Tag: child support

Testifying in a Connecticut Divorce

This Week’s Blog by Christopher J. DeMattie.

Do I have to testify during my Connecticut Divorce?

A divorce action is a civil lawsuit, so any time evidence is required to resolve a disputed issued testimony of witness is likely required.  Typically, the witnesses in a divorce action are you and your spouse, however, it is common for other fact or expert witnesses to also testify.  An example of a disputed issue which could require your testimony is what school your child should attend.  You and your spouse will likely be required to provide testimony as to why you believe a certain school is a better fit for your child and why it is in your child’s best interest to attend that school.

What is the format of testifying during my Connecticut divorce?

The two main categories of testimony are direct examination and cross examination.

Direct examination is the questioning of a witness by the party that called the witness to testify.  An example of direct examination is when your attorney calls you as a witness to testify.  Proper direct examination questions are posed in an open-ended manner.  Typically, direct examination questions begin with: who, what, when, where, why, and how.

Once your attorney concludes your direct examination, your spouse’s attorney has the option to cross-exam you.  Unlike direct examination, where the questions are open-ended, proper cross examination questions are leading.  A question is considered leading if the answer is suggested in the question.  If done properly, during cross examination the attorney is essentially testifying, and the witnesses is merely confirming or denying the question posed by the attorney.

An example of a direct examination question versus a cross examination questions is as follows:

Direct – Where did you and your spouse marry?

Cross – Isn’t it true that you and your spouse were married in Greenwich, Connecticut?

Once your spouse’s attorney concludes his or her cross examination of you, your attorney will have the option to redirect you.  Redirect is the opportunity to correct or expand on the topics covered during cross examination.  Since proper cross examination often requires are simple yes or no answer, you may want the opportunity to offer more expansive testimony on the topic.  For example, on cross examination you may be asked: Isn’t it true that you were late in paying alimony, yes or no?  If the answer is “Yes”, on redirect examination your attorney may ask you: Why were you late paying alimony? You will then explain the reason why you were late paying alimony.

Thereafter, the opposing attorney will have the option to recross examine you, but he or she can only ask questions within the scope of the redirect examination.  For example, if the redirect examination is limited to questions pertaining to alimony, you typically cannot be asked questions about custody on redirect examination.  This format of redirect and recross examination will continue back and forth until there are no further questions.

What are my basic responsibilities while testifying?

Your first and most important responsibility is to tell the truth.  You will be given an oath by the Clerk to tell the truth, and failure to tell the truth could result in perjury charges or the Judge not finding you to be credible.  In a divorce case, credibility is one of the most important aspects since often a dispute comes down to a “he said, she said” situation.

Second, you need to only answer the question that is asked.  Otherwise, you answer could be stricken as non-responsive, which will only prolong the process.  You may find yourself not wanting to answer the question posed to you by opposing counsel, but you have an obligation to answer the question, unless an objection to the question is sustained.  You also need to remember that your attorney will be able to ask you follow up questions on redirect examination to correct or expand on the question.

Third, if an objection is raised, do not answer the question until you receive instructions from the Judge.  If the Judge sustains the objection you do not have to answer the question.  If the Judge overrules the objection you must answer the question.

Finally, you do not want to fight with opposing counsel.  Opposing counsel may purposefully ask incendiary questions to get you to lose your composure in front of the Judge.  You must do you best to try and stay in control and have faith in your attorney to “fix” any issues on redirect examination.

Broder & Orland LLC with offices in Westport and Greenwich, CT, concentrates specifically in 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.

CAROLE T. ORLAND QUOTED IN GREENWICH MAGAZINE, JULY 2019.

No.191 SEPARATE WAYS CAROLE ORLAND

When it comes to divorce, the dirty little secret is not that one of the partners had an affair; rather, it’s that this transgression will not significantly affect the court settlement. Here in Connecticut, assets in most  divorce cases nearly always get split down the middle. As for his affair with the dog groomer? That might nudge the needle a bit, to 50/50 or maybe 60/40 percent – but beyond that? Not likely.

Child Support is mandated by state guidelines, and alimony, too, falls within a range that any reputable divorce attorney can estimate. Even Parenting Plans are predictable, reflecting the availability of each party to parent the children. While the court considers all circumstances in a divorce case, says Carole Topol Orland, attorney and cofounding member and partner of Broder & Orland LLC in Westport and Greenwich, it doesn’t have to apply any of them to the settlement.

So why make divorce a war? Find an experienced attorney beforehand who can clue you in on the likely outcome, saving you lots of anguish, time and money.  Carole T. Orland

Read the full article, published in the July 2019 issue of the Greenwich Magazine as well as all their publications including Westport, New Canaan-Darien, Stamford and Fairfield.

 

 

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.

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.

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.

Broder & Orland LLC Assists its Divorce Clients in Navigating New Alimony Rules

The New York Times recently published an article on the new tax laws affecting those contemplating divorce:

Strip out the acrimony and emotion, and divorce can be boiled down to a business negotiation. Harsh as that may sound — there are often children stuck in the middle — when a couple gets down to completing their split, the numbers matter: assets, support, time allotted with children.

Divorce negotiations are never easy, and they became more complicated this year…

The attorneys at Broder & Orland LLC have years of experience in crafting separation agreements that take into account the tax advantages of alimony and unallocated support payments.

Read the full article here.

 

How are Social Security Benefits Treated in a Connecticut Divorce Case?

This Week’s Blog by Jaime S. Dursht

Social Security benefits are not considered a marital asset and are therefore not subject to division in a Connecticut marital dissolution action.

Are Social Security Benefits an Asset of the Marriage Subject to Division?

Future Social Security benefits are governed by federal law which specifically prohibits the transfer and/or assignability of the benefit. (Social Security Act, 42 U.S. Code § 407)  The United States Supreme Court has held that the right to receive Social Security benefits does not constitute property.  State courts hold that federal law preempts state property laws that would otherwise subject Social Security benefits to classification as marital property for division.  

Are Social Security Benefits Considered in Computing Alimony?

If Social Security benefits are in pay status and being received, then it is considered a current source of income and included in the determination of support payable under the alimony statute.

Can Social Security be Garnished to Pay Alimony and/or Child Support?

Yes.  In 1975, Congress carved out an exception for alimony and child support from the prohibition of subjecting Social Security benefit funds to execution, levy, attachment, garnishment, or other legal process.  In cases involving a judgment for unpaid alimony, the Social Security Act permits garnishment of benefits for the judgment as well as court costs and penalties. 

Does an Ex-Spouse Have a Right to Claim the Former Spouse’s Social Security Benefit?

Yes, if you meet the following criteria:

  • Age 62
  • Unmarried
  • Divorced from someone entitled to receive Social Security benefits
  • The marriage had been for at least 10 years

You are eligible to apply for benefits on your former spouse’s benefit even if he or she has not retired, and as long as you divorced at least two years before applying.  If you are entitled to your own Social Security benefits, your benefit amount must be less than you would receive based on your ex-spouse’s record, and you will be paid the higher of the two benefits, but not both.  Also, this would have no effect on the benefits your ex-spouse is eligible to receive.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce.  Our attorneys are very experienced with the financial issues faced by individuals in a divorce, and understand the importance of accurately identifying assets and available sources of income in advising our clients about establishing a financial plan.

Imputing Income for Child Support Purposes

This Week’s Blog by Andy M. Eliot

How is Child Support Generally Determined in Connecticut?

In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula which yields a presumptively correct weekly child support obligation that one parent must pay to the other.

What Does Voluntary “Underemployment” Mean?

Voluntary underemployment occurs when a parent (whether it be the child support obligor or the parent receiving child support) voluntarily earns less income then he or she is capable of earning based upon his or her education, training and past earnings.  Consider, for example, a scenario in which a child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue to pursue a far less lucrative career as a musician; this would be an example of “voluntary underemployment.”

Do Courts Have Any Means to Redress Voluntary Underemployment in Issuing Child Support Awards?

Yes.  In such circumstances, courts have the discretion to attribute or “impute” income to a parent (whether it be the parent paying child support, the parent receiving child support, or both) for purposes of determining child support obligations.  In other words, when plugging a parent’s income into the mathematical child support formula set forth in the Connecticut Child Support Guidelines, courts may utilize an income figure that reflects the amount of income that a parent could potentially be earning (commonly referred to as “earning capacity”), rather than the amount the parent is actually earning at the time.

How do Courts Determine what Amount of Income to Impute to a Party?

In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ.  Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination.  However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health.

Are Experts Ever Used to Determine Earning Capacity?

Yes.  In cases where earning capacity is an issue, it is common for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.

Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise.  At Broder & Orland LLC, we have extensive experience handling matters where earning capacity is at issue and have a well-established track record of achieving favorable results for our clients in such matters.