Legal lingo and procedures that differ from court to court and year to year can increase the anxiety of a divorcing person. I help my clients take the mystery out of the legal language and the divorce process.
And remember-many of the things you are most worried about may not even apply to you if you are divorcing through mediation or collaboration.
There’s some great news for Connecticut couples divorcing non-adversarially. As of October 1, 2015, Connecticut offers a simplified and simple divorce procedure which includes eliminating the 90 day waiting period for some couples. While the details and logistics are still being worked out, I expect many of my clients will be able to take advantage of this new opportunity and divorce quickly, perhaps on the same day the legal divorce case starts.
Legal Divorce – Beginning the Journey
Dissolution of Marriage. A marriage is ended in Connecticut when a Superior Court issues a judgment dissolving the marriage. Dissolution of marriage is commonly referred to by the non-legal term “divorce”.
Legal Separation. Legal separation is a legal status in which the spouses are free from the obligations for and have given up the rights spouses typically have regarding each other. Legally separated persons can’t marry someone else. You generally can’t get legally separated any faster or more easily than you can become divorced. Living separately from your spouse doesn’t constitute legal separation.
No-Fault Divorce. There are numerous grounds for divorce, the most common of which is because “the marriage has broken down irretrievably”. Frequently referred to as “no-fault” divorce, in 1973 this became the norm in Connecticut and it eliminated the need to prove fault, such as adultery or abandonment, to become divorced.
Many divorcing persons are surprised and disappointed to learn that only one spouse must feel the marriage has broken down irretrievably for the court to grant the divorce.
The concept of fault is still built into our law. In Adversarial Divorce, judges are permitted to consider “the cause for the … dissolution of marriage…”, thus fault of the respective spouses, when crafting financial orders. However, unless “fault” has been substantial or gross, it usually plays a minor role or no role at all in the financial or parenting orders rendered by a judge. Judges often quickly tire of evidence of fault which is neither significant or gross nor responsible for the breakdown of the marriage.
Superior Court. Divorce and most other family matters take place in the Connecticut Superior Court. There are numerous Superior Courts throughout the state. The Superior Courts are not organized by county or town but by Judicial Districts. Click on “Judicial Districts” if you want to view the Judicial Districts I typically handle as well as which towns are in each of these judicial districts.
Although the same Connecticut laws apply to all divorce cases brought here, court practices, meaning the way in which the court is run, can differ from judicial district to judicial district and courthouse to courthouse.
A divorce case is usually started in the judicial district in which either spouse lives.
Plaintiff and Defendant. The person starting the legal divorce case is the “plaintiff”. The other spouse is called the “defendant”. The court doesn’t punish or reward one person based solely on whether he or she wants the divorce. There isn’t typically an advantage in being the plaintiff instead of the defendant. However, spouses often have strong feelings about whether they prefer to be plaintiff or defendant. I recommend that the divorcing couple talk about this decision with their mediator or collaborative lawyers.
Summons and Complaint. The legal divorce case starts through a “summons and complaint”, sometimes called “the divorce papers” or the “writ”, setting forth facts concerning the marriage and generally what the plaintiff wants the court to order.
Return Date. The complaint will include a “Return Date”. The return date, is always a Tuesday, typically three to four weeks after the papers are served. The Return Date is not normally a court date. The Return Date is not the date you can become divorced. Instead, the return date is the date from which the ninety day waiting period and other relevant events start. For example, you’ve got to complete your parenting education class program within sixty days of the return date.
Automatic Orders. Attached to the complaint are the “Automatic Orders”. These court orders are effective on the plaintiff when the complaint is signed and apply to the defendant upon service of the complaint. (Copies of the summons, complaint and automatic order forms, as well as most other standard divorce forms, can be found on the State of Connecticut Judicial Department web site at www.jud.ct.gov/webforms/.) The purpose of the Automatic Orders is to prevent one divorcing spouse from doing certain harmful things to the other spouse, for example, cancelling health insurance or running up a huge credit card debt.
Service and Waiver of Service. In adversarial divorce, the summons and complaint are given to a marshal, who serves copies on the defendant, often surprising or embarrassing the defendant spouse at work or home. The defendant doesn’t have to accept the papers from the marshal or sign anything for the marshal in order for the marshal’s service to be valid.
In contrast, in most mediation and collaborative cases, the spouses avoid the cost, inconvenience, and embarrassment of a marshal. Instead, most courts accept what is called a Waiver of Service form signed by the defendant.
Filing the Summons and Complaint. After service is made, whether by the marshal or the wavier form, the summons and complaint are sent to the court with the $350 fee, a file is opened and the case becomes a public record. (The Judicial Department web site, www.jud.ct.gov/ shows the status and history of all pending and some past divorce cases.)
Appearance. The defendant need not physically appear in court upon the commencement of the case. However, the defendant, or his attorney if the case is adversarial, should file an “appearance” form. This notifies the court that the defendant is “appearing” in the case as well as provides the name and contact information for the person appearing.
Pro Se or Self-Represented party, whether plaintiff or defendant, is a person representing themselves in the court case. Spouses participating in mediated or collaborative divorces are almost always self- represented, at least initially.
Answer and Cross Complaint. The defendant is entitled, but not required, to respond in writing to the plaintiff’s complaint, in a document called an answer, and file their own papers asking for a divorce and other relief, called a cross complaint. The filing fee is $200. As your mediator or collaborative lawyer, I’ll discuss the advantages and disadvantages of the answer and cross complaint with you so that you can decide whether to file.
The Middle – Fight or Negotiation
Waiting Period. The earliest a couple can become divorced is 90 days after the Return Date. However, often, especially in adversarial cases, the middle of the divorce case lasts months or years.
Pendente Lite Period. This is the legal name for the middle of the divorce case – the period between the start of the legal divorce and the date the marriage is dissolved.
Spouses engaging in mediation or collaborative divorce typically address pendente lite issues, such as a temporary parenting plan, housing arrangement, alimony or child support payments, in early meetings without going to court. Mediated and collaborative cases will focus on fact gathering, identifying interests, creating options and negotiation during the pendente period.
Adversarial Divorces Only. Litigating spouses can file motions with the court seeking court intervention and orders. Obtaining pendente lite orders from a court however, often involves time consuming and expensive hearings, repeated court appearances and waiting weeks or months for court time or orders after the hearing is concluded. I often advise potentials clients considering litigation rather than mediation or collaboration, to spend a half day in their local courthouse observing first- hand what family court litigation is like.
Parenting Education Program. All divorcing parents must complete a six-hour parenting education class offered by various organizations throughout Connecticut.
Discovery. Discovery is fact gathering. It’s the process of obtaining information and documents relating to the divorce from each spouse as well as non-parties such as banks, employers, customers, paramours, teachers and pediatricians. Generally, successful settlement negotiations cannot take place without or until appropriate discovery is complete.
In mediated and collaborative divorces, discovery is voluntary, open and tailored to the needs of the particular family.
Adversarial Divorces Only. Discovery is typically accomplished through the use of subpoenas, depositions, interrogatories and mandatory exchanges of information. Discovery can be a source of harassment, abuse, misrepresentation and fraud.
Case Management System. The Case Management System is an administrative tool used by the State of Connecticut Judicial Department to manage the divorce caseload.
Every divorcing couple is assigned a Case Management Date, which is based upon your Return Date and the courthouse in which you are divorcing. Your Case Management Date, shown on your Summons, is always about ninety days after the Return Date. It is often also the earliest date by which spouses can proceed with an uncontested final hearing and finalize the divorce. Frequently, mediated and collaborative divorces are settled and ready for an uncontested final hearing by the Case Management Date.
Courthouses differ in terms of Case Management Date requirement. I keep track of these for each court in which my clients are divorcing. Some courthouses require the divorcing couple to file financial affidavits or parenting plans by the Case Management Date while others do not. What you should keep in mind is simply that a) the Case Management Date is almost never a court date or appointment, and b) I will help you file another form with the court, called a Case Management Agreement, by the Case Management Date, at the absolute latest.
The Case Management Agreement form tells the court about the status of your case and your scheduling requests, for example when you will be ready to finalize the divorce. Because some courts will dismiss a divorce case or schedule a status conferences or pretrial if the Cases Management Agreement isn’t filed, I’ll make sure your properly completed form is filed by your Case Management Date.
Financial Affidavits. At various times during the divorce, both spouses must exchange and file with the court their sworn financial affidavit. A financial affidavit is a statement showing each spouse’s income and expenses on a weekly basis, their assets and liabilities. The affidavit must be notarized or acknowledged, making it the spouse’s sworn statement. Since a court puts great weight on the financial affidavit and misrepresentation or omission on an affidavit may constitute fraud or perjury, it’s crucial for you to feel comfortable that your financial affidavit is accurate and complete. I will work with you on this important part of the divorce process. Copies of the financial affidavit form are available on the judicial web site or via these links: Long form | Short form
Experts. Adversarial Divorces Only. Adversarial divorce cases often rely heavily on the involvement of various types of experts. Generally, these experts will align with one spouse against the other. Experts can be hired by the spouses or appointed by the court. Experts may give their opinions to the court on a variety of topics including which parent is better equipped to parent and how much a business is worth.
Status Conferences. Typically Adversarial Divorces Only. Although the use varies greatly from one courthouse to the next, judges use Status Conferences as a way to supplement the Case Management System and manage their divorce caseload. The adversarial lawyers, and sometimes the divorcing couple, appear before the judge in the courtroom to discuss what needs to happen so that the divorce can move forward.
Pretrials. Adversarial Divorces Only. Judges have limited time to become involved in or hold divorce trials. The State of Connecticut therefore requires litigants, another name for divorcing persons who are litigating, unable to resolve their own disputes to participate in various types of pretrials.
A Pretrial may be conducted by a family relations officer, a special master or a judge. A Family Relations Officer is a state employee whose duties include conducting pretrials. A Special Master is usually an experienced divorce lawyer who volunteers to conduct a pretrial without charge.
Pretrial practices differ from courthouse to courthouse and depending upon the identity of the person pretrying the case. Typically though, the lawyer for each litigating spouse summarizes his client’s story to the person pretrying the case. The pretrier then makes a settlement recommendation based in large part what he thinks the result might be after a trial. More often than not, the divorcing spouses are prohibited from attending or participating in the pretrial. However, whether or not attending, the spouse’s presence at the courthouse is required.
While some pretrials are productive, many fail to result in settlement, escalate hostilities between the spouses, and generate significant legal fees. The recommendations made by the special masters, family relations officer or even the judge at the pretrial are not court orders – they aren’t binding on either of the spouses and don’t become part of the court file.
The End – Finalizing One Journey and Beginning the Next
Timing. A legal divorce is finalized when a judge enters a judgment of dissolution. Even when the spouses have signed a settlement agreement, a judgment of dissolution cannot be entered until 90 days after the Return Date. Mediated and collaborative divorces are frequently ready to go to judgment upon the expiration of this mandatory waiting period. Litigated cases may take months or years to go to judgment, whether ultimately settled or tried.
Spouses in the mediation and collaborative processes sometimes choose to delay the entry of judgment although their case has settled and the waiting period has expired to take advantage of preferable tax filing status or extended health insurance coverage, obtain social security benefits or proceed at a time that is best for their child.
Divorce Settlement Agreement, Marital Settlement Agreement, Separation Agreement. These are labels sometimes used to identify the written document containing the divorcing couple’s final agreements about parenting and financial items.
The Judgment. The judgment is the court order which terminates or dissolves the marriage. In mediated or collaborative divorces, the judgment incorporates the Divorce Settlement Agreement by reference into the judgment. This means that the Agreement the divorcing couple created in mediation or collaboration becomes their court order.
QDRO. A qualified domestic relations order is the mechanism for dividing a pension or defined contribution plan such as a 401(k) between spouses as part of a divorce. Most divorce lawyers and mediators in Connecticut work with pension lawyers to handle QDROS. I connect my clients with my network of skilled, reliable, and cost effective pension lawyers.
COBRA. The state and federal versions of COBRA are laws requiring employers to continue providing medical and dental insurance benefits to the divorced spouse of an employee for 36 months post-divorce. The Affordable Care Act often offers more affordable options. I work with several health insurance professionals who can help you make the right post-divorce insurance decisions.
Final Uncontested Hearing. The final uncontested hearing is the time and place at which a Superior Court judge reviews and approves the divorcing couple’s settlement agreement and enters a judgment of dissolution.
For spouses participating in mediation or collaboration, this will be their only court appearance. The mediator may or may not attend the final uncontested hearing. Collaborative lawyers will typically attend with their clients.
Although most adversarial cases are concluded with a final uncontested hearing rather than a full trial, the road to the hearing is often long, expensive and destructive. In addition, the agreements reached in litigation may be flawed, unrealistic or the result of surrender, duress and exhaustion.
Trial. Adversarial Divorces Only. If litigating spouses are unable to settle their case, it will be tried before a Superior Court judge. Trials can last anywhere from several hours to many months. A judge has 120 days after the close of the trial to enter a judgment which will dissolve the marriage and include parenting and financial orders.