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DISSOLUTION OF MARRIAGE
LEGAL SEPARATION
MEDIATION PATERNITY
DISSOLUTION OF CIVIL UNION
ANNULMENT CHILD SUPPORT
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If you have been having marital problems for some period of time and have tried counseling and therapy, and nothing seems to work, you may wish to consider filing for a divorce. If you are not sure whether you want to file for divorce you may want to consider that the process is rather lengthy after you file the initial paperwork. It can take up to three months to schedule a final Court date. If you change your mind while your case is pending, you may withdraw your case from Court. Or you can place your case on reconciliation status for six months. During the reconciliation period you may utilize social workers employed by the State of Connecticut in order to try to mediate your issues or negotiate a final agreement.
In some cases you may wish to file for a legal separation. In a legal separation you continue to remain married and retain certain marital benefits such as health insurance. When you finalize your divorce your health insurance plan will drop your spouse from coverage. You will not be able to get remarried after a legal separation. In order to get remarried you will have to go back to Court and change your legal separation to a dissolution of marriage.
In some cases you may wish to file for dissolution of civil union. The divorce laws in the State of Connecticut treat a dissolution of civil union in the same manner as a dissolution of marriage. The process is not any different than if you were to obtain a dissolution of marriage.
In some cases you may wish to file for an annulment. In the State of Connecticut annulments are available to couples who have not consummated their marriage, or to a person who was somehow defrauded or tricked into marriage, or in a case where a person was paid to get married such as someone seeking to obtain United States citizenship.
In some cases you may wish to try mediation in order to work out the issues in your divorce. I am available for mediation services. Generally a couple would present all of the issues in the marriage to the mediator, who would attempt to work out a final agreement to be presented to the Judge for approval. If the parties cannot reach a resolution they would have to retain separate attorneys and file an action for divorce in Court.
In most cases a couple will reach a resolution of their various claims and enter into a separation agreement and avoid trial. In such a case the couple would have to pick a court date and a judge would approve their separation agreement.
In some cases a couple, without any legal representation, may enter into their own written agreement prior to the finalization of their divorce. Such agreements are completely unenforceable in a court of law. The agreement can only be enforced if it is signed by a judge.
If the couple cannot reach a final agreement then they must present all of their evidence before a judge, who will make orders concerning child support, alimony, visitation, custody, property distribution, etc… During the trial each spouse will testify before the Judge. Each spouse is allowed to present testimony or written evidence relevant to the issues of the divorce. In most cases, matters that occurred a substantial period of time prior to the date of the marriage will not be considered by the Judge. Most matters that occurred during a long period of cohabitation are generally not relevant to the divorce trial, as Connecticut does not recognize common law marriage.
Connecticut does not recognize common law marriage, so most matters that transpired between the couple prior to the marriage, during a period of cohabitation, would not be relevant in a divorce trial. If an unmarried couple purchased a house together, the couple would have to file a partition action, ie., a civil legal action for the sale of one person’s half interest in the house. The divorce laws would not apply in such a case. If one person gave the other person substantial monies towards the purchase of the house or paid the mortgage on a jointly held house, and the couple never got married, the couple would have to go to civil court to try to recover such monies. Unfortunately, in most cases of cohabitation where the couple never married, a Court will consider such payments as gifts and not loans, absent some written evidence or testimony of a loan agreement.
Once an action for dissolution of marriage is served on the other spouse, one is not allowed to transfer or sell property while the divorce is pending. All assets are considered jointly owned property, regardless of whose name the title of the asset is in. So either spouse can make a claim to the other spouse’s car, real estate, 401K, personal items, etc… The fact that all property is considered joint marital assets does not mean that the Judge will divide the property evenly. The Judge is free to divide property in any way that the Judge thinks is fair. If there is significant property that was acquired by one spouse prior to the marriage, and the marriage was very short in length, the Judge can order that all the property that was acquired prior to the marriage be awarded to the spouse who acquired said property.
If the married couple owns a house and does not have any children a Court may require one spouse to refinance the house and buy out the other spouse by paying a share of the equity accumulated during the marriage. Or, if the couple has children, a Court can require that the primary custodial parent live in the marital residence until the youngest child turns 18, at which time the custodial parent would be ordered to sell the house and divide the proceeds. Where the couple possesses significant assets the Court will consider the tax ramifications of selling property when making property distributions.
With regard to a 401K plan, pension, or IRA, the Court requires that a Qualified Domestic Relations Order (QDRO) be prepared. A Qualified Domestic Relations Order is a court order directing that the pension plan pay the other spouse some share of the plan when the wage earning spouse is eligible for retirement. When the owner of the pension fund retires and starts collecting income, the spouse will also collect some income at that time as well. The spouse does not get paid prior to the time that the other spouse retires and starts collecting income.
With regard to debts, the Court can order that one spouse contribute to the payment of a credit card debt that was incurred by the other spouse for items that went into the marriage, such as mortgage payments, upkeep for the house, etc… In some cases extensive debts can lead to marital disharmony which results in a divorce. A couple may want to consider filing bankruptcy in order to eliminate substantial debts before filing for a divorce. If one spouse incurred substantial debts during the marriage, that spouse may wish to consider filing for a single bankruptcy without the other spouse. In such a case a single bankruptcy filing would not have any effect on the other spouse’s credit report or credit rating. In most cases a bankruptcy filing would not have any effect on Court orders pertaining to the divorce. A spouse would still be obligated to pay child support and alimony even with a bankruptcy filing. A debt owed to an attorney appointed by the court to represent the interests of the minor child, or the bill for a guardian ad litem, is not dischargeable in bankruptcy. In terms of property distribution, if a spouse is to receive money or property from the other spouse at a future time, such property could be subject to claims of creditors if that spouse later decided to file for bankruptcy. A bankruptcy filing could be used as evidence of a substantial change in circumstances in order to modify child support or alimony orders after the divorce is finalized.
In some cases one spouse may agree to make the the monthly credit card payments that the other spouse had incurred after the dissolution of marriage. Or one spouse may agree to assume the credit card debt of the other spouse. Subsequent to the divorce the spouse who agreed to make the payments may decide, for whatever reason, file for bankruptcy. In such a case the spouse who filed for bankruptcy would still be responsible for the credit card debt he agreed to pay on behalf of the other spouse, and he could be held in contempt of Court if he or she failed to make such payments.
In the State of Connecticut a spouse is not required to prove fault in order to be granted a divorce by a Judge. Connecticut is a no-fault divorce State. But fault can be relevant when the Court makes property distribution orders. So if one spouse caused the breakdown of the marriage by committing adultery, or by engaging in abusive behavior, the other spouse can make a bigger claim on marital property. In such a case, all things being equal, the Judge may split the total marital assets 60-40 rather than 50-50.
Alimony can by awarded by a Judge to make one spouse pay the other over a set certain period of time. But alimony orders generally end when the other spouse either cohabits or gets remarried. A judge can order that one spouse pay to the other spouse one dollar a year in alimony. This order allows the issue of alimony to stay open so at a later date if there is a substantial change in circumstances a spouse can modify the alimony order to increase the one dollar a year. For example, if a spouse becomes disabled and loses his or her job after the dissolution of marriage, that spouse may go back to Court to try to increase alimony. To modify alimony one must show a substantial change in circumstances from the date that the couple finalized their divorce.
Alimony is generally not awarded if the spouse paying child support has no money left over each week after paying child support and his or her basic living expenses. When taking into consideration alimony a Judge looks at factors such as the length of the marriage, the earnings disparity between the couple, and whether one spouse made certain sacrifices during the length of the marriage that resulted in that spouse foregoing income. For example, a spouse may have quit his or her job in order to stay at home in order to raise children and now it is difficult for that spouse to find work. A Judge may order that some temporary alimony be paid until the other spouse is able to find work or until he or she retrains or completes school in order to find a different job. But a Judge generally will not order alimony if the spouse paying alimony has no disposable income after paying basic living expenses. Alimony terminates upon remarriage, death or cohabitation of the other spouse. Alimony is considered income to the receiving spouse for tax purposes, and is deductible by the person paying the alimony.
Gifts from parents and inheritance monies can be counted as joint property of the marital estate subject to the claim of the other spouse. In many cases a parent will provide a couple with a down payment towards the purchase of a house. At the time of the divorce the parent may regret having provided said monies and request that said monies be returned. The problem with such a claim is that the parent most likely signed a gift letter with the bank when the couple applied for a mortgage. Or the parent did not have the couple sign a note, mortgage or other document that would indicate that said monies were a loan rather than a gift. But even in such a case, a spouse is free to produce evidence of a loan, either through paperwork or through testimony, for a judge to consider in making orders of property distribution. A judge is free to believe the testimony of any witness and order that monies be allocated in order to compensate a parent.
In many cases the couple cannot agree to custody of the minor children. There are two types of custody in the State of Connecticut: physical custody and legal custody. In cases where the couple has good communication, the couple will agree to share joint legal custody of the minor children with one spouse having sole physical custody of the minor children. When the couple shares joint legal custody, each spouse has an equal input into the major life decisions of the minor child. It is rare for a couple to share physical custody. The Court prefers that children have consistency and live in one house during the week while attending school. On the weekends or during school vacations the non-custodial spouse will be able to have sleepovers and visitation with the minor children. Unless there is an agreement, the Court usually does not split up the children and have one child live with one parent and another child live with the other parent. In most cases the parties will agree to a visitation schedule that will mostly be weekends and school breaks for the non-custodial spouse. Religious and national holidays are usually alternated between the parties.
If the couple cannot agree on major decisions impacting the life of the minor child, such as schooling or medical treatment, the couple may go to Court and have a judge decide what is in the best interests of the minor child. If the couple cannot agree to physical custody or legal custody the couple may schedule a hearing and present evidence and testimony and have a Judge decide such issues. Before a hearing is scheduled to determine such issues, the couple will be required to attend mediation with family relation counselors. In some cases where custody is in dispute the Court will order that a Family Relations study be conducted. A Family Relations study can take up to six months to complete. A Family Relations study involves family therapists working for the State of Connecticut who will interview each parent, speak with the minor children, visit the homes of the parents, and obtain medical and schooling records and other relevant documents concerning the minor children.
In some cases the Court will require that a guardian ad litem or attorney be appointed to represent the interests of the minor child, interview the minor child and provide input for Family Relations Study. Usually the costs of the guardian ad litem or attorney for the minor child are split equally between the parties, depending on the earnings of the parties. At the end of the Family Relations study the Family Relations officer will prepare a report that will be submitted to the Judge for consideration. A family relations report will make recommendations as to custody and visitation in the best interests of the minor child. If a parent is not satisfied with the recommendations contained in the report, the parent is free to request a hearing before a judge. At such hearing the parent is allowed to present testimony before the judge who will decide custody and visitation. The judge is free to follow the recommendations of the Family Relations report or diverge from the report and make orders based on the testimony of witnesses.
In some cases a parent may wish to move out of the State of Connecticut and wish to take the minor children with him or her. Usually a separation agreement will contain language that the custodial parent notify the other parent before moving out of State. In such a case the non-custodial parent may schedule a Court hearing in order to prevent such a move. In such a case the parents will be referred to family relations and the parties will mediate. In some cases a Family Relations study is conducted, which would delay the other parent’s move out of State. In other cases the parties will agree to the move and the parent who bears the travel expenses will be entitled to some adjustment in terms of child support payments. In determining whether a move for the minor child is beneficial or not, the standard of law is what is in the “best interests of the minor child.” In some cases a spouse either wishes to move back with his or her parents in a different State or to be closer to his or her family. Or a spouse has a better job opportunity in a different State. These factors may be relevant but not necessarily determinative of whether the spouse will be allowed to move to a different State. The standard the Court follows for making such a determination is what is in the best interests of the minor child. Such factors can include maintaining the child’s relationship with the other parent and the impact of such move on the child’s schooling and social life.
Child Support is calculated by the use of the Connecticut Child Support Guidelines, a formula devised by the State of Connecticut. The formula starts by adding up the net salaries of both spouses. Then the formula looks at the salary of the non-custodial spouse and the percent said salary is to the total of both salaries. The higher the overall salaries of both spouses the higher will be the child support order. Certain income is excluded when calculating the salary of the spouses. Any income earned when working over 45 hours a week is not included towards salaries when calculating child support. Income is also reduced for medical and health insurance payments, union dues, uniforms, or payments for child support for a different child. The basic child support obligation figure can be adjusted if the non-custodial spouse has another child living with him or her. The basic child support obligation figure can be adjusted if the minor child incurs certain extraordinary expenses. The basic child support obligation figure can be adjusted if the non-custodial spouse must incur significant travel expenses for visitation, including air fare, hotel rooms, food, and other expenses related to travel. The receipt of child support is not considered income for IRS purposes and the payment of child support is not treated as a tax deduction.
At any time a child is born to an unwed couple, either party may petition the Superior Court, or the Court of Probate, for a determination of paternity. In a paternity action a couple may be required to undergo blood tests or DNA tests. The name of a father on the birth certificate does not determine paternity of the minor child. After paternity is determined a mother can petition the court for child support payments. A father can also petition a court for a determination of paternity of the minor child, and seek to gain rights of visitation.
The first step to filing a case for dissolution of marriage, paternity, dissolution of civil union, or legal separation is to serve papers on the other party. Once the other party is served by a state marshal, the papers are returned to Court where a court date will be scheduled. In most cases final orders cannot be entered for at least three months after the papers are filed with the Court. In the meantime, any party to the action is free to go to Court and obtain temporary orders, or pendente lite orders. These orders stay in effect until the divorce is finalized, or until such time a judge changes such orders. Temporary orders may include child support, alimony, visitation, custody, exclusive possession of the marital home, and any other issue that the parties cannot agree.
Once dissolution of marriage papers are served on the other party by a marshal, automatic court orders, contained within said paperwork, prevent either party from transferring or selling marital assets, incurring substantial marital debt including credit cards, mortgaging the marital property, removing children from the State of Connecticut, let insurance expire including life insurance, or removing anyone from health, life, automobile, or dental insurance. If a party resides outside of the State of Connecticut or resides in the State of Connecticut but his or her address is unknown, a person can still begin legal proceedings. There are methods to serve a party out of State, whether through an out-of-State process server or through certified mail. You can also give notice to a party through the newspaper, ie., in the legal notices section in the back of the daily newspaper, if the Connecticut address of the person is unknown.
If you wish to set up an appointment to discuss these issues further or to obtain a price quote for a legal process that you wish to initiate, please contact me at 203-772-4848. I am affordable and am willing to set up payment plans. There is no charge for an initial consultation. Most uncontested divorces cost under $1,300.00, which includes all fees and costs. I am available most days and can schedule a weeknight or weekend appointment upon request.
