Tag: preparing for divorce

Grounds for Divorce in Connecticut

This Week’s Blog by Christopher J. DeMattie

What are the Grounds for Divorce in Connecticut?

To commence a divorce action in Connecticut, the Plaintiff must plead a statutory approved ground for seeking the divorce.  You cannot simply plead: “I do not want to be married.”  If a Court finds sufficient evidence to support a finding that the ground occurred, it has jurisdiction to grant the divorce.  Pursuant to Connecticut General Statutes § 46b-40(c), the only permissible grounds are as follows:

  1. The marriage has broken down irretrievably;
  2. The parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled;
  3. For purposes of this statute, “adultery” means voluntary sexual intercourse between a married person and a person other than such person’s spouse;
  4. Fraudulent contract;
  5. Willful desertion for one year with total neglect of duty;
  6. Seven years’ absence, during all of which period the absent party has not been heard from;
  7. Habitual intemperance;
  8. Intolerable cruelty;
  9. Sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; and
  10. Legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.

Can I Plead More than One Ground in a Divorce? 

Yes, you can plead more than one ground in a divorce.  However, except for rare circumstances, a party almost always solely pleads “the marriage has broken down irretrievably.”  This is because it requires minimal proof, i.e. one question “Has your marriage broken down irretrievably?”, whereas the other grounds may require substantial discovery, opposition, time, and resources to ultimately arrive at the same result, which is the granting of a divorce.

Is Connecticut a Fault Divorce State? 

No, Connecticut is a “no fault” divorce state.   In 1973 the Connecticut Legislature passed Public Act 73-373 which amended Connecticut General Statutes (“C.G.S.”) §46-32 (now known as §46b-40) to permit a divorce upon a finding that the marriage has broken down irretrievably.  Commonly, this is known as the “no-fault” divorce statute.  In Joy v. Joy, 178 Conn. 254, 256, (1979) the Connecticut Supreme Court held that the statute was constitutional.

Can Infidelity Affect Alimony?

Yes, the cause of the breakdown of the marriage can affect alimony and property orders.  Thus, even though a Court is not required to determine if a party was a fault for the marriage ending, the Court may consider the causes of the breakdown of the marriage when making financial orders.  Courts have found substance abuse, physical abuse, dissipation of assets in contemplation of divorce, and/or infidelity to be the cause of the breakdown of the marriage and have financially compensated the spouse who did not cause the breakdown of the marriage.  Conversely, Courts have found a spouse caused the breakdown of the marriage but did not financially compensate the other spouse.  This discrepancy is due to the Court having wide discretion when applying the numerous statutory criteria to the unique facts and circumstances of each case.

Broder & Orland LLC, with offices in Westport and Greenwich, concentrates specifically in the areas of family law, matrimonial law, and divorce. As experienced divorce trial lawyers we understand how to effectively present “cause of the breakdown” issues to the Court, as well as how to “value” your case for settlement purposes.

 

Divorce in Connecticut: The Guardian Ad Litem (GAL)

This Week’s Blog by Eric J. Broder

What is a Guardian Ad Litem in a Connecticut Divorce Case?

In the event that the parties cannot reach a resolution on parenting or custodial matters, a Guardian Ad Litem (GAL) is often appointed by the Court, either directly by the Judge or after agreement between the parties and counsel. The primary function of a GAL is to promote and protect the child(ren)’s best interests throughout the divorce case.

Who qualifies to be a Guardian Ad Litem?

To qualify, a GAL must be an attorney in good standing who is licensed to practice law in the state of Connecticut, or a mental health professional in good standing who is licensed by the Connecticut Department of Public Health in the areas of clinical social work, marriage and family therapy, professional counseling, psychology, or psychiatry.

Further, pursuant to Connecticut Practice Book Section 25-62 there is a training program which must be completed in order for a person to qualify as a GAL.

What is the Role of the Guardian Ad Litem?

The primary role of a GAL is to determine what is in the best interests of the child(ren) with respect to custody and/or a parenting plan. The GAL will investigate all relative facts and claims, meet with the parties, the child(ren), and any relevant third parties such as teachers, childcare providers, coaches, and/or medical professionals/therapists treating the child(ren) and the parties.

The GAL will participate in court hearings and possibly testify. If the matter goes to trial, the GAL will make recommendations to the court as to how the outstanding child(ren) related issues should be decided. In my opinion, the primary function of a GAL, in addition to the above, is to strongly encourage the resolution of disputes between the parties. 

Who Pays for the Guardian Ad Litem?

The GAL is paid for by the parties. The court will review the financial affidavits to determine the percentage each party will contribute to the GAL’s fees. If the parties cannot afford a GAL’s rate there is a sliding scale that the court can apply thereby limiting the hourly rate of the GAL.

What is the Difference Between a Guardian Ad Litem and an Attorney For the Minor Child (AMC)?

The basic difference is that a GAL represents the child(ren)’s best interests and, while the AMC supports the best interest of the child(ren), he or she primarily represents the child(ren)’s legal interests.  Generally speaking, a GAL is appointed for younger children, while an AMC is appointed for older children.

Another notable difference between a GAL and an AMC is that a GAL may testify as a witness at a hearing or trial and an AMC may not.

Can a Guardian Ad Litem be Removed from a Case?

While it is an extremely rare occurrence, it is possible for a GAL to be removed from a case. In order to do so, a party must file a motion with the court to seek the GAL’s removal and prove that the GAL is not acting in the best interests of the child(ren) and has a prejudice and/or bias against one of the parties.

At Broder & Orland LLC we carefully analyze and make all efforts to choose the most appropriate GAL for our client as well as his/her child(ren). Our hope and expectation is that a GAL will be able to work with the parties and their counsel directly to achieve a settlement which first and foremost benefits the child(ren).

Second Opinions in Connecticut Divorce Cases

This Week’s Blog by Carole T. Orland

Is it Appropriate to Get a Second Opinion in my Divorce Case? 

Divorce litigation is difficult. It’s costly both emotionally and financially. It is not uncommon for clients to feel overwhelmed by the process and at times disenchanted with their attorneys. Given that your divorce is one of the most impactful events in your life, you want to get it right. And sometimes, that means getting a second opinion just as you would for example, when it comes to medical care.

What Can I Expect From a Second Opinion? 

Often the second opinion will be confirmatory. If you have wisely chosen your divorce attorney, likely he or she has done everything consistent with your best interests. Eliciting a second opinion from another well respected attorney will make you feel more comfortable that your divorce is on the right path. Sometimes a second opinion with a well qualified attorney will enlighten you as to alternative approaches creative solutions, or issues that require attention.

Should I Discuss Getting a Second Opinion with my Current Divorce Attorney? 

Ideally, if you think a second opinion is warranted, you should discuss it with your current attorney instead of circumventing him or her. Seasoned attorneys have confidence in their abilities but also recognize that there are times when another set of well-trained eyes on your case can be very constructive. There may even be situations where your current divorce attorney will suggest that you get another opinion. You should consider the recommendation that you do so in the best light, not as a signal that your attorney is giving up on you.

What Information Should I Provide to the Second Opinion Attorney? 

When you meet with an attorney for a second opinion you should make sure to provide that attorney in advance with as much information as you can in order for that meeting to be meaningful. This might include, for example: pleadings, Financial Affidavits, Case Management Agreements, any Court rulings, Briefs and Memoranda of Law, Pre-Trial Conference memoranda, reports of experts, appraisals, discovery responses, custody and psychological evaluations, financial documents, settlement offers, and pertinent correspondence.

Schedule enough time with the second opinion attorney to be able to discuss all of the issues. It will also be helpful for you to bring your own written agenda items in order to address all your concerns. Make sure to take notes during the meeting. If you don’t understand something, ask again until you do. Leave the meeting with a clear understanding of all the items you wanted to discuss.

What Should I do After Receiving a Second Opinion?

Make an appointment with your current attorney to review what you have learned. Again, make sure there is enough time to discuss it all. Bring your notes with you. Remember, the point is not to challenge your attorney but to augment what both of you have previously addressed.

In most cases, if you carefully choose your initial attorney and then your second opinion attorney, you will find that you will want to stay with your original choice. While there is added cost to seeking another opinion, it is typically minimal compared to the overall cost of your case and really terrific value in that it will round out your knowledge, set you on a clearer path, and make you feel more comfortable.

If seeking a second opinion causes you to have concerns about continuing with your current attorney, you should discuss that with him or her in a very straightforward manner. Be up front about why you want to change attorneys and request that your attorney cooperate with successor counsel, whether it’s the second opinion attorney you met with or someone else. Do make sure to settle any outstanding bill with your current attorney before moving on. He or she may have a right to retain your file until you do so, but beyond that, it is the right thing to do and will start off your representation with your new attorney on the right foot.

At Broder & Orland LLC we recognize that certain divorce clients may want to seek a second opinion and on occasion we even initiate the suggestion that they do so. In certain cases we also provide second opinions with an appropriate protocol in place.

How Do I Commence an Action for Divorce in Connecticut?

This Week’s Blog by Nicole M. DiGiose

What Documents Must be Prepared and Served Upon my Spouse in order to Commence an Action for Divorce?

In order to commence an action for divorce in Connecticut, the following documents must be prepared and served upon your spouse: a Summons, a Complaint, a Notice of Automatic Orders, and a blank Appearance form.  

What is a Summons?

A Summons is a notice to a Defendant that he or she is being sued.  In a divorce case, a box will be checked indicating that the Plaintiff is seeking a dissolution of marriage from the Defendant.  The only information contained in a Summons is the location and address of the Court where the action will be heard, each party’s name and address, a Return Date, and a Case Management Date.  A Summons will be signed by your attorney.

What is a Complaint?

A Complaint sets forth the legal and factual basis for the divorce action.  The following information will be contained in a Complaint: each party’s name, including any maiden name(s), if applicable, a statement establishing the Court’s jurisdiction to hear the case, the names and dates of birth of any child(ren) under the age of twenty-three, a statement indicating whether either party or any child(ren) have received state aid and/or public assistance, and a statement setting forth the grounds for the divorce, and a statement that the marriage of the parties has broken down irretrievably.  A Complaint will also state, in very general terms, the relief sought from the other party.  A Complaint will be signed by your attorney.  

What are the Automatic Orders?

The Automatic Orders are “stand still” orders meant to maintain the status quo during the pendency of a divorce action with respect to financial matters, as well as child-related matters.  The Automatic Orders become binding on the Plaintiff when his or her attorney signs the initial documents, and they become binding upon the Defendant upon service.  

What is an Appearance Form?

An Appearance form will be completed by either by your spouse, if he or she chooses to represent him or herself, or by his or her attorney.  The Defendant’s Appearance indicates to the Plaintiff that the Defendant will be participating in the case.  It also ensures that the Defendant receives notice of all documents and pleadings filed in the action.  An Appearance will list the name and address of a self-represented party, or his or her attorney, as well as a statement as to whether that individual agrees to accept service of documents and pleadings electronically.

Who Serves the Initial Documents on my Spouse?

Initial papers for a divorce must be served by a State Marshal.

Must my Spouse be Served with the Initial Papers Personally?

Not necessarily.  If your spouse has already retained an attorney, it is possible that the initial papers may be served on his or her attorney, if that attorney is authorized to accept the initial papers on your spouse’s behalf.  If you spouse has not already retained an attorney, the initial papers must be served on your spouse.  This may be accomplished by having the initial papers personally served upon your spouse, or by having them left at your spouse’s usual place of abode.

What Happens After my Spouse is Served with the Initial Papers?

After your spouse has been served, the initial papers will be filed with the Court, together with proof that service has been made by a State Marshal.  The initial papers must be filed with the Court on or before the Return Date specified in the Summons and Complaint.    

At Broder & Orland LLC, we have extensive experience in commencing divorce actions throughout Fairfield County and Connecticut.  Our attorneys will ensure that you fully understand exactly what this process entails.