Tag: fairfield county attorneys

Are Communications With My Therapist or Marriage Counselor Admissible in Court?

This Week’s Blog by Lauren M. Healy

  • There are statutes in Connecticut that protect communications between individuals and certain treatment providers
  • The communications between a psychiatrist and patient as well as a psychologist and patient may be privileged if the communications occurred during diagnosis or treatment
  • Communications with a marriage or family therapist are privileged as long as the counselor has met certain certification qualifications

Divorce litigants in Fairfield County, Connecticut often ask whether or not statements made during therapy are subject to disclosure during divorce proceedings. Sometimes, people are afraid of saying something in marriage counseling or therapy that may “hurt” their divorce case. Most of the time, this concern is unnecessary. The laws of the state of Connecticut recognize that there are certain communications between individuals which should remain private and confidential. In fact, there are statutes in Connecticut which specifically provide criteria for determining whether communications with psychologists, psychiatrists, and marriage or family therapists are privileged. Whether or not communications are privileged really depends on the circumstances of the therapy as well as the qualifications of the therapist. For this reason, it can be helpful for potential clients to understand the nuances of the privilege in advance of engaging a marriage counselor or therapist.

Psychologist/Patient Privilege

Connecticut General Statutes §52-146(c) details exactly what is considered a privileged communication between psychologist and patient. Generally speaking, for a communication between psychologist and patient to be considered as privileged, it must have occurred during consultation for purposes of diagnosis and treatment. This means that if you have a casual conversation with friend who is a psychologist, for example, you should not expect that communication to be privileged. The statute further requires that the psychologist be licensed to practice pursuant to state law.

Psychiatrist/Patient Privilege

Similar to the psychologist-patient privilege, the privilege between a psychiatrist and patient extends to any written or oral communications, or records, related to the patient’s diagnosis or treatment. The relevant statute, Conn. Gen. Stat. §52-142(c)(a), defines a psychiatrist as someone who licensed to practice medicine and spends a substantial portion of his or her time devoted to the practice of psychiatry.

Marriage and Family Therapist

It would be very difficult to make any progress in marriage therapy if each party was afraid that his or her words could ultimately be used against that party. Accordingly, there is a statute in Connecticut that specifically addresses those communications that are made in marriage counseling or in family therapy. According to Conn. Gen. Stat. S52-146p, communications (written or oral) with a marriage or family therapist are considered privileged as long as the therapist is certified by the Connecticut Department of Health Services as a Marital and Family Therapist.

Waiving the Statutory Privilege

Generally, in order for privileged communications to be admissible in Court, there must be consent of the patient. In family or marriage therapy, which includes more than one person in treatment, communications remain confidential unless all of the parties to the therapy consent to the therapist disclosing communications. However, the statutes provide some exceptions to the requirement for consent, in limited circumstances. One example is if a party has introduced his or her psychological condition as an element of his or her claim, such as in a custody dispute, the communications may be disclosed without consent.

At Broder & Orland LLC we are experienced in divorce cases that involve psychologists, psychiatrists and marriage counselors and have litigated issues regarding privileged communications in courts throughout the state, including Stamford, Bridgeport, and Danbury.

How Does My Divorce Impact My Last Will and Testament?

This Week’s Blog by Jaime S. Dursht

  • A divorce has the legal effect of invalidating a Will in its entirety if it was executed prior to January 1, 1977
  • If the Will was executed after January 1, 1977, only those provisions affecting an ex-spouse are invalidated and the remaining provisions stay in effect
  • The invalidated provisions of the Will are treated as revoked by the testator and the Will is interpreted as though the ex-spouse predeceased the testator
  • A divorce has no effect on the named Executors, Guardians and Trustees who are responsible for carrying out specific duties in accordance with the testator’s intent

Many married couples have what is called a “Sweetheart Will” which is a term that refers to a common inheritance plan between spouses whereby the surviving spouse receives the entire estate of the deceased spouse.  Since a Last Will and Testament is intended to carry out an individual’s final wishes as to the distribution of one’s estate, an ex-spouse would almost always fall outside the group of intended beneficiaries following divorce.

Prior to 1977 a divorce had the legal effect of revoking or invalidating the entire will by operation of law.  This rule still applies to wills executed before January 1, 1977.  The law changed in 1976 so that wills executed on or after January 1, 1977 are not revoked in their entirety by divorce.  Instead, those provisions that benefit an ex-spouse are treated as though the ex-spouse predeceased the testator, and the remaining provisions that are unaffected by divorce stay in effect.

Conn. Gen. Stat. Section 45a-257c provides, “If, after executing a will, the testator’s marriage is terminated by dissolution, divorce or annulment, the dissolution …shall revoke any distribution or appointment of property made by the will to the former spouse … unless the will expressly provides otherwise.  Property prevented from passing to a former spouse due to revocation by dissolution … shall pass as if the former spouse failed to survive the testator, and other provisions conferring power or office on the former spouse shall be interpreted as if the spouse failed to survive the testator.”

Making sure your estate planning documents are reflective of your last wishes with respect to the distribution of your estate is often an overlooked step following divorce.   Although the law provides for revocation by divorce to eliminate an ex-spouse’s interest, there may still be problems created regarding previously nominated executors, trustees and guardians who may no longer be appropriate or willing to carry out their duties.

With offices located in Greenwich and Westport, the attorneys at Broder & Orland LLC offer comprehensive guidance through the wide range of legal issues that arise during divorce as well as those that may be impacted as a consequence.  We are knowledgeable in identifying issues that may arise post-dissolution, and whenever appropriate refer our clients to Trusts and Estates attorneys to make sure estate plans may be carried out as intended.

Waiver of Estate Rights in a Prenuptial Agreement

This Week’s Blog by Andrew M. Eliot

  • In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive a minimum share of your estate (the “elective share”) upon your death
  • 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
  • A spouse’s right to an “elective share” can be waived in a prenuptial agreement
  • It is not uncommon for parties entering into a prenuptial agreement to waive estate rights. Such waivers are most prevalent in matters where a party has children from a prior relationship, and wishes to ensure that his or her offspring will receive the entirety of that party’s estate upon his or her death

Typically, clients who are interested in entering into a prenuptial agreement are, at a minimum, seeking to protect their assets from a soon-to-be spouse in the event of a divorce.  However, as top divorce and matrimonial attorneys practicing in towns such as Greenwich and Westport will attest, many of our clients, particularly those who have accumulated substantial wealth prior to their anticipated marriage, are also interested in protecting their assets from a soon-to-be spouse in the event of their death. This sentiment most commonly arises in matters where a client is entering into a marriage later in life, and wishes to preserve his or her estate for a child or children from a previous marriage or relationship.  In such a scenario, prenuptial (or postnuptial) agreements can be a critical tool for estate planning purposes, as they are the only means by which a party can ensure that a spouse will not receive a share of his or her estate upon their death.

In order to fully understand this issue, it is first necessary to understand the basics regarding spousal inheritance rights.  In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive at least some minimum share of your estate in the event of your death, even if your Last Will and Testament states otherwise. (The amount of this minimum share—commonly referred to as the “elective share”—varies from state to state). Stated differently, absent an agreement in writing to the contrary, you may not, as a matter of law, disinherit your spouse. Instead, upon your death, your spouse will have the option of (a) receiving whatever was bequeathed to him or her in your will; or (b) retaining his or her elective share by “electing against the will.”  In Connecticut, a spouse who chooses to claim the elective share is entitled to the lifetime use of one-third of the value of all real and personal property owned by the other spouse at the time of his or her death, after the payment of all debts and charges against the estate (commonly referred to as a “one-third life estate”).

Notably, however, a spouse’s right to an “elective share” can be waived in a prenuptial agreement, assuming that the agreement is otherwise valid.  It is in this context that a prenuptial agreement can be used as an estate planning tool and, specifically, as a means of protecting assets from a spouse in the event of a divorce.

At Broder & Orland LLC, we have extensive experience negotiating and drafting legally enforceable prenuptial agreements at every level of complexity and sophistication, and can help ensure that your intentions with respect to your spouse’s inheritance rights are specifically addressed in your prenuptial agreement.

Prenuptial Agreements in Connecticut: Financial Disclosure

This Week’s Blog by Sarah E. Murray

At Broder & Orland LLC, we tell any person who seeks our advice in connection with the drafting and negotiation of a Prenuptial Agreement that the financial disclosures accompanying the Prenuptial Agreement are one of the most important aspects of the agreement. The reason that the financial disclosures are so important is because General Statutes Section 46b-36g(a)(3), which is applicable to all Prenuptial Agreements entered into after October 1, 1995, states that a Prenuptial Agreement will not be enforceable against a party opposing its enforcement if that party proves that, before the agreement was executed, he or she was not provided with “fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party.” In other words, a party to a Prenuptial Agreement can seek to have the Prenuptial Agreement set aside in the event of divorce if he or she can prove that the other party (typically the moneyed spouse) did not adequately disclose his or her assets or income.

Lack of adequate financial disclosure is one of the most common reasons that Fairfield County divorce litigants cite in favor of a claim that a Prenuptial Agreement should not be enforced. It is for this reason that parties to a Prenuptial Agreement need to take care in preparing their financial disclosures, which are typically attached to the Prenuptial Agreement. The question that clients ask is: What constitutes adequate financial disclosure for a Connecticut Prenuptial Agreement to be enforced? While there is no one answer, a review of Connecticut case law on this issue provides some guidance.

One of the more instructive cases on the issue of financial disclosure is Friezo v. Friezo, 281 Conn. 166 (2007). In that case, the trial court had found that the parties’ Prenuptial Agreement was unenforceable based on inadequate financial disclosure and the Wife not having reasonable opportunity to consult with counsel. The Husband appealed. The Supreme Court reversed the trial court’s orders, finding that the Prenuptial Agreement was enforceable. At the time of the divorce, the estate was worth approximately $23 million, including over $6.5 million of the Husband’s premarital assets. The Wife had claimed that her attorney did not show her the Husband’s financial disclosure at the time they met regarding the Prenuptial Agreement, though it was in his possession at that time. His financial disclosure showed his assets, one liability, and also reflected his income. The draft originally provided to the Wife’s attorney was the one attached to and incorporated into the parties’ Prenuptial Agreement. At trial, the Wife did testify that she had acquired substantial knowledge regarding the Husband’s finances prior to the parties’ marriage. The Wife claimed that the signing of the Prenuptial Agreement, which was 24 hours before the wedding, was the first time that she had seen the Husband’s financial disclosure.

The Supreme Court examined for the first time the meaning of “fair and reasonable” financial disclosure, as referenced in the statute, stating: “’[F]air and reasonable’ disclosure refers to the nature, extent and accuracy of the information to be disclosed, and not to extraneous factors such as the timing of the disclosure.” Id. at 183. The Court noted that the statute does not require that the financial disclosures be appended to the agreement. Id. The Supreme Court also looked to McHugh v. McHugh, 181 Conn. 482 (1980), the case governing the enforcement of Prenuptial Agreements entered into prior to October 1, 1995, in its analysis. In McHugh, the Supreme Court had pointed out that a party cannot knowingly waive his or her rights with respect to another party’s income or assets without sufficient knowledge as to the other party’s financial circumstances. “[F]inancial disclosure in Connecticut must be understood as a burden to inform borne solely by the disclosing party.” Id. Therefore, the focus is on the actions of the disclosing party, rather than on the party to whom disclosure is being made. The Supreme Court further stated:

The overwhelming majority of jurisdictions that apply this standard do not require financial disclosure to be exact or precise….We agree with the majority of jurisdictions that a fair and reasonable financial disclosure requires each contracting party to provide the other with a general approximation of their income, assets and liabilities, and that a written schedule appended to the agreement itself, although not absolutely necessary, is the most effective method of satisfying the statutory obligation in most circumstances.

Id. at 189-91 (Citations omitted; emphasis added)

In Friezo, the Supreme Court ultimately determined that, under the McHugh analysis discussed herein, the Husband’s financial disclosure was “more than adequate” to allow the Wife to waive her statutory rights, as it provided her with his gross income from all sources for the year prior and listed his assets (most of which were valued individually) and liabilities. The trial court had not found that the financial disclosure was inaccurate or incomplete, but rather that the Wife did not have the expertise to understand it.  The Supreme Court responded “[w]hen the burden is on each party to inform, as established in McHugh, the test for adequate disclosure need not take into account or depend on the capacity of the receiving party to understand or digest the information received.”  Friezo, 281 Conn. at 192.  Furthermore, whether the Wife had sufficient time to review the disclosure does not go to the issue of whether it was fair and reasonable.  Id. at 194.  Justice Norcott dissented, stating that he would have found the financial disclosure to be inadequate for failing to fully explain the assets listed (particularly certain partnership interests).

In Oldani v. Oldani, 132 Conn. App. 609, 624 (2012), the trial court determined that the parties’ Prenuptial Agreement was enforceable. At the time of the signing, financial disclosures were attached to the Prenuptial Agreement. The Husband’s net worth at that time was over $5 million. His disclosure listed assets and liabilities itemized by category, along with schedules that provided additional details regarding bank accounts, notes, loans. He also included a schedule listing 11 commercial real estate properties in which he had an interest, including his percentage ownership, the replacement value, the mortgage debt, annual mortgage payments, and the net equity. The disclosure also included the gross rents received, as well as the annual operating expenses and “NOI” (net operating income). The disclosure did not specifically set forth his income, but the trial court found that there was sufficient information from which to extrapolate it. The Appellate Court found that the Husband had failed to provide a fair and reasonable disclosure of his income prior to the Prenuptial Agreement being signed. The word “income” did not even appear on the disclosure.

In contrast, in Beyor v. Beyor, 158 Conn. App. 752 (2015), the trial court enforced the parties’ Prenuptial Agreement and the Wife appealed, claiming that the Husband had failed to disclose his Schedule E income on his financial disclosure. The Appellate Court compared this case to Oldani, and noted that what is fair and reasonable financial disclosure may depend on the circumstances of the case.  Id. at 764. The Appellate Court found that there was fair and reasonable financial disclosure. Although the Husband had not disclosed his Schedule E income, he had disclosed the business interests that were the source of that income and gave a value to those interests.

The above cases are just a sampling of cases regarding the sufficiency of financial disclosures in connection with Connecticut Prenuptial Agreements. As the case law discussed in this article demonstrates, each case is fact specific, but, generally speaking, the more comprehensive the financial disclosure, the better.

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.

What State Has Jurisdiction over Custody of My Children? Part II

The previous post in this series discussed the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and this post will continue with the Parental Kidnapping Prevention Act (“PKPA”).

PART II – PKPA

The PKPA, codified at 28 U.S.C. §1738A, which was signed into law by President Jimmy Carter on December 28, 1980, establishes federal standards for the determination of child custody jurisdiction.  It requires a State to give full faith and credit to any custody or visitation determination made by another State, if the determination was made consistently with the provisions of the PKPA.  Further, a State may not modify a determination made by a State of another State, unless the issuing State no long has jurisdiction or if it declined to exercise jurisdiction.   A determination is consistent with the provisions of the PKPA only if:

  1. The Court has jurisdiction under its local laws (Connecticut’s local law is its version of the UCCJEA); AND
  2. One of the following conditions are met:

a.) Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

b.) (i) it appears that no other State would have jurisdiction under subparagraph (a), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c.) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

d.) (i) it appears that no other State would have jurisdiction under subparagraph (a), (b), (c), or (e), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

e.) The court has continuing jurisdiction pursuant to subsection (d) of this section.

 

Subsection (d) is a catchall provision which confers jurisdiction to a State that made a determination consistently with the provisions of the PKPA if it has jurisdiction under its local laws and it remains the residence of the child or a parent.

At first glance, it may appear that the provisions of the UCCJEA and PKPA are identical, however there are significant differences.  First, the PKPA involves a two part analysis, whereas there is only one analysis under the UCCJEA.  Thus, a determination could be valid under the UCCJEA (or local laws of a State), but it could be invalid under the PKPA if the provisions of the PKPA are stricter than the local laws of the issuing State.

Second, the PKPA interjects the concept of “best interest of the child” when referring to significant connection and substantial evidence, whereas the UCCJEA does not directly consider “best interest of the child.” The “best interest of the child” standard provides the court with broad discretion to exercise jurisdiction if it determines that there is no “home state.”  Thus, it may be necessary during a PKPA hearing to elicit testimony and offer exhibits related to the “best interests of the child”.  Contrary to popular belief, the PKPA statutory analysis does not always end with “home state” status.

The attorneys at Broder & Orland LLC are experienced with the PKPA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.

What is a Guardian ad Litem?

A Guardian ad Litem, often referred to as “GAL,” is an individual appointed by the Court to ensure that the minor child’s best interests are represented during a parenting or custody dispute. Not every divorce case or custody dispute requires the appointment of a Guardian ad Litem. In fact, if at all possible, the Court tends to encourage parties to resolve parenting disagreements without the involvement of third parties.  When parties are unable to agree on custody or a parenting access arrangement, or if there are specific parenting issues that simply cannot be resolved, a Guardian ad Litem may be appointed to either assist the parties in reaching an agreement, or to inform the Court as to the best interest of the minor child.

A Guardian ad Litem may be appointed upon the Motion (request) of one party, the agreement of both parties, or when a Judge determines that a Guardian ad Litem is necessary in the case.  The role of a Guardian ad Litem is usually served by an attorney or a mental health professional. In order to be appointed, the Guardian ad Litem must be qualified by the Connecticut Judicial Branch after completing specific course training. Furthermore, the State of Connecticut Judicial Branch has developed a code of conduct which outlines the obligations, expectations and responsibilities of a Guardian ad Litem.

Although a Guardian ad Litem may be an attorney by profession, the role of a Guardian ad Litem is not the same as that of an Attorney for the Minor Child. An Attorney for the Minor Child, sometimes called “AMC,” is legal counsel for the minor child, both representing the child’s legal interest while considering the child’s best interest.  Conversely, the Guardian ad Litem does not provide legal representation to the child or the parties. No privilege exists regarding communications between the Guardian ad Litem and the child or the Guardian ad Litem and the parties. The Guardian ad Litem may serve, and often does, as a witness in the case at Hearings and Trial, and can testify about things that were said by the child and the parties, to the extend these communications are admissible under our Rules of Evidence.

At the time of the appointment, the Court will issue an Order with the specific duties of the Guardian ad Litem, which depend on the issues that are outstanding in the case. These duties may include, but are not limited to: investigating facts, interviewing the parties and the child, reviewing files and records, speaking to teachers, coaches and others, speaking to medical professionals, participating in Court hearings, making recommendations to the Court, and encouraging and facilitating the settlement of disputes.

While the Guardian ad Litem should be fair and impartial, this does not mean that he or she is not allowed to have an opinion or make recommendations.  Sometimes these recommendations will align more with one party’s philosophy of the case than the other’s. While the Court is not bound to accept the recommendations of the Guardian ad Litem, and the GAL does not make decisions for the Court, his or her recommendations and testimony are usually carefully considered by the Court when making a final determination about parenting issues.

The fees of the Guardian ad Litem are paid by the parties. The initial retainer amount and the hourly fee will be established by the Court at the time the Guardian ad Litem is appointed. If the parties cannot agree on an appropriate payment arrangement, the Court will make an order after reviewing the financial circumstances of the parties, including reviewing the parties’ signed, sworn Financial Affidavits.

The decision as to whether to appoint a Guardian ad Litem and then choosing the right person to serve as Guardian ad Litem is extremely important to the tenor and outcome of any custody dispute. The attorneys at Broder & Orland LLC are experienced in serving as Guardians ad Litem and litigating and settling cases where a Guardian ad Litem has been appointed.