Divorce
Divorce in Connecticut is legally referred to as “dissolution of marriage”. Connecticut is considered a “no fault” divorce state, which means that a spouse seeking a divorce need not prove fault in order to obtain a divorce. However, “fault” may be considered by the Court when making a financial award, as further discussed below.
Grounds: There are ten grounds for dissolution of marriage in Connecticut which are set forth in Connecticut General Statute Section 465-40(c). In most cases, “irretrievable breakdown” is the only ground alleged, and is legally sufficient to obtain a divorce. The grounds are:
- Irretrievable breakdown;
- Living separate and apart for 18 months with no reasonable prospect of reconciliation;
- Adultery;
- Fraudulent contract;
- Willful desertion for one year;
- Seven years absence;
- Habitual intemperance;
- Intolerable cruelty;
- Life imprisonment or conviction of an infamous crime violating conjugal duty;
- Legal confinement for mental illness for five of the last six years.
While irretrievable breakdown is often the sole ground alleged, multiple grounds may be alleged because “marital fault” may be considered by the Court when assigning division of property and making an alimony award under Connecticut General Statute Section 46b-81. It should be noted, however, that proof of “fault” may be considered by the Court even when irretrievable breakdown is the only ground alleged.
Filing for Divorce: Connecticut imposes a 90-day “cooling off period” after commencement of the action and before a final judgment can be rendered. C.G.S. § 46b-67. The time between filing of the divorce and entry of a final judgment of divorce is called the “pendente lite” period. During this period, before a divorce is finalized, the Court may grant temporary relief, including alimony, child custody and support, a restraining order against abuse, if necessary, exclusive possession of the marital residence, and an order that one spouse pay the other’s attorney’s fees.
During the pendente lite period, the rules also provide “standing orders” mandating that each party maintain the “status quo” while the divorce is pending (such as prohibiting the transfer of assets, charging up credit lines, changing or canceling health or life insurance). The standing orders are “automatic” and set forth case management procedures, automatic discovery and alternative-dispute resolution procedures, including as follows:
Neither party shall:
- Sell, mortgage, or give away any property without written agreement or a court order.
- Go into unreasonable debt by borrowing money or using credit cards or cash advances.
- Permanently take your children from Connecticut without written agreement or a court order.
- Take each other or your children off any existing medical, hospital, doctor, or dental insurance policy or let any such insurance coverage expire.
- Change the terms or named beneficiaries of any existing insurance policy or let any existing insurance coverage expire, including life, automobile, homeowner's or renter's insurance.
- Deny use of the family home to the other person without a court order, if you are living together on the date the court papers are served.
Both parties shall:
- Complete and exchange sworn financial affidavits within thirty days of the return date.
- Participate in a parenting education program within sixty days of the return date or, for a custody or visitation case, within sixty days from the filing of the Application (if you share children under 18 years old).
- Attend a case management conference on the date specified, unless you both agree on all issues and file a Case Management Agreement form with the court clerk on or before that date.
- Tell the other person in writing within forty-eight hours about your new address or a place where you can receive mail if you move out of the family home (if you share children under 18 years old).
- Help any children you share continue their usual contact with both parents in person, by telephone and in writing.
The grounds for legal annulment of marriage in Connecticut are consanguinity or affinity; bigamous marriage; incompetence; defects in the marriage ceremony or license; fraud, force or duress; and concealment or misrepresentation of facts or circumstances.
Consanguinity or Affinity
The law prohibits a man from marrying his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepdaughter, or stepmother, and the same prohibitions apply to women regarding men with similar relationships (CGS § 46b-21). Thus any such marriage is considered void from the outset regardless of the intentions of the parties.
Bigamous Marriage
A bigamous marriage is one attempted by a party who has already married. A bigamous marriage is void from the start, so the annulment judgment only serves as a record that the marriage is invalid.
Incompetence
Before a marriage license can be issued to anyone under the supervision and control of a conservator or guardian, such as a mentally retarded, mentally ill, or otherwise incompetent person, the written consent of the conservator or guardian must be obtained (CGS § 46b-29). Such a marriage may be voidable.
Defects in the Marriage Ceremony or License
The statutes impose some requirements regarding obtaining a marriage license and who can perform a marriage. If any of these requirements are not met, it may, in some cases, be grounds for an annulment.
Fraud, Force or Duress
Marriage is a contract. Consent of both parties is a necessary condition, and when only one party consents to the contract, there is no marriage. When the consent of one of the parties was obtained by fraud, the mutuality of consents required for a valid marriage does not exist. Contracts obtained by force, duress, or coercion can be set aside by the courts so it seems likely that marriages obtained under the same circumstances can also.
Concealment or Misrepresentation of Facts or Circumstances
Misrepresentation of a person's health or physical condition is sometimes raised as grounds for an annulment. But the courts have held that such misrepresentation is only a ground if it relates to matters essential to the marriage union.
A legal separation is obtained upon the same grounds as those available for a divorce. (See above discussion regarding grounds for divorce.) In Connecticut, the only difference between a typical legal separation and a divorce is that the parties to a legal separation may not remarry. As a matter of practice, the decree of legal separation typically includes the same type of provisions for division of assets and for custody and support. Unless these provisions are included, however, a legally separated couple retains all rights of property and inheritance and all the obligations of marriage except for the obligation to live together.
Once a decree of legal separation is entered, it is possible for the parties to reconcile and reestablish their marriage by filing a declaration of resumption with the court. On the other hand, either party may dissolve the marriage any time after the entry of a decree of legal separation simply by filing a motion with the court.
Disclosure of Finances in Actions for Divorce, Annulment or Legal Separation
In any action for Divorce, Annulment, or Legal Separation, each party must make complete disclosure of his or her income, expenses, assets and liabilities. A “Financial Affidavit” is signed by each party and made under oath. There also is a Mandatory Disclosure provision. If a party serves a notice of mandatory disclosure on the other, the party served must provide the following within 30 days:
(1) all federal and state income tax returns filed within the last three years, including personal returns and returns filed on behalf of any partnership or closely-held corporation of which a party is a partner or shareholder;
(2) IRS forms W-2, 1099 and K-1 within the last three years including those for the past year if the income tax returns for that year have not been prepared;
(3) copies of all pay stubs or other evidence of income for the current year and the last pay stub from the past year;
(4) statements for all accounts maintained with any financial institution, including banks, brokers and financial managers, for the past 24 months;
(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan, deferred compensation plan, pension plan, or retirement account;
(6) the most recent statement regarding any insurance on the life of any party;
(7) a summary furnished by the employer of the party's medical insurance policy, coverage, cost of coverage, spousal benefits, and COBRA costs following dissolution;
(8) any written appraisal concerning any asset owned by either party.
Additional discovery tools which may be utilized in a divorce include taking depositions, serving discovery demands called “Interrogatories” and Requests for Production of Documents not covered by the Mandatory Disclosure. In some cases, it may be necessary to hire accountants, actuaries and other experts may be employed by the parties, to discover and analyze corporate books and records, especially in those cases where one party owns his/her own business and there may be a concern that the party is hiding assets. In such situations, the cost of the discovery process may be expensive.
The time between when your action is filed and the time of final judgment is called the "pendente lite" period. During this time, the court may enter temporary orders that provide for such things as which party is entitled to possession of the marital residence, the amount of temporary alimony and/or child support, temporary arrangements for custody and visitation of the minor children, and whether one spouse is required to pay the other's attorneys' fees. The number and types of temporary orders that can be entered depend on the circumstances of your case.
In any action for Divorce, Annulment, or Legal Separation, Connecticut law provides that the Court may order any part of the property of the Husband or the Wife to the other person. C.G.S.A. § 46b-81. This is referred to as equitable distribution of marital property. Connecticut law is different from the laws in many other states in that all of the property of the parties is considered “marital property,” which may be (but not necessarily is) subject to distribution.
First, the Connecticut statute does not contain any distinctions or limitations based upon title or form of ownership. It does not matter if the property is in the name of one spouse or the other. Distribution is not limited to property held by the spouses jointly. The fact that an asset is solely in the name of one party does not preclude the court from distributing all or part of the asset to the other spouse.
Second, the Connecticut statute does not limit distribution to property acquired during a particular period of time. Property acquired before the marriage, during the marriage, and after the separation of the parties may all be subject to distribution.
Third, unlike some other jurisdictions, Connecticut law does not make any distinctions based on how the asset was acquired. For example, Connecticut does not automatically exempt assets which a spouse inherited or received as a gift.
It is important to note, however, that although the court has broad power to redistribute the property of either or both of the parties, this does not mean that either party automatically has an ownership interest in the property of the other spouse. Connecticut by no means is a community property state. Instead the court must consider a number of “factors” in determining how the marital property should be distributed at the time of entry of the decree. These factors are (1) the length of the marriage; (2) the causes for the break-up of the marriage; (3) the age of the parties; (4) the health of the parties; (5) the station of the parties; (6) the occupation of the parties; (7) the vocational skills and employability of the parties; (8) the estates of the parties; (9) the liability and needs of the parties; (10) opportunity for future acquisition of assets and income; (10) the contribution of each party to the acquisition, preservation or appreciation of assets; and (11) the existence of other factors.
Length of the Marriage. The length of the marriage is one of the factors that the court must consider in making its determination of how the marital property will be distributed. The duration of the marriage, however, is only one of the factors that the court must consider and is not likely to be controlling by itself. That being said, the length of the marriage is an important consideration affecting distribution of premarital assets, gifts, and inheritances, for example. In the absence of unusual circumstances, in a very short marriage it could be expected that the court would either not award or significantly reduce the award of premarital assets to the other spouse.
Causes for the Dissolution. The cause for the breakdown of the marriage is one of the factors the court must consider in determining equitable distribution. Although Connecticut is a “no-fault” state, in terms of the grounds for the dissolution of the marriage, the issue of fault can still be relevant to the equitable distribution of marital property. This is so even if the parties are seeking dissolution based on no-fault grounds. Although the court will consider the cause of the dissolution, the comparative fault of the parties is only one factor used in determining equitable distribution. In the case of adultery, for example, an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing. Venuti v. Venuti, 185 Conn. 156, 440 A.2d 878 (1981).
Age of the Parties. The age of the parties is taken into account in making property distributions. The court will consider the amount of time left to the party to accumulate other assets after the dissolution. This factor becomes more important if there is an age disparity between the parties. It also may become important when considered with other factors affecting distribution. For example, a fifty-five year old with no employment history or occupational skills will be viewed differently than a twenty-five year old.
Health of the Parties. The court will consider the health of each of the parties in making its awards and determinations. Health is one of the criteria that may not have a significant impact if both the parties appear healthy. By contrast, the matter would become more significant if there is some major difference in the health of the parties.
Station of the Parties. The “station” of the parties has to do with “social standing.” See Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988). Along with other factors, a person’s social standing is strongly correlated to his or her standard of living. The court may consider the standard of living enjoyed by the spouses in dividing marital property.
Occupation, vocational skills, employability and income. These factors must be considered by the court in determining property distribution. Issues concerning occupation, vocational skills, employability and income are interrelated. Although the party need not be engaged full-time in the occupation at the time of the decree, the occupation of a party should be one which the party has pursued at least at some point during the marriage, rather than one that the party theoretically may be able to pursue in the future.
The income available to a spouse has to do with net income, not gross income or earnings. However, the courts are aware that parties may attempt to reduce their net earnings by having various obligations or other amounts withheld directly from their earnings. It is clear that only statutory deductions, such as federal income taxes, social security, wage garnishment, union dues or contractually mandated obligations of the employee are to be deducted. Optional deductions, such as profit sharing plans, IRAs, stock purchases and credit union deposits are not proper reductions from earnings for determination of financial orders. The issue of whether to include gifts and loans from family members as income depends on whether and to what extent the funds will be actually available to the spouse.
There is also the possibility that one or the other spouse would voluntarily reduce or deplete his or her earnings in order to gain a more favorable distribution. In such situations financial awards may be based on the spouse’s earning capacity rather than on the party’s actual earned income. See the section where I discuss alimony for a more detailed treatment of earning capacity as a basis for financial awards.
Vocational skills and employability are additional factors the court must consider in determining financial orders. Matters related to occupation and income may require evidence of present employment and/or recent employment history. Such information would not be available with respect to spouses who have not been employed outside the home during much of the marriage. In such cases individuals may have acquired vocational skills prior to or during the marriage and might be employable at the present time or in the future.
Estates of the Parties. The court is obligated to consider the estate of each of the parties. The term “estate” in this context does not have to do with wills or inheritances. It refers to the respective assets and entitlements of each of the spouses. The amount to be considered is the size of the estate at the time of the divorce. Included in the estate of the party are assets which the party has an immediate right to receive. For example, certain pensions and certain kinds of deferred compensation may be considered even though the party may not be entitled to receive those benefits until some time in the future.
Connecticut law is consistent that a spouse’s potential future inheritance may not be considered. Evidence of a spouse’s possible future inheritance is not admissible for the purpose of a property assignment or alimony award. Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987).
Liabilities and Needs of the Parties. [The liabilities and needs of the parties apply to property distribution. For alimony, the Court considers only the “needs” of the parties—not the liabilities.] The court must evaluate the liabilities and needs of the parties when fashioning a financial order. The court will consider both the immediate present needs and their probable future needs as long as there is a basis for estimating those future needs. This does not mean, however, that the court will guarantee that the dependent spouse maintains the lifestyle established during the marriage if the payor spouse’s income and assets do not warrant such an award. Nevertheless, there may be situations in which the needs of a spouse are accorded greater weight, such as where a spouse is disabled and not likely to be employable.
With respect to the liabilities of the parties, the court may order one or other of the parties to assume and pay liabilities that are seen as joint obligations of the parties. It is appropriate when evaluating the debts, that the court consider whether the obligations were incurred primarily by one or the other spouse.
Opportunity for Future Acquisition of Assets and Income. [This factor applies to property distribution only.] Generally, this criteria refers to the parties’ respective ability to build for the future, rather than the ability to satisfy current needs. It is clear that Connecticut does not consider possible future inheritance in evaluating this factor, but in situations in which a spouse regularly has received gifts and income from relative the court might assume that such contributions will continue.
The Contribution of Each Party to the Acquisition, Preservation or Appreciation of Assets. [This factor applies to property distribution only.] This criteria is not limited to monetary contributions made by one or the other spouse. It also cannot be assumed that the spouse who made the greatest financial contribution to the acquisition of assets, will necessarily receive that asset. When evaluating the nonmonetary contributions that a spouse may have made toward the acquisition of an asset the standards to consider are (1) whether the spouse’s nonmonetary contribution made it possible for the other spouse to acquire or retain the property, and (2) whether the spouse’s nonmonetary contributions had the effect of preserving or appreciating the value of already acquired property. See O’Neill v. O’Neill, 13 Conn. App. 300 (1988). The nonmonetary contributions include homemaking activities and primary caretaking responsibilities.
Connecticut’s alimony statute [C.G.S. § 46b-82] provides that the court may enter a decree ordering either of the parties to pay alimony in addition to, or instead of, a division of property. But there is no absolute right to alimony. Nor can it be said that alimony is intended to provide the recipient with the kind of living that might have been enjoyed if it had not been for the divorce. In general, the amount of support is determined by the reasonable limits of the payor spouse’s ability to pay. The court has wide latitude in determining the type, amount and duration of alimony in any given case. The factors that the court must consider are essentially the same as those for property division. These factors are (1) the length of the marriage; (2) the causes for the break-up of the marriage; (3) the age of the parties; (4) the health of the parties; (5) the station of the parties; (6) the occupation of the parties; (7) the vocational skills and employability of the parties; (8) the estates of the parties; (9) the needs of the parties; (10) the property division; (11) the desirability of custodial parent securing employment; and (12) the existence of other factors.
If the parties reach an agreement resolving the matter of alimony the court will not be required to apply the factors listed above, but instead must inquire into the financial resources and actual needs of the spouses and to approve the agreement if it is found to be fair and equitable. C.G.S.A. § 46b-66.
Child support is a basic obligation that runs from parent to child. The parent who has residential custody of the child is entitled to child support from the noncustodial parent. In Connecticut, the obligation to pay child support continues until the child reaches the age of 18 years, unless the child is still in high school. If the child is a full time student in high school, is not married, and resides with a parent when he or she reaches 18, then the child support obligation continues until the child completes the twelfth grade or attains the age of nineteen, whichever first occurs. In the context of an action for dissolution (divorce, annulment or legal separation), the court in determining the amount of child support to be ordered is required to consider the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skill, employability, estate and needs of the child; and the court will also consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents. C.G.S.A. § 46b-56(c) & § 46b-84(c). Child support obligations outside of an action for dissolution, require that any order be reasonable in light of the payor’s ability to pay. C.G.S.A. § 46b-215.
In any proceeding for the establishment or modification of a child support obligation, the Child Support Guidelines must also be considered, in addition to, but not instead of, the statutory criteria identified above. At the time of a hearing concerning child support, the rules (P.B. § 25-30) require the parties to submit a completed Child Support Guidelines Worksheet.
Under the Guidelines, the calculation of child support is based on the parents’ net income. Net income is defined as “gross income” minus “allowable deductions.” “Gross income” means the average weekly earned and unearned income from all sources. Gross income inclusions [Conn. Regs. § 46b-215a-1(11)(A)] are: (i) salary; (ii) hourly wages for regular, overtime and additional employment not to exceed 45 total paid hours per week; (iii) commissions, bonuses and tips; (iv) profit sharing, deferred compensation and severance pay; (v) tribal stipends and incentives; (vi) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter or transportation provided on a recurrent basis in lieu of or in addition to salary or wages); (vii) military personnel fringe benefit payments; (viii) benefits received in place of earned income including, but not limited to, workers’ compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits; (ix) veterans’ benefits; (x) social security benefits (excluding Supplemental Security Income (SSI) for a parent or a child), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined; (xi) net proceeds from contractual agreements; (xii) pension and retirement income; (xiii) rental income after deduction of reasonable and necessary expenses; (xiv) estate or trust income; (xv) royalties; (xvi) interest, dividends and annuities; (xvii) self-employment earnings, after deduction of all reasonable and necessary business expenses; (xviii) alimony being paid by an individual who is not a party to the support determination; (xix) adoption subsidy benefits received by the custodial parent for the child whose support is being determined; (xx) lottery and gambling winnings, prizes and regularly recurring gifts (except as provided in subparagraph (B)(v) of this subdivision); and (xxi) education grants (including fellowships or subsidies, to the extent taxable as income under the Internal Revenue Code).
The gross income exclusions [Conn. Regs. § 46b-215a-1(1)(B)] are: (i) support received on behalf of a child who is living in the home of the parent whose income is being determined; (ii) SSI payments, including those received on behalf of a child who is living in the home of the parent whose income is being determined; (iii) federal, state and local public assistance grants;
(iv) earned income tax credit; and (v) the income and regularly recurring contributions or gifts of a spouse or domestic partner.
“Allowable deductions” means average weekly amounts subtracted from gross income to arrive at net income, and are limited to the following: (A) federal, state and local income taxes, based upon all allowable exemptions, deductions and credits; (B) social security taxes or, in lieu thereof, mandatory retirement plan deductions for an amount not to exceed the maximum amount permissible under social security; (C) medicare tax; (D) medical, hospital, dental or health insurance premium payments, including Husky Plan contributions, for the parent and his or her legal dependents, provided the parent provides the name of the insurer and the policy number; (E) court-ordered life insurance for the benefit of the child whose support is being determined; (F) court-ordered disability insurance; (G) mandatory union dues or fees, including initiation, to the extent deducted by the employer; (H) the cost of mandatory uniforms and tools, to the extent deducted by the employer; (I) court-ordered alimony and child support awards for individuals not involved in the support determination, provided a deduction for such awards shall be allowed only to the extent of payment on any non-arrearage amounts; and (J) an imputed support obligation for a qualified child, as determined in accordance with section 46b-215a-2b(e) of the Regulations of Connecticut State Agencies.
The Guidelines do not replace the court’s discretion in applying the above-listed criteria in for child support. In addition, the Guidelines do not apply where the combined net income of both parents is more than $2500 per week. If the combined net income exceeds $2500 per week, then the child support award must be determined on a case-by-case basis.
Where the combined income from both parents is less than $2500 per week, the amounts of arrived at by application of the Child Support Guidelines are presumed to be the correct amounts to be ordered by the court. In a particular case, however, the court may determine that the Guideline amount would be inadequate or inappropriate. In such a case, the Court, after determining the Guideline amount, may deviate from that amount but the deviation must be based on the criteria for deviation specified in the Regulations. In general, the grounds for deviation from the Guidelines are (1) Other financial resources available to a parent; (2) Extraordinary expenses for care and maintenance of the child; (3) Extraordinary parental expenses; (4) Needs of a parent’s other dependents; (5) Coordination of total family support; and (6) Special circumstances.
Educational expenses, medical insurance and medical expenses, and childcare expenses. [UNDER CONSTRUCTION]
The basics of custody can be explained with three concepts: legal custody, residential custody and parenting time for the noncustodial parent (also referred to as “visitation”). Legal custody has to do with major decisions regarding the child’s life. Decisions regarding such things as education, religion, elective medical procedures, extracurricular activities, and so forth, fall within the obligation of a parent with legal custody of the child. In Connecticut, there is a strong preference that the parents have joint legal custody of the child. This means that the parents must consult with each other regarding major decisions affecting the child’s life. If the parents cannot agree, then the court can resolve the dispute, but more often, the parties by agreement, will elect a way to resolve a dispute.
Most divorce cases in Connecticut are “settled” outside of Court before a trial. In such cases, the agreement of the parties is negotiated and drafted by attorneys representing the parties and then signed by the parties. The agreement includes the issues of custody, visitation, child support, alimony, property distribution, both real and personal, payment of fees, and other issues. When the parties have a written agreement, the case is considered “uncontested” and is scheduled for a hearing before a Judge. At the hearing, the Judge reviews the agreement on the record, which includes jurisdiction, grounds for divorce, and whether the agreement is fair and equitable to both parties in light of their respective resources and needs. Since there is a public policy in favor of resolving disputes without court intervention, almost all Settlement Agreements are approved by the Court and made a Court order.
