Tag: westport

How are Social Security Benefits Treated in a Connecticut Divorce Case?

This Week’s Blog by Jaime S. Dursht

Social Security benefits are not considered a marital asset and are therefore not subject to division in a Connecticut marital dissolution action.

Are Social Security Benefits an Asset of the Marriage Subject to Division?

Future Social Security benefits are governed by federal law which specifically prohibits the transfer and/or assignability of the benefit. (Social Security Act, 42 U.S. Code § 407)  The United States Supreme Court has held that the right to receive Social Security benefits does not constitute property.  State courts hold that federal law preempts state property laws that would otherwise subject Social Security benefits to classification as marital property for division.  

Are Social Security Benefits Considered in Computing Alimony?

If Social Security benefits are in pay status and being received, then it is considered a current source of income and included in the determination of support payable under the alimony statute.

Can Social Security be Garnished to Pay Alimony and/or Child Support?

Yes.  In 1975, Congress carved out an exception for alimony and child support from the prohibition of subjecting Social Security benefit funds to execution, levy, attachment, garnishment, or other legal process.  In cases involving a judgment for unpaid alimony, the Social Security Act permits garnishment of benefits for the judgment as well as court costs and penalties. 

Does an Ex-Spouse Have a Right to Claim the Former Spouse’s Social Security Benefit?

Yes, if you meet the following criteria:

  • Age 62
  • Unmarried
  • Divorced from someone entitled to receive Social Security benefits
  • The marriage had been for at least 10 years

You are eligible to apply for benefits on your former spouse’s benefit even if he or she has not retired, and as long as you divorced at least two years before applying.  If you are entitled to your own Social Security benefits, your benefit amount must be less than you would receive based on your ex-spouse’s record, and you will be paid the higher of the two benefits, but not both.  Also, this would have no effect on the benefits your ex-spouse is eligible to receive.

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 available sources of income in advising our clients about establishing a financial plan.

Imputing Income for Child Support Purposes

This Week’s Blog by Andy M. Eliot

How is Child Support Generally Determined in Connecticut?

In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula which yields a presumptively correct weekly child support obligation that one parent must pay to the other.

What Does Voluntary “Underemployment” Mean?

Voluntary underemployment occurs when a parent (whether it be the child support obligor or the parent receiving child support) voluntarily earns less income then he or she is capable of earning based upon his or her education, training and past earnings.  Consider, for example, a scenario in which a child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue to pursue a far less lucrative career as a musician; this would be an example of “voluntary underemployment.”

Do Courts Have Any Means to Redress Voluntary Underemployment in Issuing Child Support Awards?

Yes.  In such circumstances, courts have the discretion to attribute or “impute” income to a parent (whether it be the parent paying child support, the parent receiving child support, or both) for purposes of determining child support obligations.  In other words, when plugging a parent’s income into the mathematical child support formula set forth in the Connecticut Child Support Guidelines, courts may utilize an income figure that reflects the amount of income that a parent could potentially be earning (commonly referred to as “earning capacity”), rather than the amount the parent is actually earning at the time.

How do Courts Determine what Amount of Income to Impute to a Party?

In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ.  Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination.  However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health.

Are Experts Ever Used to Determine Earning Capacity?

Yes.  In cases where earning capacity is an issue, it is common for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.

Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise.  At Broder & Orland LLC, we have extensive experience handling matters where earning capacity is at issue and have a well-established track record of achieving favorable results for our clients in such matters.

How to Catch a Cheater

This Week’s Blog by Christopher J. DeMattie

As technology rapidly advances, more and more of our daily activities are uploaded to our many electronic devices.  Information is becoming more permanent, and the electronic trail left behind is growing.  It is extremely difficult to keep an electronic secret, so if your spouse is cheating on you there is a good chance you will be able find out from his or her electronic devices.  In the recent past, the first places to look would be phone logs, text messages, and e-mails, but there are many more clever places to look.

What are the Best Apps to Catch a Cheating Spouse?

iPhone Notes – Most people use this application to take notes or set reminders.  However, did you know you can share your notes with another person?  When you share your notes with another person, each enabled user can edit and view the specific notes page.  So instead of sending text messages or e-mails, a cheating spouse can communicate with his or her paramour through the notes app without leaving an electronic transmission trail such as a text message or e-mail.

Screen Time – This new feature for the iPhone tracks how much time a user spends on his or her iPhone each day.  The data is further broken-down by minutes spent on each app, messages transmitted, and phone calls.  So if your spouse is spending more time than usual text messaging or if he or she is spending time using a new app, especially a new messaging app (WeChat, WhatsApp, Slack, or Messenger) it may be an indication he or she is hiding something.

Uber – Unlike texts and e-mails, absent completely deleting the Uber app, there is no way to delete the trip history.  So by accessing the Uber app you can see your spouse’s entire ride history.

Vault / KeepSafe – Vault (iPhone) and KeepSafe (Android) are apps that let you store electronic data, including photos and videos, in a password protected folder on your phone or tablet.

iCloud – Is accessed by inputting an Apple ID and password.  Per Apple, iCloud backups include nearly all data and settings stored on the device. iCloud backups do not include data stored in other cloud services, like Gmail.

Google Maps – If you access Google Maps and select “Your Timeline” you can all of the places the user has visited on any given date and time.  Like the Uber app, reviewing the “Your Timeline” can be very instructive on reconstructing a person’s day.

How do I Legally View my Spouse’s Electronic Devices?

The first step is generally to serve a Request for Production of Documents or Request for Inspection of an Electronic Device.  By making the Request, you put your spouse on notice as to the materials you are requesting to review and/or inspect.  Your spouse then has an obligation to produce the requested materials, which could include a forensic or mirrored copied of his or her iPhone, laptop, or tablet.  However, your spouse could assert various objections to the Request(s), and absent an agreement, the Court will determine the scope of discovery.

In addition, you may serve on your spouse and his or her cell phone provider, a “Litigation Hold Notice,” directing each to preserve several categories of electronically stored information including text messages.  Generally, cell phone providers only retain the content of text messages for three to five days depending on the provider, so it is unlikely you will be able to subpoena the content of your spouse’s past text messages.  However, if a “Litigation Hold Notice” has been served, it is likely the content, time, and location of the text message will be discovered.

Before engaging in any electronic surveillance, be advised that there are many federal and state laws related to stored electronic communications.   It is advisable to consult with an attorney to verify that you do not engage in any unlawful activities related to your spouse’s electronically stored information.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  As experienced divorce trial lawyers we can advise you how to legally obtain your spouse’s electronically stored information or how to protect your own.

What Should I Expect at my Initial Divorce Consultation in Connecticut?

This Week’s Blog by Sarah E. Murray

What is the Purpose of the Initial Divorce Consultation?

After having made the difficult decision to contact an attorney regarding divorce and after making an appointment to meet with him or her, it is natural to feel apprehensive or to be unsure of what to expect at that initial meeting.  Most Fairfield County divorce clients have many questions about the divorce process, possible outcomes, and how Connecticut law applies to his or her case.  Those are all appropriate issues to be discussed in an initial consultation.  One of the primary purposes of the initial divorce consultation, in addition to information gathering, is for the potential client and the potential lawyer to meet in order to determine whether both the client and the lawyer are comfortable working together.  As a client, it is important to feel that you can trust your divorce attorney and that there is good communication between you and your divorce attorney.  The initial consultation is a good opportunity for both the lawyer and client to assess whether they can have a good working relationship during a sometimes difficult process.  

What Do I Need to Bring with Me to My First Meeting with a Potential Divorce Lawyer?

Among other things, it is important for a divorce attorney to have as much information as possible so that he or she can accurately evaluate the case and give the appropriate advice.  Of course, if you were the person served with divorce papers, you should bring those papers to the initial consult so that the attorney can review them and explain them to you.  At the first meeting with a divorce lawyer, however, it is not required that you bring any other documents with you.  The divorce attorney will listen to you and ask questions in order to gain a better understanding of the basic facts of the case.  There will be plenty of time after the initial consultation for you to provide relevant documentation to your lawyer.  While you do not need to bring documents with you to the initial consult, there are some documents that you can bring to make the meeting more productive.  For example, if there is a Prenuptial or Postnuptial Agreement in your case, you should bring a copy of that to the meeting.  Most top Fairfield County divorce attorneys will even ask to see the document in advance of the meeting so that he or she can review it beforehand.  Some people also like to bring relevant financial documentation to the meeting, such as tax returns and bank and brokerage accounts, so that specific financial questions they have can be addressed.

Is What I Discuss at My Initial Divorce Consultation Confidential?

The short answer to this question is: yes.  The information you provide to a potential divorce lawyer, even if you do not hire that person, is kept confidential.  Keep in mind, however, the caveat discussed below.

Should I Bring My Friend (or Family Member) to the Initial Consultation Meeting?

It is normal for people to want emotional support at an initial divorce consultation.  If a third party is present in a meeting between a potential client and a lawyer, that presence can jeopardize the confidentiality of the meeting, as confidentiality and attorney-client privilege typically only extend to the potential client.  If you deem it critical to bring a friend or family member with you to the initial consultation, you can discuss how to handle it with the potential divorce lawyer with whom you are meeting.  You and the divorce attorney may decide to have the friend or family member wait in the reception area during all or part of the meeting in order to protect the information discussed.

What are the General Topics Discussed during the Initial Consult?

In general terms, the best initial consultations cover the following topics, as applicable to the facts of your case: the divorce process in Connecticut, custody of minor children and parenting plans, discovery of relevant information during the divorce, division of assets and liabilities, and alimony and child support.  Top Fairfield County attorneys will also discuss with you strategy concerns and any other issues that may be particular to your case.  In order for the divorce lawyer to give you good advice, he or she will ask many questions, ranging from basic to very personal.  The more information you provide, the more you and a potential divorce attorney can begin crafting a timeline and strategy for your case.

What Questions Should I Ask at the Initial Divorce Consultation?

There is no question too insignificant for an initial divorce consult.  A good divorce attorney will want you to feel comfortable that your questions have been answered and will welcome any and all questions that you have.  There is very little that experienced divorce attorneys have not heard or been asked; so, do not be shy about sharing information or asking questions.  Beyond the typical questions about the divorce process, how long divorces in Connecticut typically last, and what to expect with respect to parenting and finances, you should also ask questions about the financial relationship between you and the potential lawyer.  You will want to know the attorney’s hourly rate, requested retainer or other fee arrangements, and how frequently you will receive invoices reflecting time spent on your case.    

At Broder & Orland LLC, we pride ourselves on our informative initial consultations, which typically initiate an effective attorney-client relationship that lasts throughout the case.  We strive to advise potential clients in a forthright manner so that they feel comfortable about what to expect from the divorce process in Connecticut and so that they understand their options moving forward.

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.

 

Rebuttal Experts in a Connecticut Divorce

This Week’s Blog by Christopher J. DeMattie

What Is A Rebuttal Expert?

Generally, in a Connecticut divorce matter, a rebuttal expert is an individual whom you hire to challenge the opinions of your spouse’s expert.  For example, the individual’s field of expertise could be in the following areas: (a) real estate valuation, (b) business valuation, (c) tax, (d) earning capacity, (e) alcoholism, (f) coercive control, (g) child development, or (h) mental health.

What Are The Duties Of A Rebuttal Expert?

A rebuttal expert could be hired to assist in a number of roles.  The engagement could also evolve as your matter progresses.  The two major roles are: (a) consulting and (b) challenging the opinion of a competing expert.

In the consulting role, the rebuttal expert could assist you with your case in a number of ways.  First, the expert could assist you and your attorneys with developing a strategy.  For example, you could hire a tax lawyer or accountant to help analyze the tax impact of certain assets you could receive as part of the division or property, or you could hire a real estate appraiser to determine if your spouse’s stated value of the marital residence conforms to the actual fair market value of the property. Second, the rebuttal expert could assist with critiquing the report and analysis of your spouse’s expert.  For example, if your spouse disclosed an expert who issued a report concluding he or she was subjected to coercive control, your rebuttal expert would assist in analyzing the report to determine if the proper forensic steps were taken to support the conclusion.  Further, a rebuttal expert could help you and your attorneys develop questions for the deposition or cross-examination of your spouse’s expert to highlight the weaknesses in that expert’s opinion.

In the challenging role, your rebuttal expert follows the proper protocols in his or her field and provides a formal opinion on the same subject matter as your spouse’s expert.  As stated above, the opinion could be: (a) the fair market value of the marital residence in Greenwich is $4,000,000, (b) your spouse has an earning capacity of $250,000, or (c) is it in your children’s best interest to relocate out of the state of Connecticut. After your expert reaches an opinion, you must formally disclose that person in advance of trial in accordance with the rules of practice or Court Orders.

Sometimes, your rebuttal expert could begin as a consultant, but as your case progresses you formally disclose your rebuttal expert and have this person issue a formal report and potentially testify at trial.  It then becomes “a battle of the experts.”

When Would I Need A Rebuttal Expert?

In some matters at Broder & Orland LLC we hire a rebuttal expert as soon as a divorce is filed. It may be necessary to help tailor a specific strategy for your case, especially if a unique issue is identified early on. In other matters, we do not hire a rebuttal expert until after your spouse formally discloses his or her expert.  Even then, the engagement of your rebuttal expert could be short if your expert agrees with the opinion of your spouse’s expert.  Further, sometimes your spouse’s expert and your rebuttal expert could communicate (only with you and your spouse’s consent), and they could agree on an opinion for settlement purposes.  In some matters, experts play a pivotal role in settlement.

At Broder & Orland LLC our team approach extends to the experts we assemble on a case-by-case basis. In cases involving high net worth individuals, we routinely work with business valuation experts, financial experts and forensic accountants. In cases involving custody, visitation and parenting plans, we often work with private investigators, parenting coordinators, psychiatrists, therapists and social workers.  By partnering with these professionals, we are sure to obtain a clear understanding of the specific issues of each case. This is true, for example, in a divorce involving a complex business valuation, drug and alcohol abuse by a parent, or custody considerations for a special needs child.

What is a Pretrial Conference and How Do I Prepare for One?

This Week’s Blog by Nicole M. DiGiose

  • In contested divorce proceedings, a Court will typically assign a case for a pretrial conference after all discovery has been completed and prior to assigning that case for trial.
  • A pretrial conference is a Court-mandated settlement meeting which occurs at the courthouse with a judge or special master.
  • Pretrial conferences are privileged settlement discussions. What occurs during a pretrial, including the content of any settlement offers, may not be introduced as evidence during a trial.

What is a Pretrial Conference?

A pretrial conference is a Court-mandated settlement meeting.  During a pretrial conference, your attorney will meet with your spouse’s attorney, as well as a judge or special master, who is an experienced matrimonial attorney who has volunteered his or her time. The meeting will take place in a conference room within the courthouse.  While you are required to be present for a pretrial conference, litigants typically do not actively participate in a pretrial conference.  During the pretrial conference, each attorney will present his or her view of the facts of the case, as well as each one’s proposal for settlement, to the judge or special master.  After hearing from both attorneys, the judge or special master will make a non-binding settlement recommendation.

When Will I Have a Pretrial Conference?

Pretrial conferences are regularly scheduled when parties enter into their Case Management Agreements.  A Case Management Agreement is entered into by both parties and their attorneys approximately ninety days after a divorce action has been commenced, and sets forth various dates by which certain tasks must be completed.  These tasks include discovery, depositions, and appraisals and valuations.  Pretrial conferences usually take place after all discovery has been completed, so as to allow each side to participate in an informed, meaningful settlement discussion. 

What Documents Must be Prepared for a Pretrial Conference?

According to the Superior Court for Family Matters Standing Orders, seven days before a pretrial conference, both sides must exchange a non-argumentative memorandum that sets forth the basic facts of the case, such as the ages of both parties and the minor children, if any, the length of the marriage, the causes for the breakdown of the marriage, and information related to each party’s education and income. Additionally, each side must exchange proposed orders, which outline the relief that party is seeking, including the amount and duration of alimony, the amount of child support, the division of property and the assignment of debts, and how parenting issues will be resolved.  Lastly, each side must submit current, sworn financial affidavits, and, in cases involving children, proposed Child Support Guidelines.

What Happens After a Pretrial Conference?

What occurs during a pretrial conference is privileged and therefore may not be introduced as evidence at a trial.  After the pretrial conference, your attorney will discuss the judge’s or special master’s recommendation with you.  Pretrial conferences often open the door for further settlement discussions to continue.  If a settlement is reached, your attorneys will prepare a Separation Agreement, which will outline the terms of the agreement.  You will then proceed to an Uncontested Divorce Hearing in order to conclude your divorce matter.  If a settlement is not reached, your case will be assigned for trial.

At Broder & Orland LLC, we have extensive experience in settling contested divorce matters, including at pretrial conferences throughout Fairfield County and Connecticut.  Our skilled attorneys will ensure that you are adequately prepared for a pretrial conference.

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.