Tag: fairfield county

PARENTING PLAN MODIFICATIONS PROMPTED BY COVID-19

This Week’s Blog by Christopher J. DeMattie and Jaime S. Dursht, Westport and Greenwich attorneys at Broder & Orland LLC.

Parents around Fairfield County are grappling over how best to limit the daily risk of COVID-19 exposure, and for many, the social distancing and isolation measures pose logistical challenges to parenting access schedules as well as disputes over what safety practices protect the best interests of the children.

Since the law requires that custody orders be followed unless or until they are legally modified, issues arise as to how to avoid possible violations as well as how to accomplish legal modification of parenting plans, especially given the recent court closures and restrictions.

What is the Procedure to Modify my Parenting Plan?

Assuming your matter is post-judgment (a final judgment has entered), the process requires filing an Application with the Clerk. The Application must include the: (1) current Order, (2) grounds or the allegations being made to assert modification, and (3) the proposed change. Once filed, the Clerk will issue an Order assigning a specific date and time for hearing on the matter, which must then be served upon your former spouse within a specified time frame. Once service of process is completed, the action is initiated, and you and your former spouse must appear in Court on the assigned date.

Presently, until at least April 30, 2020, the Courts are limiting who may physically enter the Courthouse to those required to appear on specific emergency family matters. However, online access to filing Motions is available through the judicial e-File system, which allows for post-judgment filing when the underlying case was initiated in 2015 (when the e-File system went into effect) or later, and by facsimile filing for earlier cases.

Before the impact of COVID-19, the filing process and date assignment by the Clerk could take a day or so, however, due to the limited staff and hours at the Courthouse, we anticipate this taking much longer. Thus, if you are contemplating initiating a post-judgment Modification, it is advisable to “start the clock” running as soon as practicable.

What are the Standards for Modifications to Legal and/or Physical Custody?

The legal standard differs for modifications to legal custody versus modification to physical custody. Legal custody refers to parental decision making on matters of education, health, and religious upbringing. Physical custody refers to the schedule of parenting access or visitation.

If a party is seeking to modify only legal custody or both legal and physical custody, the modification must be based on either (1) a material change in circumstances which alters the Court’s finding of the best interests of the child, or (2) a determination that the current custody order was not based upon the best interests of the child when it was entered.

The legal standard for modification of physical custody, e.g., parenting access / visitation schedule, is that of the best interests of the child(ren). A party is not required to show a material change in circumstances.

In either case, the evidentiary burden of proof at a hearing is that of a preponderance of the evidence, which is “more likely than not.” Thus, the moving party has the burden of proving by a preponderance of the evidence that a change in either the legal and/or physical custody would be in the best interest of the child(ren).

What Factors will the Court Consider when Modifying Custody and/or a Parenting Plan?

In determining the best interests of the child(ren) a Court will consider many factors, including those set forth in Conn.Gen.Stat. 46b-56(c): (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand the needs of the child; (3) any relevant and material information obtained from the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parties in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parent education program established pursuant to section 46b-69b.

Do I Risk a Charge of Contempt if I Do Not Follow the Parenting Plan?

A finding of contempt requires clear and convincing proof that (1) a clear order exists; (2) a party had the ability to comply; and (3) the party willfully did not comply. The purpose of a Motion for Contempt in the context of custody is to coerce compliance and to obtain remedial relief in the form of make-up time or possibly monetary fines.

For those parents who find themselves in precarious circumstances due to COVID-19, we advise you to do your best to adhere to your parenting plan obligations. If, for whatever reason, you find yourself unable to do that, then document your circumstances in real-time to preserve a record.

What Steps Can I Take to Reach a Temporary Agreement?

We encourage parents to attempt reasonable temporary arrangements with one another, and we are available to assist with negotiating and formalizing agreements to the extent necessary. Most Separation Agreements contain Modification Clauses that require any modification to be in writing and executed with the same formality as the Separation Agreement itself to be valid, and this applies to the terms of Custody Agreements.

Our attorneys at BRODER & ORLAND LLC, with offices in Westport and Greenwich, are very experienced with the issues of custody and parenting plan modifications. We remain available to assist you throughout the COVID-19 pandemic and thereafter, including the negotiating and formalization of temporary custody agreements.

How To Divorce Discreetly

This Week’s Blog by Carole T. Orland, a Westport and Greenwich attorney at Broder & Orland LLC.

Commonly asked questions for discreet divorces

  1. Are divorce records public?

Generally, yes. However, experienced divorce attorneys in Westport, Greenwich, and other Fairfield County locations know how to limit public exposure by negotiating a divorce agreement prior to filing an action. Once the agreement is finalized, it may be possible to file the action and get divorced the same day!

  1. What is the advantage of handling a divorce in a discreet manner?

Most importantly, it protects the children from conflict and/or embarrassment. It also protects the parties from scrutiny or disclosures of personal information.

  1. Can wealth and fame be protected in a discreet manner?

Yes. High asset and/or celebrity divorces can be handled in a discreet manner, without public disclosure of sensitive or proprietary information. It is an effective way of protecting one’s career and reputation.

  1. Do both parties have to agree to handle their divorce in this manner?

Yes. Without such an agreement or understanding between the parties, one spouse or the other could file for divorce and litigate the case, which then becomes public. Divorce files are available to anyone who wants to see them and courtrooms are generally open to the public, meaning your divorce could be on display to the public.

  1. Will handling a divorce discreetly result in lower attorneys’ fees?

Most often, yes! Litigation typically drives up costs. That’s not to say that a discreet divorce is always inexpensive. There may be complicated assets which could require valuations such as interests in private equity, hedge funds, venture capital funds, closely held businesses, start-up companies, stock options, and restricted stock. These interests may require special expertise and time to sort out but the cost will be considerably less than sorting this out through protracted litigation.

  1. How can the parties assist in a discreet divorce?

It will be important to get all your ducks in a row as expeditiously and efficiently as possible. Prepare a spreadsheet of all assets and liabilities, regardless of whose name they are titled in.

Discuss between you and your spouse what your goals and objectives are with regard to the division of assets. With your attorney, determine if spousal support will be an element of your divorce agreement.

  1. How should you handle children’s issues?

Make your Parenting Plan a priority. Be realistic about what is in the best interests of your children and the times each parent can be available to have them. If necessary, utilize professionals such as therapists or social workers to arrive at the best plan. Have it ready to go as soon as possible so you can then turn your attention to financial matters.

At Broder & Orland LLC we are very experienced in handling divorces in a discreet manner. While often these cases involve extreme wealth or celebrity status, the principle can apply to any parties who want to shield their personal lives from the public. Done properly, it is an efficient and generally more cost effective way to get divorced. And of course, it is more civil as well!

 

 

How are Same-Sex Divorces Handled in Connecticut?

This Week’s Blog by Jaime S. Dursht.

 

Same-sex divorce in Connecticut is governed by the same Family Law statutes as heterosexual divorce, however, there are particular issues that should be analyzed at the outset of the process to ensure a successful outcome. Connecticut legally recognized same-sex marriage in 2008, and since then there have been additional changes in both Federal and State law that have affected the application of Family Law in Connecticut. For example, in 2016, the Internal Revenue Service issued a ruling re-defining terms such as “spouse,” “husband and wife” and “marriage” to include individuals married to a person of the same sex if the individuals are lawfully married under state law. Because the divorce process involves asset division and transfers that are exempt from taxation if pursuant to divorce, applicability is particularly important because it is based on recognition of one’s legal marital status.

How is Jurisdiction of Same-Sex Divorce Determined in Connecticut?

Connecticut not only recognizes same-sex marriage, but will automatically merge civil unions that were entered into prior to the marriage (Conn. Gen. Stat. 46b-38qq). Connecticut will also recognize an out-of-state relationship as marriage if the jurisdiction of origin provides substantially the same rights, benefits and responsibilities as a marriage recognized in Connecticut (Conn. Gen. Stat. 46b-28a). This means that if an individual meets the residency requirements of living in Connecticut for at least 12 months prior to the filing of a divorce action, parties to a formal relationship originating in another state may divorce in Connecticut so long as the relationship criteria are met.

How are Custody and Parenting Plans in Same-Sex Divorce Handled in Connecticut?

An initial step for parties with children in any divorce is to determine the parenting arrangements. In same-sex divorce, custody and parenting plans can be established once the child(ren)’s legal parents are identified. This is because Connecticut statutes providing for parental rights and obligations of both custody and support extend and apply to legally recognized parents. For same-sex couples that may include confirming the existence of a surrogacy agreement, legal adoption and co-adoption, and spousal consent under the alternative reproductive technology law. A parent who is not legally recognized as such may assert custodial rights, but only through a third-party custody proceeding.   In Connecticut, there is a marital presumption that a child born to a married woman is presumed to be the child of both individuals in the marriage. When Connecticut recognized same-sex marriages in 2008, the presumption extended to children born to individuals in same-sex marriages.

Once parentage is established, the same statutory criteria apply with respect to determining parenting plans in accordance with best interests of the children (Conn. Gen. Stat. § 46b-56) and with respect to the calculation and enforcement of child support (Conn. Gen. Stat. 46b-37).

What are Factors to Consider for Alimony and Asset Division in a Connecticut Same-Sex Divorce?

In Connecticut, one of the statutory factors that is considered in both the calculation of alimony and the equitable division of assets is “the length of the marriage.” (Conn. Gen. Stat. 46b-81 and 82). Since Connecticut legally recognizes same-sex marriages, it would seem to be a straightforward determination, however, some couples have been together far longer than Connecticut has recognized that legal relationship and want to include that time. Connecticut does not recognize cohabitation or common-law marriage, but Connecticut civil unions are automatically merged into marriages by operation of statute (Conn. Gen. Stat. § 46b-38rr(a)), and Connecticut will recognize legal relationships entered into outside of Connecticut as marriage as long as that relationship conferred similar legal rights and obligations benefits of marriage in the state of origin making it possible to include it in the length of the marriage.

What are Federal Tax Considerations for Same-Sex Divorce in Connecticut?

The Internal Revenue Service redefined its marital status terms in 2016 to include individuals married to another person of the same sex if the couple is lawfully married under state law. IRS Revenue Ruling 2013-17 specifically excludes domestic partnerships, civil unions and other formal relationships that are not recognized as marriage under state law. This is important for individuals in same-sex marriages and by extension, divorce, because not all individuals will be able to claim alimony payments as non-taxable income for example or characterize lump sum alimony as a non-taxable property distribution incident to divorce.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. Our attorneys are experienced with the unique issues faced by individuals in a same-sex divorce, and understand the evolving law with respect to both parenting and financial planning to achieve the desired results moving forward.

What is the Difference between a Family Services Evaluation and a Private Custody Evaluation in a Connecticut Divorce?

This Week’s Blog by Sarah E. Murray.

I Have a Contested Custody Case: What are My Options for a Custody Evaluation?

In some divorce cases in Connecticut where legal or physical custody is at issue, or where there is a significant custody-related dispute, such as a dispute regarding a parent’s relocation with the children, a custody evaluation can take place. A custody evaluation is performed by a neutral mental health professional, such as a psychologist or social worker, who is trained to perform custody evaluations in litigated custody cases. The purpose of the custody evaluation is to cull information about the parties and their children that has bearing on the particular custody dispute, to interpret that information for the Court, and, typically, to make recommendations regarding the dispute. A custody evaluation does not take place in every custody case in Connecticut; however, if the parties or the Court decide that a custody evaluation is necessary, there are options for the type of custody evaluation that can take place. Two types of custody evaluations in Connecticut are evaluations that take place through the Family Services Unit and evaluations that are performed privately by forensic psychologists.

Who Decides Whether a Custody Evaluation Will Occur?

Many times, the parties and their counsel in a contested custody case will agree that a custody evaluation should take place. Typically, experienced counsel will agree as to the type of custody evaluation that is appropriate given the particular facts and circumstances of the case. If there is an agreement as to both the decision to have a custody evaluation and the type of custody evaluation, the parties and their counsel will prepare a Stipulation setting forth the scope of the evaluation and will present the Stipulation for approval by the Court.

If there is no agreement that a custody evaluation should take place, or, if there is no agreement as to the type of custody evaluation that is appropriate for the case, one or both parties can file a Motion requesting that the Court order a custody evaluation. If a Motion is filed, the Court will hear argument from both parties as to why a custody evaluation should or should not take place and the type of evaluation that is appropriate. The judge will then decide whether to order a custody evaluation, and, if ordered, the type of custody evaluation. If a private custody evaluation is ordered, the Court will enter orders as to how the evaluator will be paid.

What is a Family Services Evaluation?

The Family Services Unit is an arm of the Connecticut Judicial Branch system that assists the Court in the resolution of disputes in family law cases, including custody cases. They have offices in each courthouse. The Family Services Unit provides several different services to the Court system, including Issue-Focused Evaluations and Comprehensive Evaluations in contested custody cases. An Issue-Focused Evaluation involves the evaluation of a limited disputed issue, and so the information-gathering is usually tailored to that issue. These evaluations typically take the least amount of time to perform because they have a limited scope. A Comprehensive Evaluation is more appropriate when broad custody and/or parenting plan issues are in dispute.

Family Relations Counselors, who work in the Family Services Unit, are trained in mediating custody disputes and in performing custody evaluations. If a case is referred to Family Services for an evaluation, whether by agreement of the parties or by a judge, a Family Relations Counselor will be assigned to perform the evaluation.

A Family Services Evaluation will typically include meetings with both parties, whether jointly or individually, meetings with the children, and home visits. Both parties usually will sign releases so that the Family Relations Counselor can speak with collateral sources, such as the children’s teachers, doctors, and mental health professionals. The Family Relations Counselor may also speak with the parties’ mental health professionals and doctors as well.

How Does a Private Custody Evaluation Differ from a Family Services Evaluation?

In a private custody evaluation, a forensic psychologist performs the custody evaluation, as opposed to the Family Services Unit. One of the biggest differences between a private custody evaluation and a Family Services Evaluation is cost, as the Family Services Evaluation is performed at no cost to the parties, whereas the private custody evaluation must be paid for by the parties. The private custody evaluator will perform many, if not all, of the same tasks as a Family Relations Counselor, as described above, but the private custody evaluator will often perform psychological testing on the parties and the children. After performing these tests, the forensic psychologist will analyze the results, particularly with respect to how the results inform any recommendations as to custody. For a variety of reasons, including the psychological testing, private custody evaluations usually take longer to complete than Family Services Evaluations. Some parties opt for a private custody study, however, because they think that the psychological testing will provide valuable information regarding their case.

Will a Written Report be Prepared in Both Types of Custody Evaluations?

Yes. The written reports prepared in a custody evaluation should set forth in detail the findings of the custody evaluator, the days and times he or she met or spoke with the parties, the children, and collateral sources, and will include his or her recommendations. In a private custody evaluation, interpretation of psychological testing results will be included.

Are the Recommendations in the Custody Evaluation Binding?

Regardless of what type of custody evaluation takes place in your case, the results are not binding on either party. That said, the recommendations in a custody evaluation are given great weight by a Court in deciding custody disputes. It is typical in a custody trial that the custody evaluator testifies in Court and that his or her report is entered into evidence. While a judge has discretion in custody cases and does not have to agree with the custody evaluator, the custody evaluator’s analysis will be presented to the Court for consideration.

Should I Have a Family Services Evaluation or a Private Custody Evaluation?

There is no “one size fits all” approach to custody evaluations, as the facts of each particular case are different. The decision as to whether a custody evaluation should take place, and what type of evaluation is appropriate, is a decision that should only be made after careful consultation with your family law attorney. There are many different factors to consider, including cost and time.

At Broder & Orland LLC, our attorneys have significant experience with custody cases and can provide you with advice regarding the type of custody evaluation best suited for your particular situation. It is important to know your options and discuss the pros and cons of each type of custody evaluation prior to making a decision, as custody evaluations carry great weight in either the settlement of or the trial of custody disputes.

What is an Uncontested Hearing?

This Week’s Blog by Nicole M. DiGiose.

What is an Uncontested Hearing?

 An Uncontested Hearing is the final step in the divorce process, after which the marriage of the parties is dissolved. An Uncontested Hearing occurs only after the parties have reached an agreement on all outstanding issues and memorialized that agreement into a written Separation Agreement and Parenting Plan (if applicable). Generally, both parties will be required to appear in Court on that date. The actual Uncontested Hearing only takes about 15 – 20 minutes.

What Documents need to be Prepared/Submitted before an Uncontested Hearing?

 Prior to an Uncontested Hearing, the parties are required to electronically submit or “e-file” certain documents and forms. In every case, their Separation Agreement and Financial Affidavits must be e-filed. If there are minor children the following documents must be e-filed: the parties’ Parenting Plan, Child Support Guidelines, and an Affidavit Concerning Children. If there is an award of alimony or child support, an Advisement of Rights re: Income Withholding must be e-filed. Finally, if the parties have elected to waive the twenty-day appeal period, a Stipulation to that effect is typically e-filed as well.

Do I have to take the Witness Stand?

 If you are the Plaintiff, yes. You will be called to the witness stand, sworn under oath, and asked certain questions by your attorney and potentially the other attorney or the judge. The Defendant is typically asked fewer questions under oath, and usually remains at counsel table.

 What Questions will I be Asked?

 Both parties will be asked about the agreement: whether they read it, signed it, understand it, believe it to be fair and equitable under the circumstances, believe it to be in the best interests of the minor children (if applicable), signed it of their own free will absent coercion or duress, and would like it to be entered as a Court order? If either or both parties have agreed to waive alimony, he, she, or they will be asked if they understand that if alimony is waived, they cannot later make a claim for alimony. The Plaintiff will be asked basic background questions: when and where the parties were married, the names and birth dates of the minor children (if applicable), whether or not either party or any minor child is receiving state aid, and if the marriage of the parties has broken down irretrievably with no hope of reconciliation? The Plaintiff will then be asked about the salient points of the parties’ agreement. This exercise will generally not be repeated with the Defendant. Instead, he or she will be asked if he or she agrees with the Plaintiff’s responses.

 What Happens After the Canvas?

 After both parties have been canvassed, the Court will make certain findings: that it has jurisdiction, when and where the parties were married, the names and birth dates of the minor children (if applicable), the presumptive amount of child support pursuant to the Child Support Guidelines and whether or not the application of the Guidelines is appropriate under the circumstances (if applicable), that the Parenting Plan is in the best interests of the minor children (if applicable), and that the parties’ agreement is fair and equitable. After it has made its findings, the Court will order the marriage of the parties dissolved and the maiden or prior name of the wife restored if she so desires.

 Is my Divorce Final that Day?

Yes, provided the parties have agreed to waive the twenty-day appeal period.

Can I have my Maiden Name Restored?

 Yes. As part of an Uncontested Hearing, you may request that the Court restore your maiden or prior name. While the restoration of that name is a valid Court Order, there is still follow-up work to be done such as going to the DMV or Social Security Office.

 Are there any Final Documents that I need?

Yes. You should keep copies of all of the Uncontested Documents in a safe place. It is also advisable to obtain Certified Copies of your Judgment File and Certificate of Dissolution of Marriage. You may need these documents to prove that you are divorced or to complete the process of restoring your prior name. At Broder & Orland LLC, we will prepare and send to you a packet of all Uncontested Documents.

At Broder & Orland LLC, we have extensive experience in settling cases and attending Uncontested Hearings throughout Connecticut, including Stamford, Bridgeport, Danbury, and New Haven. Uncontested Hearings may seem intimidating, but our skilled and compassionate attorneys will ensure that you are adequately prepared to bring your case to a conclusion.

 

HEALTH INSURANCE COVERAGE DURING AND AFTER DIVORCE IN CONNECTICUT

This Week’s Blog by Jaime S. Dursht.

 

Typically families and couples rely on a single health insurance coverage plan, either through the spouse’s employer or privately, to maintain coverage for the entire family. Once a Judgment of Divorce is entered, the non-subscribing spouse is no longer eligible for coverage under the former spouse’s policy.

DURING THE DIVORCE

Many divorce clients in Fairfield County, such as Greenwich or Darien, have life insurance policies, or their spouses do. At the inception of the divorce case, it is important for both sides to ensure that whatever life insurance policies exist at the time of the filing are maintained throughout the divorce case. Life insurance policies owned by a party should be disclosed on his or her Financial Affidavit, but it is common practice for divorce attorneys in Fairfield County, Connecticut to request copies of all life insurance policies as part of their discovery requests. By reviewing the policies, the client and the attorney can discover what the terms of the policies are and what the coverage is, which is important to know for settlement negotiations and trial preparation. For example, if a party owns a term policy, one needs to know when the policy ends and if the premiums increase after a certain date.

Continue reading “HEALTH INSURANCE COVERAGE DURING AND AFTER DIVORCE IN CONNECTICUT”

What Happens at a Preargument Conference in a Connecticut Family Law Appeal?

This Week’s Blog by Sarah E. Murray.

What is a Preargument Conference?

In most appeals of civil cases in Connecticut, including family law and divorce cases, a Preargument Conference is required prior to the appeal progressing to the briefing and oral argument stages. 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 in lieu of continuing with the appeal. Because an appeal can be a long, expensive process that usually follows an already extensive period of litigation, the Preargument Conference is an opportunity to avoid continuing litigation in favor of the finality of a settlement.

The Preargument Conference can also provide an opportunity to narrow the issues presented for appeal if the case cannot be globally settled. In discussing the pending appellate issues with the judge at the Preargument Conference, he or she can provide helpful insight into the likelihood of success on appeal. If it is appropriate for the case to be transferred to the Connecticut Supreme Court, the Preargument Conference judge has the authority to recommend that as well.

When is the Preargument Conference Scheduled?

In most family law cases, the Appellate Court will schedule the case for a Preargument Conference prior to briefs being due; so, if the case settles, the conference avoids the parties having to incur significant legal fees for the research and drafting of the brief. Within a few months of an appeal being filed, counsel for the parties will typically receive a notice or letter notifying them of the assigned time and place for the Preargument Conference.

Where does a Preargument Conference Take Place?

The Preargument Conference usually takes place at a different courthouse from the courthouse where your case was tried. On the day of the Preargument Conference, the assigned judge meets with counsel in chambers. It is rare, though not unheard of, for the judge to meet with the parties.

Do I Have to Attend the Preargument Conference?

The short answer to this question is: Yes. According to Connecticut Practice Book Section 63-10, which governs Preargument Conferences: “Unless other arrangements have been approved in advance by the conference judge, parties shall be present at the conference site and available for consultation.” The primary reason that parties must be present for Preargument Conferences is so that they can actively participate in any settlement negotiations and authorize their counsel to enter into a settlement of the case. If a case settles during a Preargument Conference, the Preargument Conference judge has the authority to enter an agreement into the record that day, and the parties must be present in Court in such an event.

Who Attends the Preargument Conference?

Parties and their appellate counsel must attend the Preargument Conference as a rule (see above). At Broder & Orland LLC, we find it is useful for trial counsel, if different from appellate counsel, to attend as well, as he or she can sometimes provide helpful input regarding the case and potential avenues for settlement. If there are any other professionals or advisors, financial or otherwise, who can aid in settling the case, it may be helpful for them to attend or be available by telephone to discuss any settlement offers.

What Should I Do to Prepare for a Preargument Conference?

It is helpful to meet or speak with your trial and appellate counsel prior to a Preargument Conference to discuss any settlement offer that you authorize to be made at or before the conference, as well as the strengths and weaknesses of both sides’ cases. If you are the appellant (i.e., the person taking the appeal), you should decide before the Preargument Conference what, if any, settlement you would consider in order to withdraw your appeal. As with any settlement negotiation, you should determine your “best case” scenario as well as your bottom line.

If you are the appellee (i.e., the person defending against the appeal), you may question why, as the person who is not appealing the final judgment in your case, you should consider settling. There are many reasons why an appellee could or should consider settling the case, such as: 1) having the finality of a settled judgment; 2) avoiding the time, expense, and uncertainty of further litigation; and 3) avoiding a reversal of the judgment in your case if that is a real possibility. The appellee should consider in advance of a Preargument Conference any concessions he or she would be willing to make in order for the appeal to be withdrawn.

What Happens to the Appeal if the Case is Settled at the Preargument Conference?

Any global settlement at the Preargument Conference should include a statement that the appeal will be withdrawn with prejudice upon acceptance of the settlement agreement by the trial court.

What Happens after the Preargument Conference if the Case Does Not Settle?

Even if you do not settle the case at the Preargument Conference, your case can still be settled at any time before the appeal is decided by the Appellate Court. If the case is not settled that the Preargument Conference, the appellant must begin preparation of his or her brief, as the deadline for submission usually falls within approximately 45 days of the Preargument Conference. The Preargument Conference judge does have the authority to extend the time for the filing of the appellant’s brief in the event that the appellate counsel needs more time or in the event that the parties request additional time to attempt to settle the case.

Broder and Orland LLC provides appellate representation in addition to litigating family and divorce cases 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.

Why Taking Divorce Advice From Friends Can Be Dangerous

This Week’s Blog by Lauren M. Healy.

 

Scared. Lonely. Angry. Sad. Vulnerable. Just a few of the emotions that you may feel when you are going through a divorce. It is no wonder that our clients often look to friends and family, especially those who have also been divorced, to provide comfort and support during a difficult time. After all, it is friends and family who have your best interest at heart. Why, then, should your divorce attorney be cautioning you against taking such advice?

Unrealistic Expectations

Probably the most common mistake that people make when taking the advice from friends, colleagues or acquaintances about divorce is assuming that all Connecticut divorces are treated the same way. For example, if your friend who was married for the same amount of time as you received lifetime alimony in her divorce, shouldn’t you receive the same? Even the most innocuous conversations about other people’s divorces can set unreasonable or unrealistic expectations. In reality, settlement outcomes, and trial decisions for that matter, are largely fact specific. While there are particular statutes that provide criteria for a judge consider when determining alimony and property division, the actual application of that statutory criteria is different in every case. There are so many different factors that come into play that it is downright risky to assume that your case will result in the same outcome as any other case. Your attorney is the best person to advise you about how your case is likely to be resolved.

Not All Divorces Are Created Equal

It is important to work with your attorney to create a strategy for your case that is determined based on the facts and goals of your family. It is common for clients to feel pressure from outside sources, be it family, friends or other advisors, to make demands or act in a certain manner. Taking strategic advice from non-attorneys, no matter how well-meaning, can backfire because they most likely do not understand all of the intricacies involved. While it can be helpful to consider the input of outside advisors, remember that such advice might be entirely inconsistent with the facts of your case or the applicable law. Your attorney is looking at the big picture, including your needs, your goals as well as the likelihood of achieving certain outcomes. It can be extremely helpful to put these advisors in touch with your attorney, so that there can be collaboration and understanding with regard to the possible and likely resolutions of your case.

You Hired Us For A Reason. Let Us Do Our job!

You went through the process of carefully vetting your attorney and you hired us for a reason—to guide you through the legal process of divorce, and to provide you with the knowledge and power to make decisions that are best for you. Listen to us! We have particular insight, not just in the laws of the state of Connecticut, but also into the background of the Judges, court system and opposing counsel. While you may not always want to take our advice, at least make sure you understand it, before rejecting it. In the end, know that the decision will be yours, as the client.

At Broder & Orland LLC, we are sensitive to the unique facts of every case. We encourage the inclusion and participation of different support systems for our clients and will often create a team approach, along with therapists and financial professionals, in order to best achieve a positive resolution for our client.

Connecticut Divorce Differences

This Week’s Blog by Jaime S. Dursht.

 

Is Property Division in a Connecticut Divorce Different from Other States?

It is commonly assumed by people who are contemplating divorce that particular types of assets will be considered separate and will not included in the marital estate, and thus not shared with one’s spouse.  Divorce laws differ from state to state, and Connecticut’s approach to property division happens to be unlike that of the majority of states that do characterize certain property as separate from the outset of a divorce.

What is the Court’s Approach to Dividing Property in a Connecticut Divorce?

In Connecticut, a three-step analysis is applied by courts to equitably divide property.  First, the asset is classified to determine whether it is property within the meaning of Connecticut General Statutes 46b-81. Second, the value of the asset is considered, and what the appropriate valuation method is.  Third, the equitable distribution of the property is decided.

Although this system of property division is referred to as an “equitable distribution” scheme, as it is in many other states, there is a significant difference in that Connecticut does not “limit, either by timing or method of acquisition or by source of funds” the property that is characterized as marital and subject to the court’s power to divide.  Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

Thus, property is not automatically classified as separate, regardless of when the property was acquired, whose name it is titled in, or the method of acquisition.  Below are common examples.

Are Premarital Assets Considered Separate Property in a Connecticut Divorce?

Property acquired prior to the marriage will not automatically be characterized as separate.  If you owned a house, an art collection, or your own business before you married your spouse,  these assets will not be set aside as nonmarital property, they will be considered part of the marital estate.  Depending on the overall marital estate, a court may or may not award the premarital property to the original owner.

Are Retirement Accounts Considered Separate Property in a Connecticut Divorce?

The 401(K), the IRA, pension, restricted stock units, or any other type of employment related benefit that you acquired before your marriage will be included in the marital estate regardless of sole legal ownership.  Depending on the sufficiency of the collective assets to meet the needs of the parties, a court may allocate solely titled retirement assets to the titled owner to reduce the number of account divisions especially if transaction fees are involved. However, it is very common to divide all retirement accounts 50/50.

Are Inherited Assets Considered Separate Property in a Connecticut Divorce?

Inheritances, whether real property or stock accounts, are not designated as separate property in Connecticut as they may be in many other states.  Inherited assets are included in the marital estate in Connecticut.  There may be equitable reasons to allocate one’s inheritance to the titled owner, but not until the entire marital estate and statutory factors of Conn. Gen. Stat. 46b-81 are considered.

Are Future Inheritances Considered Part of the Marital Estate in a Connecticut Divorce?

Anticipated future inheritances expected from people who are alive are not considered property within the meaning of C.G.S. 46b-81.  Courts cases addressing this issue have determined that the marital estate does not include interests that are unvested or merely expected.

When Are Assets Valued in a Connecticut Divorce?

Unlike other states, in Connecticut, assets are valued on or as close as possible to the date of dissolution rather than the date the action was filed.  This is based on the principle that financial awards and orders should be based on the current financial circumstances of the parties.

How are Assets Equitably Divided in a Connecticut Divorce?

Connecticut courts have wide discretion to allocate marital assets to either spouse so long as   statutory criteria is considered.  “When deciding to whom to assign property to, the court shall consider the length of the marriage, the causes for the … dissolution of the marriage … the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of the parties and the opportunity of each for future acquisition of capital assets and income.”  Conn. Gen. Stat. 46b-81.

The court is not required to give equal weight to each factor, nor is the court required to provide its reasoning as to which factor may have influenced its decision in making an equitable division.  Caffe v. Caffe, 240 Conn. 79 (1997). The courts have also refused to adopt a presumption of equal division.  Rivnak v. Rivnak, 99 Conn. App. 326 (2007).  Thus, each divorce is determined on a case-by-case basis according to its facts and it is important not to draw conclusions based on broad information derived from sources that are not specific to Connecticut.

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 methods of valuation to optimize financial circumstances moving forward.

  

“Double Dipping” Considerations in a Divorce When a Business Interest is at Issue

This Week’s Blog by Andrew M. Eliot.

 

In some divorce cases, a business (or an interest in a business) that is owned by one spouse, and from which he or she receives income, also constitutes an asset to which a value must be ascribed so that the asset can be distributed between the parties in some manner as part of an overall division of property. In instances where both the value of a business interest must be divided, and an award of alimony in favor of the non-titled spouse might also be appropriate, the concept of “double dipping” must be carefully considered in order to avoid potential inequities that could otherwise result when resolving the two separate, but sometimes interrelated issues, of property distribution and spousal support.

What is Double Dipping Generally

Generally speaking, the concept of “double-dipping” refers to a situation in which one spouse is unfairly paid twice for a single asset; once in the context of property division and a second time as part of a spousal support award.

How Can Double Dipping Occur when a Business Interest is Being Divided?

When the value of a business interest must be divided in a divorce, there are a variety of valuation methodologies that can be employed to determine the value of the interest for property distribution purposes. While an exploration into the various valuation methodologies is beyond the scope of this article, one common valuation approach that is employed in the divorce context (and stated in very simplistic terms) is for the value of the business interest to be calculated as a function of the entity’s future stream of expected income.   It is in this context that “double-dipping” issues are most likely to arise.

Specifically, double dipping concerns can arise if the same cash flows that are used to determine the overall value of a spouse’s business interest are also considered a component of that spouse’s income for purposes of calculating spousal support. Stated differently, when a business is valued based upon the entity’s expected income stream, it would constitute double dipping to both distribute the value of the business and then also base spousal support on the full amount of income the business produces.

How Can Double Dipping be Avoided

While there is a variety of ways to address double dipping concerns that may arise when a business interest is being valued and divided, one common methodology is for a “reasonable compensation” or “replacement compensation,” figure to be attributed to the business owning spouse. This figure represents the hypothetical amount that the business would pay to an unrelated person to perform the same function as the business owning spouse. Then, in determining what amount of income earned by that spouse is available for spousal support purposes, only the “reasonable compensation” amount utilized, which would necessarily be some amount less than the business owning spouse’s total earnings. Relatedly, in determining a value for the business interest, the “reasonable compensation” amount is subtracted out from the business cash flows that are used to determine the overall value of a spouse’s business interest. As a result of this process (commonly referred to as “normalizing income”), the higher the reasonable compensation figure attributed to the business-owning spouse is, the lower the value of the business will be for distribution purposes and, conversely, the lower the reasonable compensation figure attributed to the business-owning spouse is, the higher the value of the business will be for distribution purposes.

Are Forensic Experts Utilized Where Double Dipping Issues Might Arise

Yes. In cases where business valuation and/or potential double dipping issues arise, it is crucial to involve a business valuation expert with expertise in these areas. Such experts can assist clients and attorneys in wading through and understanding these often complex and thorny issues.

Cases involving distribution of business interests and double dipping concerns are often complex and, in order to be handled properly, require a great deal of expertise and attention. At Broder & Orland LLC, we have extensive experience handling matters involving these issues and are poised to help clients achieve favorable and fair results when these issues arise.