Year: 2017

The Basics of Bird Nesting

This Week’s Blog by Carole T. Orland

On occasion, clients who consult with divorce lawyers in Greenwich, Westport and other Fairfield County cities and towns, inquire about arrangements where the children stay in their home and the parents alternate moving in and out. This is commonly known as “bird nesting.” The motivation for this type of parenting plan is often financial. Parents sometimes recognize an inability to have two homes that are adequate to meet the needs of their children, especially during the pendency of a divorce. Or sometimes parents feel they are being more compassionate toward their children if they keep them full time in the home they are used to, particularly when the divorce action has just started and emotions are raw.

For these reasons, bird nesting sometimes may be a reasonable short term solution, however it is rarely ideal. Unless the family home is very expansive, privacy of each parent can be an issue. Sharing rooms, particularly the former marital bedroom, can lead to unwanted encroachment of personal space. It can also create emotional confusion for the children. Usually, a clean break although painful in the short term, is more realistic.

Certainly once a divorce is final, bird nesting is rarely practical. An alternative that works in some cases is to have both parents live in close proximity to each other. Although this means the children go back and forth, if both parents remain in the same neighborhood, the children are able to sustain their connection with what is familiar and comforting to them. Of course, this means the divorced parents must feel comfortable being in proximity to a former spouse, which often is not the case given the contentiousness that permeates many divorces. So like concentric circles, moving further out but still in the same geographic location is often the best move.

Children are generally resilient and in time most get used to two households. Often it is a relief from the tension and fighting they have observed prior to the divorce, sometimes for many years. And they may even think it is “creepy” for their parents to bird nest once the divorce is inevitable or after it occurs.

If you are considering bird nesting, it can be helpful to consult with a therapist who can meet with the parents and children, sometimes in different constellations, so that everybody can express their true feelings and concerns about such an arrangement. And it is a good idea to establish clear ground rules that ensure privacy and respect.

At Broder & Orland LLC, we are able to develop bird nesting plans that meet our clients’ needs. We are creative in our approach and thoughtful in the execution. We also assist our clients in remaining flexible when it is necessary to tweak or modify an arrangement that might work better for the family as time goes on.

Spying on Your Spouse

This Week’s Blog by Jaime S. Dursht

In a high conflict divorce, spouses are often tempted to spy on each other in an effort to discover and capture evidence of suspected wrongdoing.  This includes for example, recording conversations, reading each other’s computer emails and cellular text messages, unlocking drawers and briefcases, and tracking each other’s whereabouts with GPS. Be careful! Spouses often incorrectly assume that because they are married that they are either exempt from the law governing such activity or may simply be oblivious to the possibility that it may be illegal.

As experienced divorce lawyers in Westport and Greenwich know, the rules of evidence prohibit the use of illegally obtained evidence, and Connecticut statutes specifically address the admissibility of electronic evidence.  Connecticut General Statutes § 52-184a provides, “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.”  With the routine use of iPhones and personal computers to preserve and store information, it is important to have an understanding of the rules to avoid negative consequences.

Computer Email.  Whether one spouse may access and read the computer email of the other spouse depends on the characteristics of the computer and email account.  One must be an authorized user of the computer, and have proper access to the email account or the owner’s consent.  Consent may be implied as in the situation when the account owner’s password is routinely used with his or her knowledge, but facts and circumstances are considered case by case.  For example, if the computer is a family home computer to which both spouses have open access then both are authorized users.  However, even if the computer is not password-protected, if an email account is password-protected and is accessed without permission, the obtained email may be subject to legal objections and/or injunctive relief in a motion to preclude or a protective order.

Text Messages.  Text message exchanges between spouses are commonly preserved and used to show verbal abuse, admissions, state of mind or sometimes to give the court a flair of the relationship.  The situation often arises when one spouse views incoming texts on the other spouse’s phone screen from a third party.  The viewing spouse may then capture the image by screen shot or forward the text to their own device.   If the phone screen was in plain view in an openly accessible area of the home, there is no rule that would protect the privacy of the displayed text messages that appear on screen.  However, if the phone was password protected and/or stored inside a personal belonging such as a purse or briefcase, there may be objections raised challenging admissibility on the grounds of improper access.

Recording Conversations.   In Connecticut it is illegal to record conversations without the consent of both parties to a telephone conversation.  CGS § 52-570d provides, “No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording. …”

If the conversation is in-person, there must be consent by at least one person who is a party to the conversation.  CGS § 53a-189 prohibits the unlawful mechanical overhearing of a conversation.  “Mechanical overhearing of a conversation” is defined as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.”  Thus, a spouse may not secretly plant a recording device in the other spouse’s car to record that spouse’s conversations with a third party.  The recorded conversation will be inadmissible in court, and was recently ruled unusable during the discovery process on the grounds that it would be unjust.  Simonson v. Simonson, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford, FA 156025703S, April 15, 2016 (Colin, J.).

Locked Containers.  “Marriage does not destroy one’s constitutional right to personal autonomy but, at the same time, each spouse does relinquish some of his or her rights to seclusion.”  In re Matter of Dubreuil, 629 So.2d 819 (Fla 1993).   Cases addressing spousal privacy in the home emphasize whether there is a manifestation of an expectation of privacy.  For example, when a wife found love letters and photographs of another woman in the home office filing cabinet, the court ruled the items admissible on the grounds that the wife had complete access to the storage room files and had a valid reason to be in the files.  “Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful.”  Del Presto v. Del Presto, 235 A.2d 240 (N.J. Super. 1967).  The most obvious manifestation of an expectation of privacy is a physical locking device so if you are considering breaking locks to access anything, consider that there may be consequences.

Divorce is a highly emotional and stressful time.  It is important to understand the boundaries of spousal “investigation” and to appreciate your own exposure in order to protect your individual privacy.  You should assume that anything you email, text, post online or communicate digitally will be discovered and used as evidence.  Change your email passwords regularly.  The best way to protect your privacy is to assume that there is little to no expectation of privacy during a divorce. The attorneys at Broder & Orland LLC are experienced with the evidentiary issues that often arise in the context of the spousal discovery process, and are adept at advising clients on how best to obtain information and conversely protect their individual privacy interests.

Child Support & Children’s Expenses

This Week’s Blog by Amanda K. Rieben

Many clients come to our office from towns in Fairfield County wondering which children’s expenses they will be required to contribute toward as part of their child support obligation. While the Court may order both parents to contribute toward certain children’s expenses, there are some children’s expenses which parents are statutorily required to contribute toward, whereas there are other children’s expenses which are entirely discretionary.

The Court has the authority pursuant to Connecticut General Statutes § 46b-84, to establish a schedule and an amount of child support to be awarded, including a percentage contribution by the parents toward certain children’s expenses.  Specifically, Connecticut General Statutes § 46b-84, provides that “subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.” In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance, the court shall consider the age, health, station, occupation, amount and sources of income, estate, vocational skills and employability of each of the parents and of the child.  The Court shall also consider each parent’s earning capacity and the child’s education status.

While the Court’s authority to award child support is governed by Connecticut General Statutes § 46b-84, the schedule and amount of child support to be awarded are determined by the Child Support Guidelines in accordance with Connecticut General Statutes § 46b-215(a). The Connecticut Child Support Guidelines include a worksheet and instructions for determining the amount of weekly child support owed by the parents up to a combined net weekly income of $4,000.  In addition to a weekly amount of child support, parents are also obligated to contribute a certain percentage toward unreimbursed medical expenses, as well as child care. Parents are also obligated pursuant to statute to provide health insurance for any child whom the Court deems is in need of maintenance.  However, parents are not statutorily required to contribute toward many children’s expenses, such as sports and/or music activities, sports equipment, musical instruments, camps, tutoring, SAT prep courses, or driving classes.  Additionally, parents are not statutorily required to contribute toward certain educational expenses like private school tuition (other than college in certain circumstances) and uniforms.

Although, a parent is not statutorily required to contribute toward the aforementioned child related expenses, the Court has the discretion to order for either or both parents to make financial contributions toward these expenses. In making a determination as to whether such an order is appropriate, the Court will consider the §46b-84 statutory factors discussed above.  The Court will also consider several other factors which may include how long the child has been engaged in the activity and/or enrolled in the school, whether one or both of the parents as a child was ever enrolled in the school and/or activity, the emotional impact on the child, the child’s best interests, and the financial impact on the parents. If a Court ultimately determines that the parents shall contribute toward a child related expense, the percentage is often consistent with the percentages the parents are required to contribute toward unreimbursed medical and child care expenses pursuant to the Connecticut Child Support Guidelines.  However, this is not always the case. In some instances a Court may direct one parent to be solely responsible or responsible for a disproportionate share of a child related expense, depending whose decision it was to continue to enroll the child in that extracurricular activity and/or school.

At Broder & Orland LLC we recognize the financial constraints that a pending divorce can pose on both parents, and the effects that this can in turn have on their children. We understand the multitude of factors considered by a Court in establishing a child support order, and we are adept at helping and advising our clients how to financially plan for their children’s future.

How Will My Divorce Impact My Taxes? PART I

This Week’s Blog by Amanda E. Ell

A divorce proceeding will impact your life in countless ways. Typically, when negotiating a divorce settlement, parties are focused on dividing assets and calculating the correct amount of support. One critical area that experienced divorce attorneys in Westport and Greenwich, such as those at Broder & Orland LLC consider is how a divorce will impact your taxes. Factors such as who will take the children as dependency exemptions and who will be entitled to take the mortgage and real estate tax deductions on the marital residence can easily slip through the cracks. Your divorce will impact your taxes in a number of ways, but three of the more important areas to consider are the following: your filing status, what exemptions and deductions you are entitled to versus those your spouse is entitled to, and the treatment of support payments. Part I of this article will address how a person’s filing status and the exemptions and deductions to which he or she is entitled are affected by divorce.

Filing Status

Your filing status in any given calendar year will depend on your marital status at the end of the year. If you are divorced at any time in a given calendar year, you and your former spouse are precluded from filing as a married couple in that year regardless of when your divorce occurs. This rule does not apply, however, until your divorce is finalized. If, for example, you begin the dissolution process in 2017 but do not obtain a final divorce judgment until May of 2018, you can file as a married filing jointly in 2017, but not in 2018.

Being precluded from filing as a married couple can have a significant financial impact on you and your former spouse. At Broder & Orland LLC, we often tell clients to seek the advice of an accountant with respect to this issue. An accountant can prepare pro forma tax calculations to give you an estimate of the difference in your tax liability if you file as single or head of household versus married filing jointly. Depending on the extent of the difference for filing solely versus jointly, it may make sense to postpone the date of your divorce, if possible, until the following year. Doing so will enable you and your spouse to file as a married couple for an additional year.

Once you and your spouse are divorced and filing separately, you will need to consider whether you qualify for head of household status. Filing as head of household is typically a favorable tax status, however, filing as head of household requires you to be unmarried, pay more than half the cost of keeping up a home for a year, and have a “qualifying person” (such as your child) living in the home with you for more than half of the year. If you are unable to file as head of household, you will file as a single taxpayer after your divorce, unless and until you are remarried and opt to file jointly with your new spouse.

Exemptions & Deductions

The next area to consider is what deductions you and your former spouse will be entitled to after your dissolution. If you have minor children, you likely take a child dependency exemption on your tax returns. As part of your settlement, you and your spouse will need to determine whether you will share the available exemption(s) or whether one party will always be entitled to the exemption(s). You will want to make sure that whatever you decide is supported by the relevant IRS and State of Connecticut tax regulations and is memorialized in your Separation Agreement.

If you and your spouse own a home at the time of your divorce, or you sold a home in the year you are divorcing, you will need to determine who will take the deductions for the mortgage interest and real estate taxes related to the home. Who is entitled to take these deductions can become an important point of negotiation in any well-drafted Separation Agreement. Factors that are considered when negotiating who can take these deductions include who paid the mortgage and real estate taxes during the marriage and during the divorce, who will be paying these expenses after the divorce, and who is keeping the house after the divorce. If the house is being sold as part of the divorce, another point to be negotiated in a settlement is who will be responsible for paying any capital gains tax, if applicable, in the year of the sale.

Part II of this series will discuss a third way that your divorce will impact your tax return: the treatment of support payments paid by one party to the other.

Imputing Income for Child Support Purposes

In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Essentially, pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula, which yields a weekly child support obligation that one parent must pay to the other.

For Divorce and Family Law attorneys in towns such as Greenwich and Darien, it is not uncommon for a client to raise concerns about the amount of child support he or she may be entitled to receive because the would-be obligor parent’s income has either declined dramatically from what it once was, or may decline dramatically in the near future for any number of reasons. In some situations, the decline or potential decline in income may be involuntary, such as where a parent is fired or laid off by an employer.  However, in other situations, the decline or potential decline in the income of a potential obligor may result from voluntary actions on that parent’s part, such as (a) an intentional career change into a less lucrative line of work; or (b) in some extreme cases, intentional and nefarious measures taken by a potential obligor spouse to reduce his or her income for the specific purpose of minimizing child support obligations. Consider, for example, a scenario in which a potential child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue in order to pursue a career as a musician.  Alternatively, consider a scenario in which the same potential child support obligor involuntarily loses his or her high-paying job in finance, but then fails to make diligent efforts to find commensurate employment.

Notably, Connecticut courts have a means of addressing what lawyers often refer to as “voluntarily unemployment” or “voluntary underemployment,” in order to ensure that children receive adequate and fair financial support. Voluntary unemployment or underemployment occurs when a parent voluntarily makes less income then he or she formerly received or, upon experiencing an involuntary reduction in income, subsequently fails to make diligent efforts to find employment at a level equal to or better than income formerly received. In such circumstances, courts have the ability to attribute or “impute” income to an obligor parent for purposes of determining that parent’s child support obligation. In other words, when plugging the obligor parent’s income into the mathematical child support formula referenced above, courts may utilize an income figure for the obligor parent that reflects the amount of income that parent could potentially be earning (commonly referred to as “earning capacity”) rather than the amount the parent is actually earning.

In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ. Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination. However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health. It is not uncommon in earning capacity cases for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.

Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise.  At Broder & Orland LLC, we have extensive experience with earning capacity issues  and have a well-established track record of achieving favorable results for our clients in such matters.

Sarah E. Murray Published in Fairfield County Bar Association Quarterly, November 2017

The Winter 2017-18 edition of The FCBA Quarterly featured an article penned by Attorney Sarah E. Murray. Her article, “Modification of Alimony in Connecticut Based on Cohabitation,” discusses Connecticut law pertaining to alimony and the modification thereof, as well as answers commonly asked questions regarding cohabitation.

Click here for access to the most recent edition of The FCBA Quarterly, and look for Attorney Murray’s  article on page ten!

Am I Entitled to be Compensated for Assets Dissipated by my Spouse?

This Week’s Blog by Christopher J. DeMattie

When a divorce action is instituted in Connecticut, whether you reside in Greenwich, Westport, or any other municipality in this State, the Automatic Orders go into effect, which provide certain protections to your family’s assets. But what happens to the assets prior to the Automatic Orders going into effect?  Generally, you and your spouse are vested with the authority to spend marital funds for your own enjoyment, however there are exceptions which may entitle you to be compensated for your spouse’s spending during the marriage.

The controlling Connecticut law on “dissipation” is based on the rulings in the 2008 Supreme Court cases Gershman v. Gershman, 286 Conn. 341, (2008), and Finan v. Finan, 287 Conn. 491, (2008).

In Gershman our Supreme Court concluded that, at a minimum, dissipation in the marital dissolution context requires the alleging party to prove financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.

In, Finan, our Supreme Court expanded the elements provided in Gershman, to include that, in order for a transaction to constitute dissipation of marital assets for purposes of equitable distribution under § 46b–81, it must occur either: (1) in contemplation of divorce or separation; or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.

Thus, in order for you to make a dissipation claim you have the burden of proving ALL of the following elements: (A) the dissipation occurred either: (i) in contemplation of divorce or separation; or (ii) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown; (B) the financial misconduct involved intentional waste or a selfish financial impropriety; and (C) such financial misconduct was for a purpose unrelated to the marriage.

The element of “temporal restriction” established under Gershman and Finan create a potential cause of action to seek compensation for marital funds spent or transferred by your spouse prior to the Automatic Orders going into effect.  Proving this element often requires evidence about the state of your marriage at the time the financial transaction(s) occurred.

The elements of “intentional waste” and “selfish financial impropriety” as well as “purpose unrelated to the marriage” depend on the nature of the financial transaction(s). Courts have generally found that financial transactions related to gambling, drugs, alcohol, affairs, and extraordinary non-regular gifts to “friends” are unrelated to the marriage. Conversely, regularly reoccurring gifts to family members, funds spent on children, paying court ordered obligations, and even bad business decisions may not rise to the level of “intentional waste,” “selfish financial impropriety,” or “a purpose unrelated to the marriage.” These issues depend on the specific facts and circumstances of your marriage.

Therefore, even a sharp disagreement between your and your spouse over the wisdom of an expenditure, without more, does not necessarily render that expenditure a dissipation of martial assets.  The test is whether the asset was actually wasted or misused. Furthermore, the temporal restrictions better assist courts in determining the impropriety of a your spouse’s actions, namely, whether the actions were carried out, at least in part, to deprive you of assets that would otherwise be available for equitable division by the court.

If a Court determines that your spouse dissipated assets, the Court has the authority to issue remedial orders to make you whole or to fashion other orders such as awarding you additional assets or increasing or decreasing the alimony award, depending on whether you are receiving or paying alimony.

The attorneys at Broder & Orland LLC are experienced with dissipation claims in the marital dissolution context. We are adept at advising our clients on the strategies and the multitude of factors considered by a Court in fashioning orders related to a dissipation claim.

Prenuptial Agreements in Connecticut: Financial Disclosure

This Week’s Blog by Sarah E. Murray

At Broder & Orland LLC, we tell any person who seeks our advice in connection with the drafting and negotiation of a Prenuptial Agreement that the financial disclosures accompanying the Prenuptial Agreement are one of the most important aspects of the agreement. The reason that the financial disclosures are so important is because General Statutes Section 46b-36g(a)(3), which is applicable to all Prenuptial Agreements entered into after October 1, 1995, states that a Prenuptial Agreement will not be enforceable against a party opposing its enforcement if that party proves that, before the agreement was executed, he or she was not provided with “fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party.” In other words, a party to a Prenuptial Agreement can seek to have the Prenuptial Agreement set aside in the event of divorce if he or she can prove that the other party (typically the moneyed spouse) did not adequately disclose his or her assets or income.

Lack of adequate financial disclosure is one of the most common reasons that Fairfield County divorce litigants cite in favor of a claim that a Prenuptial Agreement should not be enforced. It is for this reason that parties to a Prenuptial Agreement need to take care in preparing their financial disclosures, which are typically attached to the Prenuptial Agreement. The question that clients ask is: What constitutes adequate financial disclosure for a Connecticut Prenuptial Agreement to be enforced? While there is no one answer, a review of Connecticut case law on this issue provides some guidance.

One of the more instructive cases on the issue of financial disclosure is Friezo v. Friezo, 281 Conn. 166 (2007). In that case, the trial court had found that the parties’ Prenuptial Agreement was unenforceable based on inadequate financial disclosure and the Wife not having reasonable opportunity to consult with counsel. The Husband appealed. The Supreme Court reversed the trial court’s orders, finding that the Prenuptial Agreement was enforceable. At the time of the divorce, the estate was worth approximately $23 million, including over $6.5 million of the Husband’s premarital assets. The Wife had claimed that her attorney did not show her the Husband’s financial disclosure at the time they met regarding the Prenuptial Agreement, though it was in his possession at that time. His financial disclosure showed his assets, one liability, and also reflected his income. The draft originally provided to the Wife’s attorney was the one attached to and incorporated into the parties’ Prenuptial Agreement. At trial, the Wife did testify that she had acquired substantial knowledge regarding the Husband’s finances prior to the parties’ marriage. The Wife claimed that the signing of the Prenuptial Agreement, which was 24 hours before the wedding, was the first time that she had seen the Husband’s financial disclosure.

The Supreme Court examined for the first time the meaning of “fair and reasonable” financial disclosure, as referenced in the statute, stating: “’[F]air and reasonable’ disclosure refers to the nature, extent and accuracy of the information to be disclosed, and not to extraneous factors such as the timing of the disclosure.” Id. at 183. The Court noted that the statute does not require that the financial disclosures be appended to the agreement. Id. The Supreme Court also looked to McHugh v. McHugh, 181 Conn. 482 (1980), the case governing the enforcement of Prenuptial Agreements entered into prior to October 1, 1995, in its analysis. In McHugh, the Supreme Court had pointed out that a party cannot knowingly waive his or her rights with respect to another party’s income or assets without sufficient knowledge as to the other party’s financial circumstances. “[F]inancial disclosure in Connecticut must be understood as a burden to inform borne solely by the disclosing party.” Id. Therefore, the focus is on the actions of the disclosing party, rather than on the party to whom disclosure is being made. The Supreme Court further stated:

The overwhelming majority of jurisdictions that apply this standard do not require financial disclosure to be exact or precise….We agree with the majority of jurisdictions that a fair and reasonable financial disclosure requires each contracting party to provide the other with a general approximation of their income, assets and liabilities, and that a written schedule appended to the agreement itself, although not absolutely necessary, is the most effective method of satisfying the statutory obligation in most circumstances.

Id. at 189-91 (Citations omitted; emphasis added)

In Friezo, the Supreme Court ultimately determined that, under the McHugh analysis discussed herein, the Husband’s financial disclosure was “more than adequate” to allow the Wife to waive her statutory rights, as it provided her with his gross income from all sources for the year prior and listed his assets (most of which were valued individually) and liabilities. The trial court had not found that the financial disclosure was inaccurate or incomplete, but rather that the Wife did not have the expertise to understand it.  The Supreme Court responded “[w]hen the burden is on each party to inform, as established in McHugh, the test for adequate disclosure need not take into account or depend on the capacity of the receiving party to understand or digest the information received.”  Friezo, 281 Conn. at 192.  Furthermore, whether the Wife had sufficient time to review the disclosure does not go to the issue of whether it was fair and reasonable.  Id. at 194.  Justice Norcott dissented, stating that he would have found the financial disclosure to be inadequate for failing to fully explain the assets listed (particularly certain partnership interests).

In Oldani v. Oldani, 132 Conn. App. 609, 624 (2012), the trial court determined that the parties’ Prenuptial Agreement was enforceable. At the time of the signing, financial disclosures were attached to the Prenuptial Agreement. The Husband’s net worth at that time was over $5 million. His disclosure listed assets and liabilities itemized by category, along with schedules that provided additional details regarding bank accounts, notes, loans. He also included a schedule listing 11 commercial real estate properties in which he had an interest, including his percentage ownership, the replacement value, the mortgage debt, annual mortgage payments, and the net equity. The disclosure also included the gross rents received, as well as the annual operating expenses and “NOI” (net operating income). The disclosure did not specifically set forth his income, but the trial court found that there was sufficient information from which to extrapolate it. The Appellate Court found that the Husband had failed to provide a fair and reasonable disclosure of his income prior to the Prenuptial Agreement being signed. The word “income” did not even appear on the disclosure.

In contrast, in Beyor v. Beyor, 158 Conn. App. 752 (2015), the trial court enforced the parties’ Prenuptial Agreement and the Wife appealed, claiming that the Husband had failed to disclose his Schedule E income on his financial disclosure. The Appellate Court compared this case to Oldani, and noted that what is fair and reasonable financial disclosure may depend on the circumstances of the case.  Id. at 764. The Appellate Court found that there was fair and reasonable financial disclosure. Although the Husband had not disclosed his Schedule E income, he had disclosed the business interests that were the source of that income and gave a value to those interests.

The above cases are just a sampling of cases regarding the sufficiency of financial disclosures in connection with Connecticut Prenuptial Agreements. As the case law discussed in this article demonstrates, each case is fact specific, but, generally speaking, the more comprehensive the financial disclosure, the better.

Should I Waive My Right to Alimony?

When you are divorced in Connecticut, the Court may make an award of alimony–the payment of money from one spouse to the other (sometimes also referred to as “spousal support” or “maintenance”). Alimony is based on the presumption that spouses have a continuing duty to support each other financially while a divorce is pending and/or after the divorce is granted.

If your spouse has historically been the primary wage earner or primary source of financial support for the family, it is typical for that arrangement to continue after the divorce with an award of alimony to you, as the non-working or lesser earning spouse.  However, what happens when you and your spouse have similar levels of income, or if neither of you work? In that case, there may be an alimony waiver, or an award of “one dollar a year” of alimony.

An alimony waiver means that you and/or your spouse agree that no award of support, maintenance or alimony will be made by the Court at the time of the divorce. If you waive alimony at the time of your divorce, you are also waiving any claim for past or future alimony. There are different reasons why you may consider waiving alimony:

  • You are the primary wage earner in your family
  • You have not historically relied on your spouse for financial support
  • You and your spouse were married for a very short period of time
  • You and your spouse have similar levels of income
  • You are confident in your ability to support yourself in the future

There is no requirement that an alimony waiver be mutual. Alimony can be waived by one party and not by the other.  If you decide to waive alimony, at your divorce the Judge will ask you questions specifically about that alimony waiver, in order to determine that you understand what it means to waive your right to support and to verify that you can care for yourself financially.

What happens if you are comfortable waiving alimony at the time of your divorce, but do not want to preclude your right to ask for an award of alimony in the future? The answer may be that your spouse pays you “one dollar a year” in alimony for a certain period of time (the alimony term). The $1 is symbolic. It really means that no alimony will be paid to you for the time being, but it leaves the door open for you to ask for a modification of the alimony amount in the future. Leaving alimony open with an award of “one dollar a year” may be appropriate if:

  • You are currently working but your future employment is uncertain
  • There is a possibility that your spouse will return to the workforce or make significantly more money in the future
  • There are health concerns that prevent you from knowing if you will be able to support yourself in the future
  • You have been married for many years and you and/or your spouse are of advanced age

Experienced divorce counsel in Westport and Greenwich can help you determine if the circumstances of your case make an alimony waiver realistic or preferable to “one dollar a year” in alimony. At Broder & Orland LLC we are adept at advising our clients on the strategies and the multitude of factors considered by a Court in establishing an alimony award.

Dan v. Dan: Modification of Alimony in Connecticut Divorce Cases

This Week’s Blog by Eric J. Broder

The following is a discussion and summary of a seminal case when dealing with the modification of alimony in the state of Connecticut. Dan v Dan, 315 Conn. 1 (2014) has created quite a stir in the Connecticut divorce bar. It is an important case for practitioners and clients dealing with post-judgment alimony issues to understand. Below is an analysis of the case.

In 2000, a judgment of divorce was entered. The parties had been married more than twenty-nine years. They had three children, all of whom had attained the age of majority before the divorce. At that time of divorce, the Defendant’s base salary was $696,000.  The Agreement provided for the Plaintiff to receive $15,000 per month in alimony, as well as a sum equal to 25% of any bonus income that the Defendant received. The parties also agreed that the Defendant’s alimony obligation would cease when he reached the age of sixty-five or his retirement, whichever occurred first. The Defendant was 50 years old at the time of the divorce and the Plaintiff was 51 years old.

Ten years later, in 2010, the Plaintiff filed a modification of alimony, claiming that her medical expenses had “skyrocketed” and the Defendant’s income had increased substantially.   The Court found that the Plaintiff had failed to prove a substantial change in her circumstances because of an increase in her out-of-pocket medical expenses. The Defendant stipulated during the hearing, however, that he had a substantial increase in his income since the divorce and that this constituted a substantial change in circumstances.

In 2010, the Defendant worked excessively long hours to earn an annual salary of $3.24 million and an additional $3 million from cashing out stock options. At the time of the post-judgment proceeding, the Plaintiff was 61 years old, the Defendant 60 years old. Though the Plaintiff had several health problems, including diabetes that was poorly controlled, this was a circumstance which had existed at the time of the divorce. (The Plaintiff had no college degree and although she had once worked as a receptionist and executive assistant, she had not been employed since 1977.)

After addressing the statutory factors set forth in § 46b–82, the trial court granted the Plaintiff’s motion and increased the Plaintiff’s alimony award from $15,000 to $40,000 per month, plus 25% of any bonus in come that the Defendant received. The court modified the term of alimony to lifetime. In making its decision, the trial court focused on the length of the marriage, the health of the parties, the station and occupation of the parties, the amount and sources of income of each party, and the vocational skills of each party.

 The Supreme Court held that in the absence of certain exceptional circumstances, a substantial change in income standing alone was not sufficient to grant a motion to modify alimony.   The Court set forth a new inquiry to consider when the only substantial change is an increase in payor’s income: (1) Was the original award sufficient to fulfill the original purpose? (2) Does the award continue to fulfill the original purpose? The decision does not discuss in detail what exceptional circumstances might be.

In determining whether an alimony award should be modified when there has only been an increase in the payor spouse’s income, the trial court can only consider: the length of the marriage, the cause of the divorce, and the age, station, vocational skills and employability of the parties. However, these factors shall only be considered in the context of determining the initial intent of the alimony award.  They should not be considered as reasons for altering the purpose of the initial award.  The trial court does not have the discretion to retry issues that have already been decided.

The Supreme Court remanded for a new hearing because the trial court did not address the issue of whether exceptional circumstances existed in this case to justify a modification upward of alimony. The Supreme Court surmised that the original purpose of alimony in this case was to allow the Plaintiff to maintain the standard of living she had during the marriage. The trial court made no finding as to whether the original award continued to be sufficient to meet the original purpose of allowing the Plaintiff to maintain the standard of living she had during the marriage, which is a different question than whether her expenses are met.