aug2009

Divorce 101 in Connecticut - The Basic Process Navigating the Judicial Website Karen A. Stansbury, Attorney at Law Founder and Co-Chair, Professional Women’s Alliance of Connecticut, pwa-ct.com August 20, 2009 Regardless of the method that you and your spouse choose to get to divorced, the State of Connecticut is involved in the process. From the time that one of you is served with the summons and complaint, until the time that the judge enters a decree of dissolution of marriage---and often for many years thereafter, the State retains jurisdiction over your divorce, and your life. Most people don’t realize that they have control over the divorce process in Connecticut. A couple may choose the alternatives to traditional litigation, thereby saving time, money and emotional damage to their entire family.
The Judicial Website Connecticut’s Judicial Website is an excellent resource for the public, as well as for attorneys, and should be a first stop for anyone who is contemplating divorce, or dealing with post dissolution judgment issues. The address is www.jud.ct.gov. The Quick Links column on the right of the Home Page has important information regarding questions about child support, court rules and statutes, directions to courthouses, and forms and fees. All of the Family forms are available on the Forms page. For example, the Family Summons, the Family Complaint, Case Management dates, and the Automatic Orders (see below), all of which are served on the defendant, can be filled out from the site. In addition, if children are involved, forms such as the application for the Parenting Education Program, Affidavit Concerning Children, and Proposed Parenting Plan (see below) are available. The Case Look-up link on the left of the Home Page is a convenient way for any person to stay current with the progress of a pending case. Click on Civil/Family to Inquiries to Party Name. Location refers to the particular courthouse. FA is the code for family matters; CV for civil matters. Starting a Divorce Case—Options A couple may take the traditional litigation route. Each hires a lawyer, and if there are issues regarding children, an attorney for the minor children may be agreed upon by the parties, or appointed by a judge. A couple may decide to remain pro se “for self”. That is to say, one or both parties will go through the process without a lawyer. The Appearance Form, which is filed by the defendant, or his/her lawyer, is in the General Forms category on the Judicial Website. Additionally, the parties may choose Collaborative Divorce, or Mediation. Collaborative Divorce Collaborative divorce is conducted in a series of four-way conferences. The attorneys involved should be certified in Collaborative Practice. The process may include other professionals such as financial planners, therapists, appraisers, or a representative for the minor children. The parties agree to full disclosure of assets, and to be respectful and cooperative with each other. At the beginning of the process, a written agreement between the parties may include a provision that if negotiations break down, the clients start over with new attorneys. Collaborative divorce is usually, although not necessarily, much cheaper than litigation, depending on the number of outside professionals required to get the family to a fair agreement. The process provides clients with a voice in every aspect of the divorce, including who is to be the defendant, how s/he will be served with the Summons, Complaint, Automatic Orders etc., and what the Return Date will be. Discovery, or information gathering (see below) is relatively painless, and there are no hearings or depositions involved. At the end of the process, a separation agreement (see below) is generated, and the only time the parties see the inside of a courtroom is at the uncontested hearing, when the judge approves the separation agreement, and the couple is divorced. Please visit The Collaborative Divorce Team of CT website, at www.CollaborativeDivorceTeamCT.com for more information on Collaborative Practice. Mediation A mediator should be certified in at least a basic forty-hour mediation training course, and may be an attorney, a therapist, a financial planner, or a member of any other profession. A mediator will conduct a series of discussions which encourage the parties to deal directly with each other. Mediators are not advocates; they are neutral facilitators. Clients in mediation are asked to listen to each other, and to the professionals involved, in an effort to understand each other’s perspectives and concerns. As in collaborative divorce, full disclosure of assets and other information is required. The goal is to reach an agreement that is based on informed consent. The parties address each other and solve their own conflicts. Most mediation clients are encouraged to have the proposed agreement reviewed by independent counsel, to ensure that all of the provisions of their separation agreement are fair and sensible for everyone concerned. Again, the only time that the parties appear in court is for the final uncontested hearing. Depending on the Mediator, s/he may, or may not accompany the parties to their final hearing, if the parties are not represented by independent counsel. Please see the Professional Women’s Alliance of Connecticut website, www.pwa-ct.com for more information on Mediation, and Collaborative practice. Family Litigation Statistically, ninety-five percent of divorce matters in Connecticut settle before trial, yet in every case, preparation for trial begins with the first motion. Litigation in the family courts can be an extremely painful and stressful experience. Put simply, a complaint is filed, and suddenly a team of strangers barge into the parties’ lives, nose around in their personal business, tell them what to do, and make decisions which will ultimately have enormous impacts on everyone concerned for years to come. Service of Process/Automatic Orders A divorce action always begins with a Summons (see form entitled Summons, Family Actions) and Complaint (see form entitled Divorce Complaint (Dissolution of Marriage)), copies of which are served by a State Marshal on the defendant. Attached to the complaint is a copy of the Automatic Orders (see form Notice of Automatic Orders), which prohibit either party from such actions as relocating children, or assets. A Case Management Date (see Case Management Dates form) will be chosen, and included in the Notice of Automatic Orders. Once the defendant has been served, the plaintiff files the original Summons, Complaint, Automatic Orders, and the Marshal’s return of service form with the Clerk’s Office in the applicable Judicial District. A filing fee is required. Please check the Judicial Website for the correct amount of the fee. If the defendant has an attorney, then s/he will file an Appearance form (see Appearance Form in the ‘General Forms’ column). In Connecticut, there is a 90-day waiting period from the time of the Return Date (always a Tuesday), until a couple may be divorced. The defendant, or his/her attorney will file an Answer (see Dissolution Answer form), and often a Cross Complaint (see Divorce Complaint (Dissolution of Marriage) form, and check the third box on the top left). Pre Judgment or Pendente Lite Motions The clerk will assign a docket number to the file, and the plaintiff and defendant, or their attorneys, will be notified by mail. At this point, a number of decisions must be made, especially if there are children involved. If the parties are being divorced in traditional litigation mode, the attorneys will begin to file motions regarding such issues as temporary alimony, exclusive possession of the marital home etc. For information regarding motions for modification and contempt, please see Post Judgment Motions, below. Parties utilizing the collaborative or mediation approach will come to agreements on all of the relevant issues through a series of discussions, and the court system will not be involved until the final hearing. Children If the parties have children, the process is more complicated. Various additional forms must be filed (see form Affidavit Concerning Children), and the parents must attend classes (see Parenting Education Program form) and file a completion form with the court. A parenting plan must be generated (see Proposed Parental Responsibility Plan form), and issues such as decision making power (custody), visitation, and physical residency must be addressed (see Custody/Visitation Application form). The Child Support and Arrearage Guidelines may be downloaded from the Judicial Website. These guidelines are the state mandated formulas regarding the payment of child support, based on the earnings of both parents. During the divorce process, the children may be represented by an Attorney for the Minor Child (AMC) or given a voice in court by a Guardian Ad Litem (GAL). An AMC is an advocate, while the GAL should be acting in the best interests of the child, and may be a therapist rather than a lawyer. This distinction is often blurred in divorce proceedings, and at times an attorney will be appointed to play both roles. The emotional effects of a divorce on children can be horrific. Once a couple agrees to take their disputes out of attack mode, and to work together to create solutions, the pressure on children to please both parents is lessened exponentially. Family Relations Office Either party, or an AMC, may file a motion for a referral to the Family Relations Office. A judge may also order a referral without a motion. The FRO is comprised of therapists who are hired by the State to help parties sort out their disputes, and to provide impartial assistance to the judges. Before a hearing on any contested motion, including but not limited to temporary alimony, custody, visitation, or child support, the attorneys and their clients must see a Family Relations therapist to attempt settlement. If a custody study is ordered by the court, the FRO will conduct a series of interviews and render a report, which will include recommendations for the judge to consider when s/he makes a decision regarding the relevant issues. Discovery Discovery, or information gathering, begins after the divorce complaint has been filed with the court. The Financial Affidavit (see Financial Affidavit form) should be filled out carefully by both parties, and reviewed by their attorneys, and/or a Financial Planner. Information regarding income, monthly expenditures, assets and debts are made available to each party, and to the court. Other discovery requests may include production of bank statements, canceled checks, credit card statements, insurance policies, business records, phone records, wills, retirement plans, date books, journals, publications and manuscripts, letters, and emails. Be aware that although almost anything can be a discoverable in a divorce action, the same information or item may not be admissible at trial, due to relevance, or a host of other evidentiary issues. One or both of the parties may be ordered to undergo a physical examination (usually if one party is claiming that s/he is physically unable to earn an income) or a psychological evaluation (usually in conjunction with child custody, residency, or visitation disputes). Depositions are an opportunity for opposing counsel to gauge their client’s spouse as a potential witness. A court stenographer is hired, and the questioning usually takes place in a law firm conference room. The deponent is sworn to tell the truth by the stenographer, and the lawyers may or may not agree to certain stipulations. The best case scenario is to have both parties deposed on the same date. This saves time, money, and emotional stress. Depositions of other potential witnesses, including expert witnesses, may be taken. The stenographer produces a transcript of the deposition/s, and the parties split the cost. If the case goes to trial, the attorneys may use the deposition testimony of the opposing party to “impeach,” the witness, by highlighting prior inconsistent statements made on direct, or cross examination. Case Management This is a meeting, usually with court personnel, regarding the status of the case. If the parties have an agreement, a date for the uncontested hearing will be assigned. If the parties are not in agreement, they will be scheduled for a settlement conference with a team of Special Masters. (See Case Management Agreement form). Special Masters The attorneys will prepare a brief summary of the facts and a claim for relief for each party. The Special Masters are usually a team of two lawyers, who speak with the attorneys and attempt to arrive at a settlement agreement that is acceptable to both parties. If no agreement is reached, the parties are assigned a trial date. Pre-trial conferences Depending on the courthouse, and the case load in that particular jurisdiction, it may be possible to schedule a pre-trial conference with a judge. Again, the attorneys prepare a pretrial memorandum for the judge to review. The meeting usually takes place in chambers with the judge, and the parties remain in the courtroom. Judicial pre-trials can be very effective settlement tools, as judges spend all day making unbiased decisions. Parties tend to see judges as authority figures, and are therefore more amenable to accepting judicial recommendations. Separation Agreements Once the parties have resolutions to all of their conflicts, a Separation Agreement is generated, which is a legally binding contract between the parties. (See Dissolution Agreement form for a simplified version). When attorneys are involved in a divorce action, a Separation Agreement is usually drafted out, and lengthy. The various Articles of the agreement address issues such as alimony, child support, custody, physical residence of the children, visitation, insurance, asset division, and the debts of the parties, including taxes. Both of the parties, and their lawyers, if applicable, sign this contract. Uncontested Hearing If the parties come to an agreement on all of the issues, an uncontested hearing is scheduled with a judge. The plaintiff is put on the witness stand, sworn in, and if represented, his/her lawyer asks questions: the date of the marriage, has one of the parties lived in Connecticut for at least a year, are there children of the marriage, and if so, their names and dates of birth, has either party received any financial assistance from the State of Connecticut, is one of the parties asking the court to restore her maiden name, etc. If there is a separation agreement between the parties, the plaintiff’s attorney will read the most important provisions into the record. The judge may ask questions of either party, and/or their lawyers, if applicable, and enter a judgment of dissolution of marriage, based on the agreement between them. Trial Only a small percentage of divorce cases in Connecticut proceed to trial, and settlement between the parties is still possible after testimony has begun. The attorneys gather evidence, review deposition transcripts, update financial affidavits, draft claims for relief, and prepare their clients and other witnesses, if applicable, for testimony. Divorce trials are enormously expensive, extremely time consuming, and generate stress that is indescribable. Usually the plaintiff testifies first. His/her lawyer questions her/him on direct, meaning that questions are open ended and do not contain the expected answer within the question. Then opposing counsel, and the AMC, if applicable, will ask questions. Opposing counsel will conduct what is known as cross examination, meaning that the answer that s/he expects, or wants, is already contained within the body of the question. For example: A direct question might be “Have you had sexual relations with anyone other than your wife during the course of this marriage?” A question on cross might be “Isn’t it true that you’ve been having sexual relations with your assistant since last June?” The plaintiff’s lawyer will put on his/her case, which may include testimony from witnesses such as doctors, therapists, appraisers, business evaluators, teachers, neighbors, or other family members, etc, and enter physical evidence that is admissible, such as photos, letters, bank records, statements, phone records, etc. The defendant’s lawyer will put on his/her case in the same manner. At the conclusion of the evidence, the attorneys will make summation arguments to the judge. Any temporary orders in the file remain in effect while the judge writes his/her decision, which may take days, weeks, or even months. Please see Connecticut General Statutes section 46b-81 “Assignment of property and transfer of title.” Subsection (c) gives family judges the power to consider the following when assigning property to parties in a divorce: length of the marriage, the causes for the breakdown of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. The Family Statutes may be viewed from the Judicial website. On the Home page, go to the Quick Links column on the right. Click on Statutes, then Browse Statutes. Scroll down to Volume 12, and click on to Family Law, which is Title 46b. The parties are divorced once the judge’s Memorandum of Decision has been rendered. The Decision document is stamped in by the Clerk’s Office, and copies are sent to all counsel, or pro se parties of record. Judgment File Once the court has ordered the dissolution of marriage of the parties, a Judgment File must be filled out and filed with the applicable Clerk’s Office for approval. (See Dissolution of Marriage (Divorce) Judgment form) This form summarizes the judge’s orders regarding the divorce. If the parties have a Separation Agreement, it is usually, but not necessarily, incorporated by reference into the divorce judgment, by order of the court. Depending on whether attorneys are involved, the judge, or a clerk, will sign the judgment, it is added to the court file, and certified copies may be ordered by either party, or their lawyers. A fee is required to certify a judgment file. Dissolution of Marriage Report This form (See Dissolution of Marriage Report form) is filed at the time of the uncontested hearing, or trial. It requires information such as the date of the marriage, the education level of the parties, how many times each has been married, and whether previous marriages ended in divorce or death. Post Judgment Motions Motions for Modification and Motions for Contempt (see forms) are based on orders already entered by the court in a dissolution action, and may be filed by either party, or their attorneys, Pendente Lite (before the parties are divorced) or Post Judgment (after the parties are divorced). Modifications must be based on a “substantial change in circumstances” from the time that the original orders were entered. Contempt must be proven to be “willful” and not merely a mistake or misunderstanding. Attorney’s fees may be granted to the moving party by the court, if a finding of willful contempt is made at the conclusion of evidence. Pre-Nuptial Agreements Also known as Ante-Nuptial, or Pre-Marital Agreements, these contracts are negotiated before a pending marriage. Often one of the parties is considerably more affluent than the other at the time of the marriage, and s/he wants to preserve his/her assets in the event of a divorce. It is imperative that each party retain a lawyer in order to execute such an agreement, as the ordinary principles of contract law apply. For example, each party must have the legal capacity to enter into a contract, there must be full disclosure by each party, and there must be an absence of fraud, duress, or undue influence by either party. Furthermore, the Agreement must be fair and equitable to both parties. Please see the Connecticut Premarital Agreement Act at Connecticut General Statutes section 46b-36a. To access the statutes through the Judicial Website, please the Trial section, above. Post Nuptial Agreements These Agreements are entered into by the parties after their marriage, and may be known as Mid Marital or Post Marital Agreements. The same contract principles of Pre-Nuptial Agreements, above, apply. The Agreement must be fair and equitable to both parties. Same-Sex Marriages The legal status of same-sex marriages and relationships is changing so rapidly in Connecticut and across the United States that it is impossible to provide any concrete material on the subject. Connecticut is one of the few states that recognizes legal marriage for same-sex couples. Other states have enacted laws which recognize civil unions, a status which falls short of actual marriage. This ambiguity has created problems regarding estate planning (federal gift tax marital deductions) and the payment of taxes (joint tax returns in CT, but federal tax law does not recognize same-sex marriage, or civil unions). As a result, same-sex couples should be including written partnership agreements in their estate plans, similar to Pre-Nuptial Agreements and Post-Nuptial Agreements, see above. Again, each of the parties should be represented by separate counsel. Litigation Divorce Lawyers Also known as Matrimonial Attorneys or Family Lawyers, these folks come in a variety of packages. The “Warriors” want to fight your fight, regardless of practicality, reasonableness, or cost, as long as they get paid. The “Good Ole Boys” have been practicing before the Family Bench together for decades, and are stuck somewhere in the 1960s, in terms of what is due to each party in a divorce. The “Conveyor Belt” attorneys have so many clients, and so many trials and hearings scheduled, that you are a helpless prisoner to their date books, and the clients who come before you in the line-up. Finally, there are the “Sharks”. These lawyers are abusive, controlling bullies; they behave outrageously to each other, to their clients, to their client’s spouses, and even in front of judges in court. For some inexplicable reason, “Sharks” are also the attorneys who charge the largest fees, and people pay them. Litigation Divorce Lawyers do not make money settling divorce cases. They would prefer to stir the emotional pot, file motions, conduct depositions, fire nasty-grams back and forth, and spend a lot of your time and money in court. This is how they generate fees. If you have a Certified Financial Planner, CPA or other financial advisor, and you want this person involved in your divorce, don’t be surprised if your lawyer exhibits resistance. Lawyers don’t make money by farming out work to other professionals, and they prefer to have their paralegals do as much as possible. This is how they manage their huge overheads. Summation Be insistent, ask questions, do your own research, and take a proactive stance. Choose Mediation or Collaborative Practice. Your divorce is about your life.

Divorce 101 in Connecticut - The Basic Process Navigating the Judicial Website
©2009 Karen A. Stansbury, Attorney at Law