Divorce Facts
“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”.
Divorce Method Choices. There are numerous divorce methods to choose from. Mediation (for more, click on “Mediation”) and collaborative practice (for more, click on “Collaborative Practice”) are respectful, private and often family focused alternate dispute resolution processes. On the other hand, litigation and binding arbitration (for more, click on “Binding Arbitration”) are adversarial methods of divorcing. Choosing the divorce method that is right for you and your family is a critical decision.
“No-Fault Divorce”. There are numerous grounds for dissolving a marriage, the most common of which is because “the marriage has broken down irretrievably”. Frequently referred to as the “no-fault” divorce, in 1973 our Connecticut legislature eliminated the need to prove fault, such as adultery or intolerable cruelty, as a prerequisite to dissolving a marriage.
The concept of fault is still built into our law. Judges are permitted to consider “the cause for the … dissolution of marriage…”, thus fault of the respective spouses, when crafting financial orders. C.G.S. Section 46b-81, 46b-82.
However, unless “fault” has been substantial or gross, it usually plays an insignificant 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.
Courthouses. 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 dissolution cases brought here, court practices, meaning the way in which the court is run, can differ from judicial district to judicial district.
Starting a Divorce Case. The legal divorce case starts through a “summons and complaint”, sometimes called “the divorce papers”, setting forth facts concerning the marriage and generally what the plaintiff wants from the court in the divorce case. The person instituting the case is the “plaintiff”. The other spouse is called the “defendant”. Typically, the court makes no assumptions based upon whether a spouse is the plaintiff or defendant. However, spouses often have strong feelings about whether they prefer to be plaintiff or defendant. Making this decision is therefore usually discussed by and negotiated between both spouses early in mediated and collaborative divorces.
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.)
In most judicial districts, the complaint is given to a marshal, who in turn delivers or serves a copy on the defendant. In mediation and collaborative cases, the spouses discuss service at a meeting and choose a convenient manner, time and place for service. Some courthouses are beginning to accept what is called a Waiver of Service form signed by the defendant in lieu of the marshal serving papers but this is not yet the norm.
The complaint will include a “Return Date”. The return date, which is always a Tuesday and typically three weeks after the papers are served, is not a date upon which the spouses must appear in court. Instead, the return date is the date from which the ninety day waiting period and other relevant events start.
After service, the summons and complaint are sent to the court, a file is opened and the case becomes a public record. (The Judicial Department web site shows the status and history of all pending and some past divorce cases.)
Appearance Form. The defendant need not physically appear in court upon the commencement of the case. However, the defendant or his attorney 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. A “pro se” party, whether plaintiff or defendant, is a person representing themselves in the court case. Spouses participating in mediated or collaborative divorces are pro se parties, at least initially. Since the spouses then rather than the mediator or collaborative lawyers receive the court notices, they must copy the mediator or their collaborative lawyers.
Case Management Date. The Case Management Date, approximately ninety days after the Return Date, is not a date upon which the parties must appear in court unless they are disputing custody of their children. Instead, it is a date by which they must file a Case Management Agreement with the court, which is a form notifying the court about the status of the case and scheduling plans. It is often also the earliest date by which spouses can proceed with an uncontested final hearing and obtain their divorce. Frequently, mediated and collaborative divorces are settled and ready for an uncontested final hearing by the Case Management Date.
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. Mediated and collaborative cases rarely file an answer or cross complaint.
Pendente Lite Period. This is the period between the start of the case and the date a judgment dissolving the marriage is effective. Spouses engaging in mediation or collaborative practice typically address pendente lite issues, such as a temporary parenting plan or housing arrangement and interim alimony or child support payments, in early meetings.
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.
Mediated and collaborative cases will focus on fact gathering, identifying interests, creating options and negotiation during the pendente period.
Discovery. Discovery is the process of obtaining information and documents relating to the divorce case from each spouse as well as non-parties such as banks, employers, customers, paramours, teachers and pediatricians. In mediated and collaborative divorces, discovery is voluntary, open and tailored to the needs of the particular case. Discovery can be a source of harassment, abuse, misrepresentation and fraud in litigated divorces. Generally, successful settlement negotiations cannot take place without or until appropriate discovery is complete.
Financial Affidavits. At various times during the case, both spouses must exchange with the other 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 a sworn statement of the party. Since a court puts great weight on the financial affidavit and misrepresentation or omission on an affidavit may constitute fraud or perjury, it is imperative for the financial affidavit to be accurate and complete. Copies of the financial affidavit form are available on the judicial web site.
Court Sponsored Settlement Programs. Judges have limited time to become involved in or try divorce cases. The State of Connecticut therefore requires litigants unable to resolve their own disputes to participate in various programs. These include, without limitation, family relations counselors and pretrials.
Family Relations Counselors. Family relations counselors are State employees who assist judges in making child custody investigations and negotiating financial matters.
Pretrials. Each judicial district provides variations of the following pretrial program to assist litigating spouses unable to resolve disputes affecting their own finances.
Level 1 Pretrial – Depending upon the courthouse, litigating spouses and their lawyers appear in the court before a family relations officer or two “special masters”, who are experienced matrimonial lawyers. Each side presents its case to the family relations officer or special master who then makes a recommendation on the result they believe would occur if there were a trial. Occasionally, the parties themselves attend the pretrial. Whether or not attending, the spouse’s presence in the courthouse is required.
Level 2 Pretrial – If the case is not settled after the Level 1 Pretrial, a second pretrial session is held, generally several months later. This pretrial is held before a Judge of the Superior Court or the special masters. The spouses rarely participate in the pretrial, but again, must be present at the courthouse during the proceeding.
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, and therefore are not binding on either of the parties and do not become a part of the court file.
Custody and Parenting. “Legal custody” refers to the right of a person to make major decisions for and on behalf of a child. Most parents, whether divorcing or never married, receive a judgment of “joint legal custody” meaning they must make major decisions together. “Sole legal custody” occurs when only one person has the right to make major decisions for a child.
“Physical custody”, a term used increasingly less often, refers generally to with whom the child will live, such person making the day to day decisions affecting the child.
“Parenting plan, parental responsibility plan, access schedule, parenting time”, are all labels designed to identify and allocate parenting rights and responsibilities.
For more on custody and parenting, click on “Child Custody”.
Final Uncontested Hearing. The final uncontested hearing is the time and place at which a judge of the Superior Court reviews and approves the settlement agreement of the spouses and enters a judgment of dissolution, meaning ends the marriage. For spouses participating in the mediation or collaborative process, this will be their only court appearance. The mediator may or may not attend the final uncontested hearing. Collaborative lawyers will attend with their clients.
Although practices differ somewhat from judicial district to judicial district, the following events typically occur at the final uncontested hearing.
- Spouses and lawyers should arrive at the courthouse at least fifteen minutes before the scheduled final hearing time if all required documents have been previously finalized and signed. This will be the case in almost all mediation and collaborative cases. Neither camera phones nor weapons of any kind are permitted in the courthouse.
- As numerous cases are scheduled for the exact same time, being prepared and on time will frequently result in a shortened court stay. Expect to be at the courthouse from one-half to three hours.
- Spouses or their attorneys should check in with the marshal and/or clerk in the courtroom assigned for the final hearing. In some courts the clerk will take the final hearing papers and prepare them for the judge to review.
- When a particular case is called, the spouses and/or lawyers will walk to the counsel tables in the front of the courtroom. The judge will ask for the spouses or lawyers to identify themselves and the clerk will swear in each of the spouses.
- The judge will review the paperwork for the case. This paperwork will include financial affidavits for each spouse, a so called health department form, a settlement agreement sometimes called Separation or Divorce Settlement Agreement, a Withholding Order/Waiver if child support or alimony is being ordered. If children are involved, a Custody Affidavit, Parental Responsibility Plan and Child Support Guideline Worksheet will be required as well.
- Before approving the settlement agreement and making it a court order, the judge must find that it is fair and equitable and feel confident that each spouse understands what he or she has agreed to. To do so, the judge, directly in some mediation cases or to pro se parties and through the attorneys in collaborative cases or when otherwise appearing, will ask each of the spouses about the agreement. Some judges will question extensively while others will not. It is important, especially for pro se parties, to listen to the questions before answering and respond in a clear and concise manner.
- In almost all cases, ultimately, the judge will accept the written settlement agreement of the parties and make it a court order. It is rare that a judge will refuse to accept the agreement two spouses have knowingly and voluntarily entered into. Nonetheless, this does occur but normally can be addressed by clarifying or adding to the existing agreement. For pro se parties however, the process of being questioned by the judge about details of their written agreement or with hypothetical situations unlikely to ever occur and not before considered can be intimidating. In such situation, the ability for the pro se parties to remain calm and ask the judge for an opportunity to take a break to call the mediator or legal advisor is important. Note that the judge cannot accept part of the agreement and, on his own, force the divorcing couple to modify or reject the balance. I frequently recommend to my mediation clients that they go to court several weeks before their own final uncontested hearing simply to observe and familiarize themselves with the physical logistics of the courthouse if the mediator will not be attending the final hearing.
- In most judicial districts the pro se parties or their attorneys will be asked to sign a “judgment file” which is the official document evidencing that the marriage has ended and the terms of the settlement. Each spouse should obtain a certified copy of the judgment for their files.
Trial. If spouses, notwithstanding the help of pretrials, attorneys, family relations officers, court appointed experts and others, 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 dissolve the marriage and enter orders.
Child Support. In deciding upon child support, the court considers the needs of each minor child and the ability of each parent to pay support. Connecticut has adopted Child Support Guidelines, which include a formula for determining appropriate levels of child support and the contribution of each parent to the child’s medical and child care expenses.
The legal obligation of a parent to support a child terminates when the child reaches 18 or graduates from high school but not later than the child’s 19th birthday. The court does not have the legal authority to order child support after this time unless the parents specifically agree in writing to do so.
Connecticut law authorizes a court, under certain specified circumstances, to order either parent to contribute to the cost of his or her child’s college or post high school vocational school expenses. Neither parent may be required to contribute more than the then applicable in-state University of Connecticut tuition, room, board and fees.
Spouses divorcing through mediation or collaborative practice are not limited to what the law or Child Support Guidelines allow when creating settlements. Instead, they may develop a child support or college plan which furthers the best interests of their children and reflects the joint goals they have for the children.
Alimony. The spouses may agree in their settlement agreement or a court may order, after a trial, either spouse to pay alimony to the other, indefinitely or for a fixed period. If there is no provision for alimony in the judgment, the court cannot order alimony in the future. This sometimes results in an alimony order of $1 per year, which may be modified by the court at some future time upon a substantial change in circumstances of one or both of the parties.
There is no rule or law and there should be no expectation that a court will award alimony for half the length of the marriage.
A court may also award temporary alimony during the pendente lite period.
Division of Property and Debts. A court may “assign to either the husband or wife all or any part of the estate of the other.” C.G.S. Section 46b-81. This means that a court can allocate between the spouses all assets and debts in the name of the spouses jointly or either of them individually.
A court may order one spouse to transfer title of the family home to the other spouse or order one or both spouses to sell the home.
A court may order one spouse to transfer to the other all or a portion of his pension, IRA or 401(k) account. For pensions or 401(k) accounts, a special type of court order called a qualified domestic relations order (QDRO) is necessary. QDROs can be complex and time consuming documents to draft and implement. Frequently, lawyers specializing in pension work are retained to draft and implement the QDROs, even in litigated cases. In collaborative and mediation cases, the pension lawyer is jointly retained by the spouses.
There is no rule or law and there should be no expectation that a court will allocate assets and debts equally between the spouses.
Unlike alimony, a court may not make property division orders until the time of judgment. For example, if one spouse wants to sell the family home while the case is pending but the other does not, during the pendente lite period, the court cannot order the home sold or even listed for sale. This limitation on the court’s authority is a source of frustration for many couples litigating their divorce. On the other hand, if the spouses agree to sell the home or other real estate while the case is pending, as is sometimes the situation in a mediated or collaborative case, the law permits this to occur.
Alimony and Property Division “Standards”. Before entering property division and alimony orders after a trial, a judge is required to consider the following factors (C.G.S. Section 46b-81 and 46b-82):
- Length of the marriage
- Causes for the dissolution of the marriage
- Age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, and needs of each of the spouses
- Liabilities of each spouse (for property division only)
- Opportunity for each spouse for future acquisition of capital assets and income (for property division only)
- Contribution of each spouse in the acquisition, preservation or appreciation in value of their respective estates (for property division only)
- Property division orders (for alimony only)
- Desirability of the custodial parent’s securing employment (for alimony only)
Notwithstanding these factors, the trial judge has tremendous discretion in how he or she weighs them and fashions the financial orders. Two judges hearing the same evidence in a trial might enter vastly different orders. Therefore, it is impossible to predict the outcome of trial with any reliability.
In mediation and collaborative cases, at most, these factors and what a court might order at trial constitute just one standard for the spouses to weigh in reaching their agreement. Mediation and collaborative clients are not limited to considering what a court is permitted to or might consider important. Similarly, mediated and collaborative settlements are typically better suited for the particular family involved since a) the solutions are created by the spouses for their own family, b) the spouses are not hampered by the same restraints applicable to judges.
Time Table. Even when the spouses have achieved a written settlement agreement, under Connecticut law, a judgment of dissolution cannot be entered, and thus they will not normally have their final uncontested hearing, until 90 days after the return date. Mediation and collaborative cases 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, extended health insurance coverage or obtain social security benefits.
Income Tax. The party paying alimony normally can deduct such payments from his or her taxable income. The party receiving the alimony, in turn, typically must include the payments as taxable income.
Child support is neither deductible by the person paying nor includible by the recipient.
Unless the parents agree otherwise, dependency exemptions for children are awarded to the custodial parent. The parent taking the dependency exemption also receives the benefit of the child tax credit.
Transfers of property between spouses, such as the family home, pensions or bank accounts, are generally exempt from income taxes.
It is usually advantageous for parties to file a joint tax return rather than filing as a single or head of household taxpayer. To file jointly, the taxpayers must be married on December 31 of the tax year in question.
Spouses divorcing through mediation or collaboratively often benefit by jointly retaining a tax accountant or other financial professional to help structure or review their financial settlement, taking advantage of tax laws and avoiding unanticipated pitfalls.
Contempt of Court. If either party violates any court order, the other party may compel the violating party to appear in court and answer concerning the alleged violation. The court then has substantial discretion in dealing with the violating party, including for example, ordering the violating party to a) rectify the violation, b) pay the legal fees of the other party, c) be incarcerated.
Contempt actions do not often occur in well mediated or in collaborative cases. Because the parties create their settlement and frequently learn to cooperate and communicate with each other during the divorce process, they are more likely to abide by the court orders and handle changes in circumstances in a non- adversarial manner.
Modification of Court Orders. Connecticut courts have the power to modify earlier orders concerning such matters as alimony, child support, custody and parenting plans. Each court order is based on the factual circumstances at the time the order is entered. If those circumstances change substantially, it may be appropriate for the court to modify the prior order to reflect the changed circumstances. These types of situations are typically referred to as “post judgment” matters.
Property division orders may not be modified.
Mediation or collaboration are typically more advantageous methods for resolving post judgment disputes than litigation.
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