixty-five or his retirement, whichever occurred first. The Defendant was 50 years old at the time of the divorce and the Plaintiff was 51 years old.

Ten years later, in 2010, the Plaintiff filed a modification of alimony, claiming that her medical expenses had “skyrocketed” and the Defendant’s income had increased substantially.   The Court found that the Plaintiff had failed to prove a substantial change in her circumstances because of an increase in her out-of-pocket medical expenses. The Defendant stipulated during the hearing, however, that he had a substantial increase in his income since the divorce and that this constituted a substantial change in circumstances.

In 2010, the Defendant worked excessively long hours to earn an annual salary of $3.24 million and an additional $3 million from cashing out stock options. At the time of the post-judgment proceeding, the Plaintiff was 61 years old, the Defendant 60 years old. Though the Plaintiff had several health problems, including diabetes that was poorly controlled, this was a circumstance which had existed at the time of the divorce. (The Plaintiff had no college degree and although she had once worked as a receptionist and executive assistant, she had not been employed since 1977.)

After addressing the statutory factors set forth in § 46b–82, the trial court granted the Plaintiff’s motion and increased the Plaintiff’s alimony award from $15,000 to $40,000 per month, plus 25% of any bonus in come that the Defendant received. The court modified the term of alimony to lifetime. In making its decision, the trial court focused on the length of the marriage, the health of the parties, the station and occupation of the parties, the amount and sources of income of each party, and the vocational skills of each party.

 The Supreme Court held that in the absence of certain exceptional circumstances, a substantial change in income standing alone was not sufficient to grant a motion to modify alimony.   The Court set forth a new inquiry to consider when the only substantial change is an increase in payor’s income: (1) Was the original award sufficient to fulfill the original purpose? (2) Does the award continue to fulfill the original purpose? The decision does not discuss in detail what exceptional circumstances might be.

In determining whether an alimony award should be modified when there has only been an increase in the payor spouse’s income, the trial court can only consider: the length of the marriage, the cause of the divorce, and the age, station, vocational skills and employability of the parties. However, these factors shall only be considered in the context of determining the initial intent of the alimony award.  They should not be considered as reasons for altering the purpose of the initial award.  The trial court does not have the discretion to retry issues that have already been decided.

The Supreme Court remanded for a new hearing because the trial court did not address the issue of whether exceptional circumstances existed in this case to justify a modification upward of alimony. The Supreme Court surmised that the original purpose of alimony in this case was to allow the Plaintiff to maintain the standard of living she had during the marriage. The trial court made no finding as to whether the original award continued to be sufficient to meet the original purpose of allowing the Plaintiff to maintain the standard of living she had during the marriage, which is a different question than whether her expenses are met.

Alimony in a Divorce Action: What Factors Does a Court Consider in Entering an Order During the Pendency of an Action and as a Final Order?

Many clients come into our office from the towns of Fairfield County wondering whether they will be obligated to pay alimony to their spouse, or whether they will be receiving alimony from their spouse during the pendency of a divorce action, and/or upon the Court entering a final decree of divorce. While the Court may order either party to pay alimony to the other, the amount of alimony ordered and the duration of time that a party may be directed to pay alimony is not straightforward.

Pursuant to Connecticut General Statutes Annotated (“C.G.S.A.”) § 46b-83, the Court has the authority to enter order(s) concerning alimony during the pendency of a divorce proceeding (“pendente lite”).  The Court also has the authority to order alimony at the time of entering a final decree pursuant to C.G.S.A. § 46b-82. In entering an award of support, the Court shall consider several factors enumerated by statute, including but not limited to the following: the length of the marriage, the causes of the breakdown of the marriage, the age, health, station, occupation, amount and sources of income, earning capacity, employability, estate and needs of each of the parties in determining whether alimony shall be awarded, and the duration and amount of the award. In entering an award of alimony, while the Court is required to consider the factors enumerated by statute, it need not give each factor equal weight so long as the Court has considered all of the statutory criteria.

During a contested court matter concerning spousal support both parties will present evidence related to the criteria set forth by statute. The evidence presented may include information concerning each party’s educational background, his or her earning history, whether there are children to the marriage and each party’s ability to continue working and/or return to the workforce given this factor, as well as expert testimony on matters such as each party’s earning capacity and/or employability.  After a Hearing on the merits, the Court will then enter an order of alimony, setting forth the duration and amount of alimony to be awarded.

As a practical matter, the alimony duration will vary depending on the length of the marriage and the ages of the child(ren) if child(ren) are involved.  The amount of alimony will also vary depending on any child support component, and whether one or both of the parties are currently working and/or have the feasibility to continue working.  In establishing an amount of alimony awarded, depending on each party’s income structure, a Court may order for a party to pay the other a percentage of his or her income, but other times a party may be ordered to pay a specific monthly amount.  There are also circumstances in which it would be inequitable at the time of entering the alimony order for the Court to even establish an amount of alimony to be awarded.  However, rather than preventing a party from receiving alimony in the future, the Court may preserve that party’s right to return to Court to seek alimony during the alimony term.

At Broder & Orland LLC we understand the financial constraints that a pending divorce can pose on both parties to a divorce, and the importance of establishing an equitable amount and duration of alimony. We are adept at advising our clients on the strategies and the multitude of factors considered by a Court in establishing an alimony award. We also recognize the emotional and financial stress that a contested divorce proceeding can pose on the parties and we are empathetic to our clients’ needs.

Unallocated Alimony and Child Support

Any parent contemplating divorce understandably wishes to know whether and to what extent he or she will be entitled to receive, or obligated to pay, child support and/or alimony.  However, many potential clients we speak to are unfamiliar with a third type of support — commonly referred to as “unallocated alimony and child support” — which in certain circumstances can be a useful (and sometimes critical) tool for resolving support issues in a divorce through negotiated settlements.  In simple terms, an unallocated support payment from one ex-spouse to another is an obligation that contains both alimony and child support components lumped together into a single payment.

In order to understand the potential benefits to both parties of an unallocated support obligation, it is first necessary to understand the different tax treatments that apply to child support payments and alimony payments.  In a nutshell, child support payments are neither tax deductible to the person making the payments, nor taxable as income to the person receiving the payments.  Alimony payments, in contrast, are taxable, meaning that such payments are tax deductible to the payor and taxable as income to the person who is receiving the payments.

When parties agree upon an unallocated support obligation, they are agreeing, for purposes of settlement, to lump child support and alimony together into a single payment, the entirety of which will be treated like alimony for tax purposes (i.e., tax deductible to the payor and taxable as income to the payee).

The fact that the payor receives favorable tax treatment on unallocated support payments while the payee receives unfavorable tax treatment on such payments begs the following question: why would the payee spouse agree to this arrangement?  The answer is that, under certain circumstances, it can benefit both parties to combine child support and alimony into a single unallocated taxable support payment.  This is typically the case where the spouse paying alimony and child support has a substantial income and the spouse receiving alimony and child support has little or no income of their own. The reason that unallocated support may be beneficial to both parties is that it allows the parties to shift income from higher tax brackets to lower tax brackets. As a result, the payor will ultimately end up keeping more of his or her income because of the ability to use the entire unallocated support payment as a tax deduction and will thereby have more disposable income available with which to pay support. Stated differently, due to the tax savings, the individual paying support may end up with more money than he or she otherwise would have if alimony and child support payments were made separately and, as a result, the receiving spouse (and children) can benefit from an increased payment amount than if they had received alimony and child support separately.  In this scenario, the entire family wins and the IRS suffers the loss.

In considering the use of an unallocated support award, it is critical to ensure that the support payment is set in such a manner so as to be an incentive to both the payor and the recipient. Generally speaking, an unallocated support award will not be advantageous for former spouses who earn similar incomes.

At Broder & Orland LLC, we regularly represent clients in Greenwich, Darien and other towns throughout Fairfield County and the state of Connecticut for whom unallocated support payments are advantageous, and we are well-versed in the complexities of such awards and how to use them as a settlement tool to maximize your post-divorce financial well-being.

Under Connecticut Divorce Law, Can you modify an Alimony Order that has already been modified?

This exact issue was a subject of a well-known case entitled Borkowski v. Borkowski, 228 Conn. 729 (1994). Recently, I spoke at the Connecticut State Bar Association’s Annual Conference and Borkowski was amongst the cases I presented.  The following explanation summarizes the court’s decision and addressed the following:

Issue presented: When a party files a motion to modify alimony following a prior modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?

Short Answer: No. The trial court’s inquiry should be limited to whether there has been a substantial change in circumstances from the date of entry of the most recent court order to the present. In this case, the trial court had improperly considered facts going back to the time of entry of the original divorce decree.

Statement of the Facts: The parties were married in 1968 and divorced in 1983 after a 15-year marriage. The Defendant-Husband was ordered to pay $3,000 per month in unallocated alimony and child support.  On February 25, 1988, the Defendant sought a modification of the unallocated alimony and child support order on the grounds that one of the minor children had reached majority and another had moved into the Defendant’s home.  Pursuant to the Defendant’s motion, the unallocated support order was reduced by $500 per month requiring the Defendant to only pay $2,500 monthly. On March 30, 1990, the Defendant filed a second motion for modification to reduce the unallocated order on the basis that a second child had reached the age of majority.  While the Defendant’s motion was pending, the Plaintiff filed a motion for an increase in the unallocated order on the grounds of increased medical expenses. Both parties’ motions were granted, the unallocated order remained $2,500 a month ($250 decrease as to Defendant’s Motion, and a $250 increase as to Plaintiff’s Motion, effectively cancelling each other out).

The Defendant then filed a third modification motion on April 12, 1991, seeking a modification by reducing and/or terminating the unallocated support payable to the Plaintiff and/or entering a separate order of child support for the remaining minor child not in his custody.   The trial court found that there had been a substantial change in circumstances based on a decrease in the Defendant’s income and an increase in the Plaintiff’s income.  Additionally, the Plaintiff had a medical condition, which had been complicated by a 15% permanent disability of her cervical spine.  On the basis of these findings, the trial court granted the Defendant’s motion to modify the unallocated order, but denied his motion to terminate alimony.  Specifically, the trial court separated the unallocated order into distinct alimony and child support orders and reduced the Defendant’s total amount of monthly payments to the Plaintiff.

The Defendant appealed on the basis that, in making its orders, the trial court had improperly considered evidence of events and conditions that had occurred prior to the most recent modification of the unallocated order. The Defendant argued that the trial court should only have considered any changes which occurred subsequent to the most recent modification. The Defendant also argued that the following should not have been permitted by the trial court: (1) the Plaintiff’s testimony about the cause of her spinal injury in 1981, and about the deterioration of her medical condition at that time; (2) the Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree); (3) the Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 in 1983; and (4) the Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

Holding: To avoid the re-litigation of matters already settled, courts in modification proceedings are limited in their inquiry to a comparison between the current conditions and the last court order.

With respect to each of the specific evidentiary issues presented, the court held the following:

(1) The trial court properly permitted the Plaintiff’s testimony about the cause of her spinal injury in 1981 and about the deterioration of her medical condition at that time. Although both the Plaintiff’s injury and her surgery predated the most recent modification, she only developed her 15% permanent disability subsequent to the modification (testimony to the early cause of injury was necessary to establish a foundation as to how she developed the 15% permanent disability);

(2) The Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree);

(3) The Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 thousand in 1983; and

(4) The Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

– With respect to issues 2, 3 and 4, the Supreme Court found that the trial court improperly admitted evidence about the Defendant’s business receipts, the Plaintiff’s diminishing interest in an investment account and evidence of the Plaintiff’s terminated interest in the Defendant’s retirement plan. All of these events dated back to the original divorce decree.  Evidence concerning each of these specific financial changes had been raised and considered at earlier modification hearings.

The Supreme Court held that the trial court’s improper and prejudicial evidentiary rulings required its decision to be set aside. The judgment of the Appellate Court was reversed and the case was remanded with direction to reverse the judgment of the trial court and to remand the case for a new hearing on the Defendant’s motion for modification.

 

 

Modification of Alimony Post-Judgment in Connecticut

By: Sarah E. Murray

Fairfield County Family Courts have a significant number of post-judgment cases, many of them involving the modification of alimony after a divorce. Modification of alimony post-judgment is a common issue that arises for people living in towns like Greenwich and Fairfield, as changes in income or other circumstances lead both alimony payors and alimony recipients to seek relief from the Court with respect to alimony payments.

Some divorce agreements or Court decisions state that alimony is non-modifiable by one or both parties as to term, i.e. duration, and/or amount. If a divorce agreement or Court decision states that alimony is non-modifiable as to amount or duration, or both, it means that a party cannot seek to change the amount of alimony, nor to extend or reduce the alimony term, regardless of whether circumstances have changed after the divorce. There may be particular reasons why a person would agree to, or request that a Court Order, non-modifiable alimony. Generally, it is less common for a final divorce judgment to state that alimony is non-modifiable.

In most cases, the final divorce judgment either explicitly or implicitly permits the modification of alimony. Connecticut General Statutes Section 46b-86(a) allows for the modification of alimony “[u]nless and to the extent that the decree precludes modification.” In other words, as long as the final divorce judgment does not state that alimony is non-modifiable, a party has a right to modify alimony. Alimony is also
modifiable based on the cohabitation of the alimony recipient.

Of course, simply because a final judgment allows for modification of alimony post-judgment does not mean that a person’s claim that alimony should be modified will be successful. In order to obtain a Court Order modifying alimony under General Statutes Section 46b-86(a), the party seeking the modification must prove that there has been a substantial change in circumstances of either party. Under Connecticut case law, 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 of alimony with circumstances at the time that a party seeks a modification of that Order. Relatively minor fluctuations in income alone will not be enough to overcome the “substantial change in circumstances” threshold.

Furthermore, our office was involved in a recent Connecticut Supreme Court case, Dan v. Dan, 315 Conn. 1 (2014), which states that an increase in the income of the alimony payor, standing on its own, is not sufficient justification to modify an alimony award upward. Prior to this case, it was common for an alimony recipient to seek modification of alimony if his or her ex-spouse had an increase in income. Now, such a motion is likely to fail under Dan. Dan, however, does not prevent an alimony recipient from
requesting a modification of alimony if other circumstances have changed such that the original purpose of the alimony award is no longer met.

It is critical to allege a proper basis for modification, as the Court will confine its analysis to the substantial change in circumstances alleged in the moving party’s motion. Significant changes in health and job loss are examples of possible substantial changes in circumstances. Each case is different. In order to prove a substantial change in circumstances that would justify a change in alimony, a party needs to engage in
strategic planning, preferably with an attorney, prior to filing a motion for modification. If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior

If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior alimony award is still proper. Or, the Court can decide to change the alimony amount or term. If the Court does change the alimony amount or term, the Court has the authority under the statute to make the change retroactive to the date that the motion for modification was served on the other party. The Court does not have to make its Orders retroactive but has the discretion to do so.

At Broder & Orland, LLC, our attorneys have significant experience handling cases involving the modification of alimony post-judgment. In fact, we have been involved in some of the seminal cases in Connecticut on alimony modification issues and can consult with clients to shed light on whether a potential alimony modification case is viable.

MODIFICATION OF ALIMONY IN CONNECTICUT BASED ON COHABITATION

What happens to alimony if the alimony recipient lives with a significant other after the divorce? This is one the more common questions we at Broder & Orland, LLC hear from our clients, as cohabitation after divorce is becoming more common in Fairfield County, Connecticut. Typically, alimony ends upon the remarriage of the alimony recipient. What happens if the alimony recipient decides to live with a significant other rather than get remarried is a more complicated issue.

Top divorce lawyers in Greenwich, Stamford, Darien, New Canaan, and Westport know that, unless the parties agree otherwise or a judge orders otherwise as part of the final orders in a divorce case, alimony orders are modifiable based on the cohabitation of the alimony recipient. Those paying alimony need to know what their rights are in the event that an ex-spouse is cohabiting. Likewise, those receiving alimony need to be aware that living with a partner after the divorce could put their alimony award at risk.

In Connecticut, we have what divorce lawyers refer to as a “cohabitation statute,” though the statute itself does not use the word “cohabitation.” Connecticut General Statutes Section 46b-86(b) says:

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