Tag: Fairfield County Divorce

Issues Related to the Marital Residence During a Divorce

This Week’s Blog by Nicole M. DiGiose

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

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

Can the Marital Residence be Sold During a Divorce?

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

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

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

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

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

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

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

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

What is the Significance of the Case Management Agreement in a Connecticut Divorce?

This Week’s Blog by Sarah E. Murray

  • The Case Management Agreement is a document that must be filed in every Connecticut divorce case.
  • The Case Management Agreement includes important dates for your case, but these dates are not set in stone.
  • You and your spouse can agree to proceed with your case more quickly than the deadlines found in your Case Management Agreement.

What is the Case Management Agreement in a Connecticut Divorce Case?  

The Case Management Agreement is a document that must be filed in every contested Connecticut divorce case.  It is an agreement between the parties and their counsel that sets forth whether the case is a contested custody action, or a case in which parenting issues have been resolved. The Court wants to know at a relatively early point in the case whether there are contested parenting issues that require Court intervention.  If parenting issues are resolved, then the Case Management Agreement will state that only financial issues exist in the case.

The Case Management Agreement also includes dates by which discovery requests will be made, discovery completed, depositions taken, appraisals done, and expert disclosures made. This Agreement sets forth the approximate date that the parties anticipate being ready for a settlement conference. The Case Management Agreement needs to be filed with the Court on or before the Case Management Date, which is approximately 90 days after the divorce case is filed.

Each Case Management Agreement is tailored to the facts of the particular case, taking into account the issues in the case, how complicated the case is, and how quickly the parties want the case to move.  In cases where the parties cannot agree on the dates in their Case Management Agreement, a judge will decide what the dates are.  It is rare for parties not to agree on the dates in their Case Management Agreement, especially when competent Fairfield County divorce attorneys are involved.

Why Aren’t We Abiding by the Dates in my Case Management Agreement?

At Broder & Orland LLC, we take the position that the dates in the Case Management Agreement are deadlines that a Court could impose, even if Courts do not impose them in every instance.  The general purpose of the Case Management Agreement is to put in writing both parties’ expectations for moving through the discovery phase of the divorce case so that meaningful settlement discussions can begin.

Many times, judges in Connecticut do not enforce the exact dates in a Case Management Agreement with respect to deadlines for discovery requests and depositions because there can be particular reasons or developments in a case that warrant some flexibility.  For example, though the Case Management Agreement may say that discovery requests must be made by a certain date, a Court is unlikely to preclude a discovery request after that deadline, particularly where new information has been discovered that leads to additional documents being needed.

One area where the Case Management Agreement does provide an enforceable deadline is with respect to expert disclosures.  If the parties are using, or expect to use, experts, such as business valuation experts, real estate appraisers, or earning capacity experts, the Case Management Agreement will establish the deadline by which those experts must be formally disclosed to the other side.  Unless the parties and their counsel mutually agree to disclose their experts pursuant to a different schedule, the expert disclosure dates in the Case Management Agreement will be strictly enforced by most judges.

Can My Case Move More Quickly Than the Dates Set Forth in My Case Management Agreement?

Westport and Stamford divorce clients will be pleased to know that they can settle their case at any time, including prior to the date that the Case Management Agreement needs to be submitted.  At Broder & Orland LLC, we encourage our clients to provide discovery to the other side promptly, prior to the deadline set forth in the Case Management Agreement, so the case does not get stalled while the other side pursues missing or late discovery.  If both parties are motivated to complete their case earlier than the dates in their Case Management Agreement and cooperate to ensure that they do so, it will typically get done at a faster pace.

Annulment vs. Divorce

This Week’s Blog by Andrew M. Eliot

  • Annulment is a frequently misunderstood legal concept. In contrast to a divorce, which ends a valid marriage, an annulment is a decree declaring that a valid marriage never existed
  • Similar to most jurisdictions, annulments are available in Connecticut only in certain limited circumstances, and are exceedingly rare
  • A legal (or civil) annulment is different from, and should not be confused with, a religious annulment. A legal annulment is granted by a court, whereas a religious annulment is granted by a religious institution and has no legal impact on marital status in the eyes of the state of Connecticut

As matrimonial attorneys practicing in towns such as Greenwich and Darien well know, annulment is a frequently misunderstood legal concept. The legal distinction between a divorce and an annulment is as follows: whereas a divorce ends a valid, existing marriage, an annulment is a decree declaring that no valid marriage ever occurred in the first place.

In order to qualify for an annulment in Connecticut, a party must be able to prove one of a series of available grounds (i.e., reasons) for an annulment. Notably, the various grounds for annulment (set forth below) fall into one of two distinct categories: (1) those which render the purported marriage null and void from the outset; and (2) those which render the purported marriage merely “voidable,” meaning that the marriage is viewed as valid unless and until one of the parties actively seeks to have it set aside in an annulment proceeding.

The following grounds for annulment render a purported marriage “void”:

  • Consanguinity – The spouses are related by blood, or have “affinity,” (meaning a close family relationship).  Specifically, no person can marry a parent, grandparent, child, grandchild, sibling, parent’s sibling, sibling’s child, stepparent, or stepchild;
  • Bigamy – One spouse is already legally married to someone else at the time of the second marriage.

The following grounds for annulment render a purported marriage “voidable”:

  • One spouse was mentally incompetent at the time of the marriage ceremony;
  • A person who is not legally authorized to perform a wedding performed the marriage ceremony;
  • One or both spouses consented to the marriage only because of force, fraud, or duress from another person;
  • One spouse suffers from a health problem or physical condition that goes to the essence of the marriage (i.e., a husband conceals a medical problem with impotence that prevents the couple from having sexual relations).

Notably, there are several common misconceptions about annulment. For example, simply being married to someone for a very short period of time does not qualify a person or a couple for annulment, as many people assume.  Moreover, contrary to what many people believe, even where annulment is available as an option, it is not typically a quicker and less expensive process than a divorce. In fact, an annulment proceeding is a fairly complex process that can easily take the same amount of time, effort, and resources as a divorce might.  One reason for this is that in annulment proceeding, a plaintiff must prove the grounds for the annulment by “clear and convincing evidence,” (a high legal standard of proof).  This is in stark contrast to a divorce, where a plaintiff does not need to prove any grounds for a divorce at all, but instead merely needs to allege that the marriage has “broken down irretrievably.”  Finally, and this is a common misconception somewhat unique to Connecticut, obtaining an annulment in Connecticut does not preclude a court from dividing assets or liabilities between the parties.  While in most state courts are not authorized to divide property or debts as part of an annulment case (the logic being that there cannot be a marital estate if there wasn’t a valid marriage), in Connecticut courts are permitted to equitably divide a couple’s assets and liabilities in deciding an annulment case, just like in a divorce.

At Broder & Orland LLC, we have extensive experience with annulment law and proceedings and can help clients properly evaluate whether annulment is available to them as an option and, if so, whether it is an option that is worth pursuing as a practical matter, as opposed to pursuing a divorce.

Does Cheating Affect Child Support and Child Custody? Eric J. Broder Quoted in Romper, April 2018

 

Read both articles now:

Does Cheating Affect Child Support? Here’s When the Unfaithful Party May Have to Fork Over More

Does Cheating Affect Child Custody Arrangements? Here’s When Infidelity is Taken Into Consideration

Should I Depose My Spouse in Our Divorce Action?

This Week’s Blog by Carole T. Orland

In all divorces cases in Connecticut a party has the right to depose his or her spouse pursuant to C.G.S.Sections 52-148a-152 and Connecticut Practice Book Sections 13-26. 13-331. A Deposition is a proceeding whereby the deponent is questioned and provides testimony under oath. It typically occurs in the office of the lawyer representing the party who is taking the Deposition. The spouse is either subpoenaed (served by a marshal) to appear or appears pursuant to a Notice of Deposition served on the spouse’s attorney. Most often, attached to the subpoena or the Notice is a schedule with document requests. These requests may include documents relating to a broad swath of items that relate to finances, custody and/or any issues in the case.

Some of these documents may have been produced prior to the Deposition and need not be produced again, except for updates if applicable. If the requests seek documents that are objectionable, for example if they are too broad or are harassing, the deponent’s lawyer can object and may file a Motion for Protective Order seeking protection from “annoyance, embarrassment, oppression or undue burden or expense.” Connecticut Practice Book Section 13-5. The Court will then decide what must be produced or not.

For all practical purposes the deposing attorney can ask almost any question that is tangentially related to the case and the deponent must answer unless he or she asserts a privilege such as attorney/client, therapist/patient or self-incrimination, or if the question is merely intended to harass the deponent.

There is no proscribed time for the length of a Deposition. Rarely is it less than a couple of hours but it may go on for several days, consecutively or over time, depending on the complexity of the case. The deposing party is entitled to be present but is not required to be there.

So the question arises, “Should I depose my spouse?” It is a decision that must be discussed thoroughly with your lawyer and experienced lawyers in Westport and Greenwich can assist you in making a strategic decision. Reasons for deposing your spouse may include: the efficiency of obtaining testimony under oath; the need to get documents and have them explained; the benefit of locking in testimony that can be used at trial; the opportunity for counsel to get a feel for the deponent’s veracity and demeanor; and providing the deponent with a reality check of the examination and scrutiny he or she will undergo at trial. However, there may be situations where you will not need to or want to depose your spouse, for example if he or she: has been forthright and attentive about supplying information and documents; no further explanations are required with regard to the documents; there is no suspicion of untrustworthy behavior; and you and your spouse are on amicable terms. Cost is also a factor to think about, as Depositions are time consuming and costly. You should also consider that taking your spouse’s Deposition can be an emotional event for both of you and can increase hostilities, which may then negatively affect future negotiations and settlement.

Our lawyers at Broder & Orland LLC have vast experience with Depositions and can effectively help you weigh the options and guide you to the correct decision when it comes to deposing your spouse.