Category: Divorce

E-mail and Computer Hacking in a Connecticut Divorce

Can I Access my Spouse’s E-mails, Phones, or Computers?

The short answer is no, unless you received explicit authorization to do so or maintain a shared account.  An example of a shared account could be a family cloud account, e-mail account, calendar, computer, or other electronic device(s).  However, it is important to note that having access to a shared family computer or other electronic device does not give one the right to access the other party’s sole accounts on said device(s) without explicit authorization.  A party may be authorized to view or access certain information in such accounts or devices for a specific purpose but may not exceed that authorization.

Could there be Ramifications for Accessing my Spouse’s E-mails, Phones, or Computers?

 Yes; there could be both State and Federal criminal and civil ramifications.

Pursuant to Connecticut General Statutes Section 52a-251(b)(1), it is illegal in the State of Connecticut for a person to access a computer system without authorization when knowing that he or she is not authorized to do so.

On a Federal level, pursuant to the Stored Communications Act, 18 U.S.C. Section 2701, a person who intentionally access an e-mail account not belonging to him or her without authorization, or intentionally exceeds an authorization to access that e-mail account, shall be civilly liable to the violated party.

Further, guessing a password based on knowledge of or familiarity with the password is not a defense and does not make intentionally accessing a computer without authorization and obtaining any information from such protective computer legal.  In short, information that is specifically protected by a password, to which a party is not privy, cannot be accessed, read, copied, or distributed without the authorization of a password holder.  18 U.S.C. Section 1030(a)(2)(C).

If I Obtained Information from my Spouse’s E-mails, Phones, or Computers, can it be used in Court Proceedings?

No.  Pursuant to Connecticut General Statutes Section 52-184a, evidence obtained illegally by the use of any electronic device is inadmissible in any Connecticut Court.

How Can I Legally Obtain Information from my Spouse’s E-mail, Phone, or Computer?

The discovery process in a Connecticut divorce is broad.  There are numerous mechanisms to legally obtain information from your spouse that may be stored electronically.  In a Request for Production, you could ask for e-mails, text messages, and social media activity, for example.  Another method would be to take your spouse’s Deposition.  In a Connecticut divorce action, you and your spouse each have the right to take the other party’s Deposition.  During a Deposition, questions will be answered under oath.  Additionally, you can each request that the other party bring certain documents to a Deposition.  Depositions are not just limited to the parties.  Third-party Depositions may also be taken; for example, if you believe that your spouse had an extramarital affair, his or her paramour could be deposed and asked to produce similar documents.  Finally, a Motion for the digital imaging of an electronic device could be filed and prosecuted.

It is important to speak to an attorney before attempting to access your spouse’s online accounts and electronic devices.  At Broder Orland Murray & DeMattie LLC, our attorneys are well-versed in the laws involving electronic accounts and devices.  Our attorneys will skillfully work with you to ensure that electronic evidence is obtained through lawful discovery channels so that it may be used in litigation, if necessary.

Bitcoins and Cryptocurrencies: What to know before and during your Connecticut divorce

Just as Zoom has become a word to describe all video conferences, Bitcoin has become the term to describe all cryptocurrencies.  Previously individuals came to our office concerned their spouse was hiding assets in a Swiss or offshore bank account.  With cryptocurrency becoming mainstream, individuals are now asking us how to determine if their spouse is hiding Bitcoin.  The problem is that most parties (including the investor) and lawyers know very little about cryptocurrency, including how to track it, how to value it, or how to divide it.  In addition, a savvy spouse can try to use cryptocurrency to hide assets when going through a divorce.  Thus, it is essential to know what to look for when divorcing a spouse who may have a cryptocurrency investment.

What is cryptocurrency?

Cryptocurrency (or “crypto”) is a digital asset based on a distributed network across many computers without requiring a third party, such as a bank or financial institution. This decentralized structure allows digital assets to exist outside the control of governments and central authorities. It enables individuals (“peers”) to connect through a digital process that reveals the value of transactions but not the identities of those conducting them. Because banks do not hold cryptocurrency, a financial institution cannot be subpoenaed to obtain information about the currency holder, unless the holder chooses to purchase or his/her currency using an exchange.

What are common cryptocurrencies?

The most common cryptocurrencies are Bitcoin, Enterum, and Litecoin.  “Memecoins” such as Doge are currently very popular.  Initially started as a joke in 2013, Doge was the sixth-largest digital coin as of April 2021, with a total market value of approximately $42 billion.  It takes its name and branding from the “Doge” meme, which depicts a Shiba Inu dog alongside nonsensical phrases in multicolored text.

How are cryptocurrencies stored?

Cryptocurrencies are stored in “hot” or “cold” digital wallets.  Hot wallets are connected to the internet and are more accessible but less secure. Hot wallets are either (1) downloaded and installed on a computer and accessible only from that computer, (2) accessible online from any device via the cloud, or (3) on phone Apps, such as Coinbase.  Cold wallets are kept offline and are less accessible but more secure. A user’s private and public access keys are usually stored on a USB device.

How do I know if my spouse has cryptocurrency during my divorce?

In a Connecticut divorce, each party is required to submit a Financial Affidavit.  A Financial Affidavit is a sworn statement listing the affiant’s income, expenses, assets, and liabilities.  Each party must disclose all assets on his or her Financial Affidavit, which includes cryptocurrencies.  However, you have the right to serve interrogatories, requests for documents, subpoenas, and/or depositions.  Once you receive responses to your discovery requests, you and your attorney will have the opportunity to review the materials in search of cryptocurrency activity, such as:

  1. Bank, Venmo, PayPal, and Credit Card Statements – This is generally the first place to look since individuals often buy and sell cryptocurrency over exchanges. Thus, if you see a payment to Coinbase, your spouse may own cryptocurrencies.
  2. Tax Returns – Beginning in 2019, taxpayers are required to “check the box” on Schedule 1 to Form 1040 to disclose whether they received, sold, sent, exchanged, or otherwise acquired any financial interest in any “virtual currency.”
  3. Electronic Devices and App Stores – The common cryptocurrency exchanges (Coinbase, Kracken, and Binance) offer Apps for mobile crypto transactions. If you share a phone account, you may be able to access the history of all Apps downloaded to any phone on your plan. If you cannot obtain this information on your own, your attorney may request it be produced during discovery.

The above methods can help determine if your spouse owns cryptocurrencies in a “hot wallet.” However, if your spouse purchased cryptocurrencies years ago and holds those cryptocurrencies in a “cold wallet,” it will be much more difficult to locate the same as there is a limited information trail.  Thus, if you have any proof of cryptocurrency, do not delete it.

Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the area of family law and divorce.  Cryptocurrency can hold real value. Therefore, it is crucial to make sure that it is properly discovered and valued in a Connecticut divorce.    Our lawyers are well versed in the discovery process, including searching for cryptocurrencies.  If you know or suspect that your spouse owns cryptocurrency, let us know immediately so you can formulate a strategy to protect your rights.

What Is The Order Of Pleadings In A Connecticut Divorce?

Pursuant to Connecticut Practice Book § 25-11, the order of pleadings in a connection divorce action is (a) Plaintiff’s Complaint, (b) Defendant’s Motion to Dismiss the Complaint, (c) Defendant’s Motion to Strike the Complaint of Claims for Relief, (d) Defendant’s Answer, Cross-Complaint, and Claims for Relief, (e) Plaintiff’s Answer.  The pleadings’ order must be followed as the filing of any pleading effectively waives the right to file any other pleading that precedes it.  The first responsive pleading by the defendant must be filed within thirty days of the return date.  After that, the pleadings advance one step every 30 days from the filing of the previous pleading or order from the court on the previous pleading.

 

Is There A Strategic Benefit To Filing Certain Pleadings?

Defendant’s Motion to Dismiss the Complaint.  A motion to dismiss in a divorce should be used to assert: (i) lack of jurisdiction over the subject matter, (ii) lack of jurisdiction over the person, (iii) insufficiency of process, and (iv) insufficiency of service of process.  A defendant wishing to assert grounds ii, iii, or iv above must do so by filing the motion to dismiss within thirty days of the filing of an appearance.  Any potential claim not asserted within the thirty days is waived.  A claim of lack of subject matter cannot be waived and can be raised by parties or by the court at any time.  A memorandum of law, and where appropriate, supporting affidavits as to facts not apparent on the record, must be filed in conjunction with the motion to dismiss.  If an adverse party objects to the motion to dismiss, they must file an objection, and a memorandum of law at least five days before the motion to dismiss is to be considered on the short calendar.  If a motion to dismiss is denied with respect to any jurisdictional issue, Defendant may plead further without waiving his or her right to contest jurisdiction further.

 

Defendant’s Motion to Strike the Complaint.  A motion to dismiss during a divorce should be used to contest: (i) the legal sufficiency of the allegations of the complaint, or of any counts thereof, to state a claim upon which relief can be granted, (ii) the legal sufficiency of any claim for relief in any such complaint, (iii) the legal sufficiency of any such complaint, or any count thereof, because of the absence of any necessary party, (iv) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same can be stated in one or more counts, or (v) the legal sufficiency of any answer to any complaint or cross-complaint or any part of the answer contained therein.  As with a motion to dismiss, each motion to strike must be accompanied by an appropriate memorandum of law, citing the legal authorities upon which the motion relies.  Similarly, if an adverse party objects to the motion to strike, they must file an objection and memorandum of law at least five days before the motion to strike is to be considered on the short calendar.  If a motion to strike is granted in whole or part, the party whose pleading has been stricken may file a new pleading.  If a party failed to do so within fifteen days, the court may, upon motion, enter judgment against the said party on the said stricken complaint.  

 

Defendant’s Answer, Cross-Complaint, and Claims for Relief.  The defendant’s answer is a response to each claim in the plaintiff’s complaint during a divorce.  Only three responses are proper: (i) admit, (ii) deny, or (iii) the defendant has insufficient information to form a belief and leaves the leader to his or her proof.  The cross-complaint and claims for relief is the defendant’s lawsuit against the plaintiff.  Even if a defendant does not dispute the type of proceeding, it is generally advisable to file a cross-complaint because if the plaintiff withdraws the complaint and the defendant wishes to proceed, the action is not terminated.  If a cross-complaint is not filed, the action is terminated, and the defendant would then need to file a complaint and restart the entire process.  

 

Special Pleadings If A Premarital or Postnuptial Agreement Exists In A Divorce

It is important to be aware of the existence of any premarital and/or postnuptial agreements, as the time to seek enforcement of the same is time-sensitive.  The party seeking enforcement must specifically demand enforcement of the agreement, including its date, within the party’s claim for relief.  If the plaintiff does not seek enforcement in his or her complaint, and the defendant wishes to seek enforcement, he or she must do so within sixty days of the return date, unless otherwise permitted by the court.  Conversely, if a party seeks to avoid the enforcement of a premarital and/or postnuptial agreement claimed by the other party, he or she shall file a reply specifically demanding avoidance of the agreement and stating the grounds thereof.  The time to file such pleading is within sixty days of the claim seeking enforcement unless otherwise permitted by the court.  

Pursuant to § 46b-36g(a) a premarital agreement shall not be enforceable if the party against whom enforcement is sought proves: (i) such party did not execute the agreement voluntarily, (ii) the agreement was unconscionable when it was executed or when enforcement is sought, (iii) before the execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of the property, financial obligations and income of the other party, (iv) such party was not afforded a reasonable opportunity to consult with independent counsel.

Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, CT, concentrates specifically on the areas of family law, matrimonial law, and divorce.  We are well versed in the procedure of pleadings in family law matters and counsel our client about the impact and use of various pleadings in his or her case. 

Getting Divorced During COVID

It is possible to initiate, work through, and finalize a divorce during COVID. And you will not even have to go to Court. Our office is handling these cases regularly and with positive results.

In some instances, the parties were already contemplating divorce before the COVID pandemic arrived. In others, COVID either stoked the idea or created situations, such as living and working on top of each other, that precipitated the desire to get divorced.

Whether we mediate your case or litigate it with opposing counsel, our goal is always to settle. Since approximately 95% of all divorce cases ultimately settle, our firm’s philosophy is to endeavor to reach an amicable resolution sooner than later, saving the parties and their family the emotional strain and financial drain that often accompany a divorce action.

However, some cases are not conducive to settling such as custody battles, relocation matters, and cases involving abuse or violence. Other cases defy settlement when one party has an unrealistic expectation regarding alimony or the allocation of marital assets. When cases like these cannot be resolved out of Court, our firm’s lawyers are tenacious in strenuously litigating on behalf of our clients. We have tried some of the most notable cases in Connecticut for which we are highly acclaimed by our colleagues and held in esteem by the judiciary. We are always ethical, professional, prepared, and communicative with our clients.

man signing prenuptial agreementWhether your case involves complex financial matters such as alternative assets, private equity interests or equity awards, or custodial issues involving physical, emotional, or substance abuse, we draw on the years of experience in our firm and the talent of our lawyers to develop a strategy to achieve the best result. We often enlist the assistance of collateral experts such as lawyers in other fields of practice, accountants, investment advisors, business valuation experts, appraisers, and therapists.

Because our firm is one of the largest family law firms in Connecticut, we can handle a wide variety of cases.  We handle not only complex financial and custody cases but also those that are less complex but still very significant to our clients. These may involve allocating retirement funds, collecting overdue child support, working through parenting plans, or finding a constructive way to address debt. To us, no case is too small or too large. To each client, his or her case is the most important case with effects that can linger well beyond divorce. And that is why we do not drop off the day you get divorced. We work hard to assist you and your family with the transition to post-divorce life.

Separation Agreements

What Is A Separation Agreement?

A separation agreement incorporates the terms of the parties’ final agreement on all outstanding issues connected with their divorce or legal separation.

What Topics Are Included In A Separation Agreement?

Separation agreements cover all areas of the parties’ final agreement, such as alimony, child support, and child(ren)’s expenses, if applicable, real and personal property division, life insurance, if applicable, health insurance and medical expenses, taxes, and a custody and parenting schedule, if applicable.   

When Are These Agreements Signed?

Separations agreements are signed at the end of a divorce or legal separation matter after the parties have reached an agreement on all outstanding issues.  They are signed before witnesses and a notary public or a commissioner of the superior court.    

How Do Separation Agreements Become Court Orders?

Prior to the COVID-19 pandemic, separation agreements had to be approved by the court at an uncontested hearing.  Due to the pandemic, the court now permits separation agreements to be approved without a Court appearance, otherwise known as “on the papers.”  The agreement, together with signed, sworn affidavits of both parties and a joint request for entry of judgment of dissolution of marriage must be submitted to the court.  A judge will review your separation agreement to ensure that its terms are fair and equitable under the circumstances and that the custody and parenting schedule, if appliable, is in the best interests of the child(ren).  Each party’s signed, sworn affidavit must include basic background information, as well as statements that you believe that the separation agreement is fair and equitable under the circumstances, that you read and understand its terms, that no one forced or coerced you to sign it, and that you signed it of your own free will.   After the judge has reviewed the separation agreement and is satisfied with the statements contained in each party’s affidavit, the separation agreement will be approved and entered as a court order.

How Do I Enforce The Terms Of An Agreement?

Separation agreements are enforced through motions for contempt.  If you believe that your former spouse has violated any of the terms of your separation agreement, a motion for contempt should be filed.  A motion for contempt alleges a willful violation of a clear and unambiguous court order, which must be proven at a hearing by clear and convincing evidence.  After a hearing on a motion for contempt, a judge may find the offending party in contempt, punish him or her by ordering him or her to pay the non-offending party’s attorney’s fees and costs, and may order the offending party to comply with the terms of the court order.

Can An Agreement Be Modified?

In some cases, yes.  Terms related to real and personal property may not be modified.  However, if permitted by the separation agreement, terms related to alimony may be modified in the event of a substantial change in circumstances.  Child support is always modifiable in the event of a substantial change in circumstances.  If you believe a substantial change in circumstances has occurred, your attorney can file a motion for modification, which must be addressed by the court at a hearing before any relief may be granted.  Parties are also free to modify the allowable terms by further agreement.  Any such agreement should be memorialized in a stipulation or agreement and presented to the court for approval.

At Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, it is our goal to have your case be resolved by agreement.   Our attorneys are skilled in drafting, enforcing, and modifying these agreements in Connecticut. We will ensure that your separation agreement incorporates all relevant terms and that you fully understand it.  If your agreement needs to be modified or enforced, you should speak with us to discuss your options.

Estate Planning Post Divorce – What You Need To Know

You and your spouse will no longer be spending a long life together as you had once planned.  During marriage spouses typically designate one another as beneficiaries of life insurance policies, retirement plans, wills, and trusts.  A divorce disrupts the long-term plans made together, estate planning being one. It is extremely important to update them following divorce.  So, in the flurry of the aftermath do not forget to take the following essential steps:

  1. CHANGE YOUR BENEFICIARY DESIGNATIONS on life insurance policies and retirement plans, except as agreed to or ordered to at the time of divorce.  As unpleasant as it sounds, if you were to die following your divorce before changing beneficiary designations, your ex-spouse would receive the benefits of your life insurance policies and your share of retirement accounts.
  1. CHANGE YOUR WILL.  In Connecticut, a divorce has the legal effect of automatically revoking terms of your will that distribute to your ex-spouse.  However, there are other updates you will want to make such as re-designating your executor and trustees as oftentimes members of your ex-spouse’s family or friends have been named as successor agents estate planning.
  1. CHANGE OR APPOINT A GUARDIAN if you have minor children.  In Connecticut, the surviving parent has automatically deemed the guardian of your minor child(ren).  In the event the surviving parent dies while your children are still minors, the court may then look to whom you appointed in your will when it considers the best interests of the child(ren).
  1. CHANGE YOUR HEALTH CARE PROXY.  In the event you become incapacitated or cannot communicate due to illness or accident, someone other than your ex-spouse should make your healthcare decisions for you.
  1. CHANGE YOUR POWER OF ATTORNEY.  After your divorce, the last person you want to make decisions about your finances and bank accounts is your ex-spouse.  So if you had durable power of attorney naming your ex-spouse, execute a new one naming a relative or trusted friend.     
  1. PROVIDE YOUR SEPARATION AGREEMENT TO YOUR ESTATE PLANNER.  In the event of your death, the estate administrator will need to be aware of the obligations you have to your ex-spouse and children.

With offices located in Greenwich and Westport, the attorneys at Broder, Orland, Murray & DeMattie LLC offer comprehensive guidance through the wide range of legal issues that arise during divorce as well as those that may be impacted as a consequence.  We are knowledgeable in identifying issues that may arise post-dissolution, and whenever appropriate work with our clients, and trusts, and estate planning attorneys to make sure estate plans may be carried out as intended.

Simplifying Payment Of Children’s Extra-Curricular Activity Expenses Post-Divorce With An “Activity Fund”

In Connecticut, the purpose of statutory child support is to provide for a contribution toward the basic household expenses incident to raising a child, such as food, clothing, and a child’s share of shelter expenses.  Child support does not include the costs associated with a child’s extra-curricular activities, including things like sports and/or music activities, sports equipment, musical instruments, camps, tutoring, SAT prep courses, or driving classes (collectively, “extra-curricular expenses”). Typically, however, parents will agree to share the cost of a child’s extra-curricular expenses in some manner as part of a comprehensive divorce settlement, and well-crafted separation agreements typically contain provisions addressing payment and reimbursement of such expenses.

What Is A Children’s Activity Fund?

When it comes to payment of a child’s extra-curricular expenses post-divorce, as a practical matter, it is often the case that one parent will pay for 100% of a particular expense and then be owed a reimbursement payment from the other parent to account for that parent’s share of the expense.    Some agreements provide that a parent who fronts the cost of such an expense must send proof of payment to the other parent within some set time period (e.g., fifteen (15) days), at which point the non-paying spouse will have some set period of time by which he or she must reimburse the other parent for his or her share of the expense.   Other agreements contain “true-up” provisions, which require parents, at certain set intervals (e.g., on a quarterly basis), to tabulate how much each parent has spent on extra-curricular expenses during that interval, and then determine the appropriate reimbursement payment owed from one parent to the other.

A third and perhaps underutilized option for addressing payment of extra-curricular expenses post-divorce is for parents, post-divorce, to maintain a joint bank account that may be utilized for the sole purpose of payment of a child’s extra-curricular expenses.   We often refer to this as an Activity Fund.

How Does An Activity Fund Work?

In this model, as part of a comprehensive agreement, divorcing parents agree to set up a joint bank account that will be maintained after the divorce from which all of a child’s extra-curricular activity expenses shall be paid.  The parties agree to initially fund the account with a certain amount (e.g., $5,000) and further agree that when the balance falls below a certain amount (e.g., $1,000), each party is required to replenish the fund.  In the example above, if the allocation of payment of such expenses is 60/40, the parent who bears the 60% obligation would initially fund the account with $3,000, while the parent with the 40% obligation would fund the account with $2,000. Replenishment requirements can also be made proportionately.

Typically, an activity fund would be set up such that each parent has access to an ATM/debit card linked to the account and each party would be entitled to receive monthly statements from the Account.   

The parties’ separation agreement would expressly delineate which expenses of a child can be paid from the activity fund.  Notably, parties can certainly choose to expand the types of expenses that are governed by the activity fund to include other expenses of a child such as unreimbursed medical expenses or educational expenses.

What Are The Benefits Of Utilizing An Activity Fund?

Shared obligations to pay for a child’s extracurricular expenses post-divorce can, unfortunately, be a source of tension and conflict between ex-spouses.  It is not uncommon for divorce attorneys to receive calls from would-be clients complaining that they have not been reimbursed by an ex-spouse for his or her share of a child’s expenses, or that an ex-spouse continually fails to provide back-up documentation for shared expenses.  Sometimes these disputes even wind up in court.  Utilization of an activity fund is an easy and practical way of avoiding these types of headaches.

At Broder Orland Murray & DeMattie LLC, we are extremely experienced and adept at drafting separation agreements that include financial support provisions that are expressly designed to limit the potentially costly and time-consuming post-divorce disputes.

How Is Life Insurance Treated In A Connecticut Divorce Case?

By: Sarah E. Murray

How Do You Obtain Information Regarding Your Spouse’s Life Insurance Coverage During A Connecticut Divorce?

As part of the discovery (i.e., information gathering) phase of any Connecticut divorce case, it is critical that both sides disclose to one another information regarding any life insurance policies in place at the time, including life insurance policies provided through employment and life insurance policies held in a life insurance trust.  Each party has an obligation to disclose any life insurance policies on his or her life on a financial affidavit.  Even if a life insurance policy is held in a life insurance trust, it should still be disclosed on a financial affidavit, though not all parties do so.  It is common practice for Fairfield County divorce attorneys to request copies of life insurance policies and life insurance trusts as part of their formal discovery requests in order to obtain necessary information about insurance coverage.

Can A Party Change The Beneficiary Of His Or Her Life Insurance Policies During A Connecticut Divorce?

In Connecticut, changing the beneficiary of life insurance policies while the divorce action is pending is a violation of the automatic orders.  If a divorce attorney discovers that the opposing party has changed the beneficiary of his or her life insurance policy during the pendency of the case from his or her spouse to someone else, or has let the policies lapse by failing to pay the premiums, he or she can file a motion in order to request remedies from the court.

Is Life Insurance Considered Property That Can Be Divided By A Court?

Generally speaking, life insurance policies are not assets divisible by a Connecticut court.  The cash value of any whole life insurance policies, however, is an asset that can be divided in a divorce case.  Typically, the spouse who owns the whole life policy will keep the policy and the other spouse will receive an asset equivalent to his or her one-half share of the cash value.

Will Life Insurance Be Included In The Final Orders In A Connecticut Divorce?

Under Connecticut law, particularly General Statutes Section 46b-82, Courts can order that life insurance be maintained as security for a party’s alimony, child support, and/or college obligations.

Typically, the insured party will be the owner of the life insurance policy or policies, but sometimes parties negotiate for the other spouse to own the policy or policies. Experienced Fairfield County divorce attorneys will include provisions in a separation agreement stating that the insured party must provide proof of insurance coverage and beneficiary designation to the other party periodically in order to ensure that the agreed-upon life insurance coverage is in place. The parties can also agree that the life insurance company provides notification directly to the non-insured party if the life insurance policy lapses or if the premiums are not paid on time so that the non-insured party can seek the appropriate remedies.

How Are Life Insurance Trusts Treated During A Connecticut Divorce?

It is common in Fairfield County for divorce clients to have life insurance trusts that own their life insurance policies.  In cases where there is a life insurance trust, the divorce attorneys must obtain a copy of the trust in order to review the terms.  Some life insurance trusts exclude the other spouse as a beneficiary upon the filing of a divorce action and others exclude an ex-spouse.  Many times, experienced divorce attorneys will work with the parties’ estate planning attorneys in order to determine the terms of the trust and how best to accomplish the parties’ goals regarding life insurance coverage post-divorce.   

What If A Party Cannot Afford Life Insurance?   

General Statutes Section 46b-82 provides that a party may not be ordered to maintain life insurance after the divorce if he or she can prove by a preponderance of the evidence that he or she is uninsurable or cannot pay the cost of the life insurance premiums.  If a party has health issues or has other reasons, including age, for not being able to afford life insurance, he or she can request that life insurance not be ordered, or that a reduced amount of coverage be ordered.

Is A Life Insurance Obligation Modifiable?    

Unless there is an order precluding a party from modifying his or her life insurance obligation, most life insurance orders in Connecticut are modifiable by law if a party can prove a substantial change in circumstances.

Broder Orland Murray & DeMattie LLC is a Westport and Greenwich matrimonial law firm.  We have experience in dealing with life insurance coverage issues and can work with clients to ensure they are best protected, whether during or after a divorce.

My Spouse Wants A Divorce, But I Don’t – What Can I Do?

Do I Need To Consent To A Divorce?

No. In Connecticut, only one spouse needs to file for divorce. The other spouse does not need to consent to a Connecticut divorce action being filed.

What Are My Options If I Don’t Want A Divorce?

Once a divorce action has been filed by one spouse, there are limited options for the other spouse. Couples could attempt marriage counseling, or a party could request that the case be put on conciliation Status.

What Is Conciliation Status?

Conciliation status gives the parties an opportunity to work on their marriage with a conciliator while a divorce action is pending. Conciliation status is governed by Connecticut General Statutes Section 46b-53.

When Can I File For Conciliation Status?

A party in a Connecticut divorce may file for conciliation status on or after the return date of a complaint and prior to the expiration date of the ninety-day waiting period after the return date of a complaint.

Does My Spouse Need To Consent To Conciliation Status?

After a request for conciliation status has been submitted to the clerk, the clerk shall forthwith enter an Order that the parties meet with a mutually acceptable conciliator, and if they cannot agree as to a conciliator, then with a conciliator named by the court.

Who Is An Acceptable Conciliator?

The conciliator must be a clergyman, a physician, a domestic relations officer, or a person experienced in marriage counseling.

Are The Meetings With The Conciliator Mandatory?

Yes. There shall be two mandatory consultations with the conciliator by each party to explore the possibility of reconciliation or of resolving the emotional problems which might lead to continuing conflicts following the dissolution of marriage.

What Happens If A Party Does Not Attend The Mandatory Meetings?

Failure of either party to attend the two mandatory meetings, except for good cause, shall preclude further action on the complaint until the expiration of six months from the date of the return date of the complaint; provided, the court may order the termination of such stay, upon a Motion of either party for good cause shown.

Can We Attend More Than The Two Mandatory Meetings?

Yes. Further consultations may be held if both parties consent, or if the conciliator recommends additional consultations and either one of the parties agrees, the court may order additional consultations.

Are Conciliation Sessions Privileged?

Yes. All communications during these sessions are absolutely privileged, except the conciliator shall report to the court whether or not the parties attended the consultations.

Can A Divorce Action Be Withdrawn?

Yes. A Connecticut divorce action may be unilaterally withdrawn by the plaintiff, however, if a cross-complaint has been filed by the defendant, the divorce can proceed on the defendant’s cross-complaint.

At Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, we understand that going through a divorce can be a difficult process. We regularly work with and refer parties to therapists and mental health professionals in order to assist one or both parties with issues they may face during the proceedings. In the event, the divorce action does proceed, our skilled attorneys will be there to guide you through the process from start to finish.

How Are 401(k), IRA & Pension Assets Divided In A Connecticut Divorce?

Unless there is a prenuptial or postnuptial or divorce agreement that provides otherwise, retirement accounts will be allocated between the spouses in a divorce. Even if a retirement account is titled in the name of one spouse, or is an employer-sponsored plan, there are still ways to either divide the plan between the parties or to use other assets to offset it in equitable distribution.

Determine What Type Of Retirement Account Do You Have.

Retirement plans are either qualified or non-qualified. The most common types of qualified retirement accounts are 401(k)s, 403(b)s, SEP-IRAs, profit-sharing plans, and certain pension plans. A qualified retirement plan is one that meets guidelines issued by the Employee Retirement Income Security Act (ERISA) regarding participation, vesting, benefit accrual, and fund information. When a retirement plan meets ERISA guidelines, it is considered a “qualified” plan and is eligible for certain tax benefits.

Non-qualified retirement plans include certain IRAs, deferred compensation plans, executive bonus plans, and annuities.

When you are getting divorced, it is important to know whether a retirement account is a qualified plan or a non-qualified plan in order to determine whether it is divisible via a Qualified Domestic Relations Order. If your plan documents do not specifically state whether the account is qualified, you will have to check with the plan administrator.

What Is A Qualified Domestic Relations Order (QDRO)?

A Qualified Domestic Relations Order (QDRO) is a Court Order that instructs a retirement plan administrator how to divide a retirement account between parties. If a retirement account is a qualified plan and can be divided by QDRO, the retirement account is capable of being separated between the parties without penalty. This is preferable because the non-employee spouse’s share can be deposited into a separate account, allowing for each party to manage his or her portion of the retirement funds individually.

Most divorce decrees will set forth the specific division of the retirement account that is agreed upon by the parties (or ordered by a Judge after a divorce trial), and provide for the parties to jointly hire an individual whose expertise is in the drafting of QDROs to prepare the QDRO and submit it to the Court for approval. Once approved by the Judge, the QDRO will be sent to the retirement plan administrator to effectuate the division of the account.

How Do We Divide A 401(k)?

As a qualified plan, a 401(k) is capable of being divided between spouses by QDRO. Accordingly, you and your spouse can either agree to divide the account by percentage or by dollar amount.

How Do We Divide An IRA?

IRAs can typically be divided using a process known as a “transfer incident to divorce.” Also called an IRA “rollover,” this process does not require a separate court order and can be accomplished by the parties themselves without the need to hire a specialized lawyer. Like a QDRO, an IRA rollover transaction is not subject to taxes. Instead, each party is responsible for payment of taxes and any penalty on the distributions from the retirement account after the funds are divided between them. As with a 401(k), the account can be divided by percentage or amount.

How Do We Divide A Pension?

When you have a non-qualified pension or other deferred compensation that is not divisible by QDRO or rollover, you will need to be more creative in allocating the asset between the parties. Typically, this means negotiating a buy-out of one party’s equitable interest or a sharing of the distributions if, as, and when the employee spouse receives them.

The attorneys at Broder Orland Murray & DeMattie LLC are experienced with the intricacies of dividing all types of retirement accounts and can help you take the appropriate legal steps to protect your rights to retirement accounts in your divorce.