Tag: Property Distribution

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.

The Financial Cost of Divorce

This Week’s Blog by Carole T. Orland

What will my Divorce Cost?

The short answer is that it is hard to know at the outset what a divorce will eventually cost.  Since virtually all divorce lawyers in Connecticut bill on an hourly rate, the cost is a function of time spent on the case. At Broder & Orland LLC, we have handled divorces ranging in cost from a few thousand to millions of dollars.

Is Cost Related to the Complexity of the Case? 

Not necessarily. Some of the more financially complex cases settle quickly when the parties, their counsel, and experts are sophisticated and are financially savvy. These cases sometimes involve a variety of compensation components, including for example, stock options, RSUs, SARs, phantom stock, and deferred compensation. While this can initially appear daunting, it doesn’t have to be if the parties are well-educated about income variants.

Will the Cost of my Divorce be Minimal if our Assets are Very Modest? 

We would hope so and at our firm we strive to make it cost-effective for our clients in every case. Unfortunately, different pressures can arise when the marital estate is relatively modest and there isn’t enough money for both parties to live their lives post-divorce in the manner they were doing so during their marriage. In these cases particularly, it is imperative to do a cost-benefit analysis and to be real about the results. 

Will Children’s Issues Increase the Cost of Divorce?

Quite possibly. It is in everyone’s best interest to settle on a realistic Parenting Plan as early as possible in the case. If that doesn’t happen, the Court will sometimes appoint a Guardian Ad Litem (GAL) as an investigatory arm of the Court whose role it is to report on the best interests of the children, or Attorney for Minor Children (AMC), who will act as an advocate for the children taking into consideration their best interests. The cost of these additional individuals will be borne by the marital estate and having them involved typically signals additional litigation and therefore, higher cost. 

What Other Factors can drive up the Costs of a Divorce? 

Divorce costs may spiral upward for many reasons, for example: one or both parties may not be cooperative in the discovery process or have unrealistic expectations.  Attorneys and clients may not be in sync about objectives and goals. The Court system is fraught with inherent delays and continuances mean more time and more money. 

What can I do to keep my Divorce Costs from Getting out of Control?

  • Hire a reputable and knowledgeable attorney.
  • Make sure you are always on the same page as to how your case is being handled.
  • Settle the kids’ issues as soon as possible. Attend to discovery deadlines.
  • If finances are complex, make sure to assemble a good team of experts who can educate you about the various components. In short, demystify the finances so you can move forward to settlement.
  • Be reasonable in negotiations with your spouse even if there are bad feelings, as is typically the case in divorces.
  • Pay attention to your monthly bills and your retainer status.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we strive to make our clients’ divorce cases cost efficient, whether the case involves a modest marital estate or is a high net-worth or high-income earner matter. We constantly counsel our clients on the cost-benefit of decisions as the case progresses. Our goal is to achieve for our clients the best possible outcome at the most reasonable cost.

Common Law Marriage and Cohabitation Agreements in Connecticut

This Week’s Blog by Andy M. Eliot

Is Common Law Marriage Recognized in Connecticut?

No.  It is a common misconception that if unmarried couples reside together for a long enough period of time in Connecticut, a “Common Law” marriage is created, from which certain legal rights (such as alimony or property distribution rights) arise.  In fact, Common Law marriage is not recognized in Connecticut and, accordingly, no legal rights or consequences are accorded to unmarried couples who may reside together in a long-term romantic relationship.

Are there any Exceptions to the General Rule that Common Law Marriage is not Recognized in Connecticut?

There is one narrow exception to this general rule.  Generally, the validity of a marriage in Connecticut is determined by the law of the state in which the relationship was created.  Accordingly, if a couple established a Common Law marriage in a state that recognizes such relationships, the Common Law marriage that was established in the other state will be recognized in Connecticut.  The law of the state in which the common law marriage was claimed to have been contracted will determine the existence and validity of such a relationship.

May Unmarried Couples Enter into Binding Legal Agreements from Which Financial Rights and Obligations Arise?

Yes.  It is not uncommon for couples who are involved in a committed relationship, but who do not wish or intend to marry, to desire that certain financial rights and obligations that might otherwise only arise by way of marriage apply to them.  While cohabitation alone does not create any contractual relationship between cohabitating parties, or impose other legal duties upon such parties, in such scenarios the parties may enter into a written agreement, commonly referred to as a “Cohabitation Agreement.”

What is a Cohabitation Agreement?

A Cohabitation Agreement is a contract between unmarried cohabitants which allows the parties to contract to certain financial rights and obligations arising from their relationship, notwithstanding their intention to remain unmarried.  The state of Connecticut recognizes the legal validity of such agreements.  Typically, such agreements address rights and obligations pertaining to financial support (akin to alimony), or distribution of property in the event the relationship ends.

Are Cohabitation Agreements Enforceable in the same Manner as Divorce Agreements?

NoAlthough Cohabitation Agreements are recognized in Connecticut, financial disputes between unmarried cohabitants emanating from such agreements must be resolved by means outside the statutory scheme for dissolution of marriage.  Specifically, this means that Cohabitation Agreements must be considered under general contract principles.

At Broder & Orland LLC, we have experience drafting and negotiating Cohabitation Agreements for clients throughout Fairfield County and Connecticut.

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.