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When Cheating Counts in a Connecticut Divorce

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This week’s blog by Westport divorce lawyer Jaime S. Dursht

WHEN CHEATING COUNTS IN A CONNECTICUT DIVORCE

There is a widely held perception that because Connecticut is a no-fault divorce State, that cheating or adultery or whatever term is used to describe marital infidelity, does not affect the outcome.  That is only partially true.  No-fault divorce means that a party is not required to allege and prove wrongful conduct, e.g., adultery, in order to obtain a divorce.  It does not mean, however, that it will not be considered by a court in its determination of how the marital estate is to be divided or the extent of an alimony obligation because it is a relevant factor to both of these if it caused the breakdown of the marriage, and depending on the degree of infidelity, could very well impact the final outcome.

Will My Spouse Allege Infidelity as Grounds for a Connecticut Divorce?

Connecticut Family Law statutes provide:  “A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: … (3) adultery; … ” and further provides: “For the purposes of this section, “adultery” means voluntary sexual intercourse between a married person and a person other than such person’s spouse.” C.G.S. 46b-40.  While adultery remains on the books as a cause of action for divorce, the more commonly claimed ground is that of irretrievable breakdown of the marriage which serves to establish the jurisdiction of the court without unnecessary scandal or embarrassment that might otherwise result at the commencement of the action.  However, alleging irretrievable breakdown as grounds for divorce does not prevent or preclude the subsequent consideration of infidelity by the court for other purposes such as asset division and alimony.

Will Infidelity Affect How Marital Assets are Divided in a Connecticut Divorce?

Possibly, yes.  It depends on how egregious, how flagrant, how inappropriate or how persistent the conduct was and the degree to which it caused the breakdown of the marriage.  Here are just a few examples in a nutshell:

Where a husband’s repeated infidelity, alcohol use, lack of communication and dictatorial personality caused the breakdown of the marriage, it was not an abuse of the court’s discretion to award the wife 67% of the marital assets.  Greco v. Greco, 70 Conn.App. 735 (2002).

Where a husband’s extramarital conduct was so flagrant, so inappropriate and so frequent that it resulted in the breakdown of the marriage, the court awarded 70% of most of the assets to the wife.  The husband had fathered a child out of wedlock and spent considerable family resources on the paramour and child.  Thomson v. Thomson, Superior Court of Connecticut, judicial district of Stamford-Norwalk, docket no. FA1304024747S, August 4, 2015 (Shay, J.).

Where a husband was found to be a playboy who fathered another woman’s child during the marriage, the court awarded 70% of the marital estate to the wife.  Blint v. Blint, Superior Court of Connecticut, judicial district of Hartford, docket no. FA000723514S, March 8, 2002 (Brennan, J.).

The cause of the breakdown of the marriage is just one of many statutory factors the court considers when dividing the marital estate and its conclusion is based on the comparative fault of the parties.  The examples above are extreme but nevertheless illustrate how courts have handled egregious infidelity during a marriage.

Will Infidelity Affect the Award of Alimony in a Connecticut Divorce?

The statutory factors that a court will consider in the division of marital assets are very similar  to those considered in making an award of alimony, and include  the cause of the breakdown of the marriage  as a relevant factor to the determination of alimony.  The difference, however, is that the purpose of alimony is for a spouse to meet an ongoing duty to support the other spouse as a result of the marriage.  While a court is not obligated to articulate the weight it gives each statutory factor, other factors tend to be more relevant to the determination such as one’s age, health, employability, occupation, station and sources of income.

Will Infidelity be Publicized during a Connecticut Divorce?

Generally, no.  Although trials are public in the sense that the courthouse doors are open to the general public, it is rare that divorce trials are attended by anyone other than the parties involved and possibly other litigants attending court for their own matters.  After the conclusion of trial there will be a Memorandum of Decision issued which is a public document in that it is published and made available through online legal research providers, but unless there are celebrities involved the decisions are not otherwise publicized.

Most divorces are privately negotiated and resolved without a trial, however, it is important to keep in mind that the successful negotiation, mediation or other type of dispute resolution will rely on data derived from trial outcomes.  Infidelity as well as other types of misconduct during a marriage are not only relevant but often influence the dynamic of a negotiation and may affect bargaining positions. Therefore, it is critical to have legal counsel with substantive knowledge of the relevant issues but just as critical to have counsel experienced in litigation should it become necessary.

Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, concentrates in family law and divorce.  Our attorneys are extremely knowledgeable with the issues of how and to what degree various factors of fault may impact marital asset division and alimony, and are experienced courtroom advocates in advancing and defending claims of fault.

  

CONFIDENTIALITY AGREEMENTS AND THE DISCLOSURE OF SENSITIVE BUSINESS RECORDS IN A DIVORCE

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While divorce can be a difficult and stressful process under normal circumstances, it can be especially stressful and complicated for business owners, or for anyone who holds an ownership interest in a business.    Many business owners (or business interest owners) want, or are otherwise required by company policy, to keep certain records and information regarding their business confidential. However, in Connecticut, a business interest constitutes an asset that is subject to equitable distribution between divorcing parties and, as result, where a business interest is at stake in a divorce, a professional appraisal of that interest by a business valuation expert is often necessary. What happens when your spouse asks you to produce confidential or sensitive business records?

Are Confidential or Sensitive Business Records Discoverable in a Divorce?

Generally speaking, yes. In a divorce, each party has the right to seek full and complete disclosure of any and all pertinent financial records from his or her spouse. Accordingly, if you own a business or own an interest in a business, your spouse will be entitled to seek information relating to your business interest (even sensitive or otherwise confidential information ) which is relevant to any financial issues in your divorce including, for example, the value of your business interest or the amount of income that you derive from a business. While you will always maintain a right to object to any specific requests for information (on any number of available bases), at the end of the day you may be required by a judge to produce sensitive information that you or your business would otherwise wish to keep confidential.

How Can I Limit Exposure of Confidential Business Information?

A common way to limit the exposure of any sensitive and/or confidential business information that you are required to disclose to your spouse in a divorce is to execute a Confidentiality Agreement, also referred to as a Non-Disclosure Agreement.

What is a Confidentiality Agreement?

A Confidentiality Agreement is a legal contract between parties establishing a confidential relationship between a person or company who is required to disclose sensitive information, and the person(s) to whom such information will be disclosed. In the context of a divorce, a Confidentiality Agreement typically precludes the non-disclosing spouse (i.e., the spouse who has requested and is receiving the confidential information) from disseminating the confidential information he or she receives pursuant to the Agreement to any third parties, typically with the exception of his or her attorney or any relevant experts that he or she has retained. Depending on the nature of the business and/or the information at issue, the disclosing party may also ask a court to seal the court record to prevent any information offered into evidence at a judicial proceeding from becoming public.

What Should be Included in a Confidentiality Agreement?

While Confidentiality Agreements should not be approached with a “one size fits all,” mentality, any such Agreement should, at a minimum: (1) define with specificity the type of information that will be protected by the Agreement; (2) delineate clearly the person(s) or institution(s) to whom any confidential information disclosed pursuant to the Agreement may be disseminated; (3) set forth with specificity the purposes for which confidential information may be utilized; (4) set forth with specificity what measures any parties to whom confidential information is disseminated must take to ensure that confidentiality is maintained (including rules about how confidential materials must be stored and/or maintained and how and when they must be destroyed); and (5) setting forth remedies that the disclosing party may seek against the non-disclosing party if the Confidentiality Agreement is breached.

At Broder Orland Murray & DeMattie LLC, we are extremely experienced and adept at drafting and negotiating Confidentiality Agreements in order to help our clients protect against the dissemination of confidential or otherwise sensitive business information.

How are Retirement Accounts Divided in a Connecticut Divorce?

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Retirement accounts are considered marital assets in Connecticut, and unless there is a prenuptial or postnuptial agreement that provides otherwise, retirement accounts will be allocated between the parties as a part of a divorce. Even if a retirement account is titled in the name of one spouse, or is an employer-sponsored plan, it may still be divided between the parties. Whether a retirement account is actually divided, or allocated in some other way, depends on the type of account. Here are the questions that need to be answered in order to determine how retirement accounts can be divided in your divorce:

Is it a Qualified Plan?

Most, but not all, retirement plans are “qualified” plans. The Employee Retirement Income Security Act (ERISA) provides guidelines regarding retirement accounts, 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. The most common types of qualified retirement accounts are 401(k)s, 403(b)s, SEP-IRAs, profit sharing plans, and certain pension plans.

When you are getting divorced, it is important to know whether a retirement account is a qualified plan because if it is, the account can be divided via a Qualified Domestic Relations Order.

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.

What if the Retirement Account Cannot be Divided by a QDRO?

Certain retirement accounts, such as IRAs, cannot be transferred by QDRO. However, IRAs can typically be divided in a much easier manner- 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 special lawyer. Like a QDRO, an IRA rollover transaction is not subject to taxes. Instead, each party is responsible for payment of taxes on the distributions from the retirement account after the funds are divided between them.

What Happens if we Have Non-Qualified Retirement Accounts?

If you have non-qualified retirement accounts, such as certain deferred compensation plans, executive bonus plans, or annuities, the accounts are typically not capable of being divided between the parties. In order to allocate the asset between the parties, a buy-out or a sharing of the distributions if, as, and when the employee spouse receives them may be the best option.

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.

The Connecticut Divorce: What is Family Relations?

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This Week’s Blog by Christopher J. DeMattie

  • Family Relations offers a wide variety of services to help resolve parenting, custody, and financial disputes in divorce and post-judgment actions.
  • Depending on the service recommended, you can expect to meet with a Family Relations Counselor for an hour or for an extended period of time over the course of many months.

What is Family Relations Relative to a Connecticut Divorce?

Family Relations or family services is a free service offered by the Judicial Branch to assist the Court and individuals in resolving parenting, custodial, alimony, child support, and property issues.  The Family Relations Counselor assigned to your matter is typically a trained social worker or attorney.

What Services Does Family Relations Offer in a Connecticut Divorce?

Pursuant to Court Form JD-FM211 below is a list and brief explanation of the specific services:

  1. What type of alternative dispute resolution services?
  • Pre-trial Settlement Negotiations – In all Judicial Districts, Family Relations Counselors conduct pre-trial and final judgment settlement conferences with attorneys and parents in conjunction with their attendance at Family Short Calendar and other Family Civil Court dockets.
  • Mediation – Family Relations Counselors mediate custody and access disputes for up to three 2-hour sessions. These efforts are geared toward assisting parents in resolving differences in a self-determining, non-coercive, and confidential manner.
  • Conflict Resolution Conference – This is a confidential, directive process utilizing negotiation and mediation techniques to resolve the primary issues of custody and access. Parents and attorneys participate in the conferences and information from professional sources may be included. The Family Relations Counselor may offer recommendations to the parents at the conclusion of the process if the parties are unable to resolve their dispute. These recommendations are not provided to the Court.
  1. What type of Case Management Services?
  • General Case Management – A Family Relations Counselor will be assigned distinct responsibilities to assist parties in resolving their parenting issues with a report back to the Court. Some components include gathering specific information regarding the family, monitoring compliance with court orders, facilitating settlement conferences to develop parenting plans, conducting home visits, or completing other court-ordered tasks.
  • Intensive Case Management – This service offers parents in the early stages of post judgment court involvement the opportunity to enhance collaboration between the parents and formulate mutual decisions regarding the well-being/care of their children. The role of the Family Relations Counselor is to work with the parents as needed to reduce conflict, offer skills for enhanced communication, reinforce positive parenting, and report progress to the Court.
  1. What type of evaluative services?
  • Issue-Focused Evaluation – This is a non-confidential process of assessing a limited issue impacting a family and/or parenting plan. The goal of an Issue-Focused Evaluation is to explore the defined parenting dispute, gather information regarding only this issue and provide a recommendation to the parents and the Court. This evaluation format is limited in scope, involvement, and duration.
  • Comprehensive Evaluation – This is an in-depth, non-confidential assessment of the family system by the Family Relations Counselor. The information gathered by the counselor, the assessment of the family, and the resulting recommended parenting plan is shared with the parents and attorneys. This recommendation may be used to form the basis of an agreement. At the conclusion of the process, a report with recommendations is filed with the Court.
  1. What type of education services?
  • Parent Education Program (PEP) – Family Services contracts with community and private agencies throughout the state to provide this program. The PEP is a six-hour statutorily mandated, psycho-educational course for separating and divorcing parents that provides information about the impact of family restructuring on children.

What Can I Expect at my Family Relations Meeting in a Connecticut Divorce?

Typically, there are two ways to end up in Family Relations.  First, prior to having an evidentiary hearing on a Motion, you and/or your lawyer must first meet with Family Relations to try and settle the issues.  Your lawyer will present an argument and provide basic backup documents, if requested, and the Family Relations Counselor will try and mediate a resolution and/or provide recommendations.  This meeting could feel rushed as it typically lasts only between 20 and 40 minutes.

Second, if you and your spouse have disputes relative to custody or parenting time, your matter will most likely be referred to Family Relations for an intake screen.   At the intake the Family Relations Counselor will ask you a series of questions to identify the level of conflict and complexity of issues. The screening includes questions about: (a) current court orders, (b) past and present parenting concerns including substance abuse and family violence, and (c) the level of conflict.  This screen helps Family Relations determine if mediation, conflict resolution conference, issue focused evaluation, or a comprehensive evaluation is the appropriate service to help resolve the conflict(s).  Once the appropriate service is determined, an appointment will be scheduled (it may be a joint meeting or an individual meeting) and you will be asked to discuss your concerns about the children and answer concerns that the other parent may raise.  Depending on the service, you may be asked to sign release and/or consent forms to permit the Family Relations Counselor to communicate with doctors, therapists, teachers, and other relevant individuals.  Additionally, the Family Relations Counselor may conduct a visit with you and your children at your home.

Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  We have significant experience with Family Relations and understand the nuances of the process.  Our experience enables us to effectively guide our clients through the process by educating them on what to expect and to prepare them in presenting their concerns and issues in an organized and cogent fashion.

Inheritances, and the marital estate, are your inheritances subject to equitable distribution?

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Many clients come into our office from the towns of Fairfield County with family money they inherited during the marriage, or which they anticipate inheriting after a dissolution proceeding.  Sometimes clients want to know whether the inheritance they have already received or anticipate receiving, will be considered part of the marital estate subject to equitable distribution at the time of dissolution.

At the time of entering into a judgment or dissolving a marriage, any inheritance already received is considered a part of the marital asset, subject to equitable distribution pursuant to C.G.S.A. § 46b-81(a)-(c). The recipient spouse does not have a de-facto right to 100% of the value of these funds.  In determining how these funds shall be divided, the Court will consider all of the factors enumerated in the statute, including but not limited to the contribution each party made to the acquisition, preservation or appreciation in value of the inheritance, how the funds are held, whether commingled or separate, when they were acquired during the marriage, and the age, station, occupation, income, health, and estate of the parties. The Connecticut Courts examine all of these factors on a case by case basis to determine what constitutes an equitable distribution of the marital estate, including either spouse’s inherited assets.

Dividing inherited assets is not always a straightforward process. Great care must be taken in order to identify the specific nature of the inherited assets. For example, if a spouse received an inheritance in the amount of $1,000,000 during a twenty year marriage and the total value of the marital estate at the time of divorce is $1,500,000, the Court might equally divide the entire marital estate, including the inheritance.  By contrast, if it was a five year marriage, and one spouse had inherited $200,000, and the total marital estate was worth $5,000,000, the Court may allocate the receiving spouse with a credit of $200,000, especially if the funds were kept separately.  Courts will not only look at the inheritance received, but as previously noted, they will also consider any appreciation in value of the inheritance.  Additionally, the Courts will examine which spouse was responsible for the appreciation in value. For example, there may be circumstances where a spouse received a $100,000 inheritance and the other spouse actively invested the inherited funds.  If as a result of the non-inheriting spouse’s sole efforts the value of the inheritance increased significantly, the Court may take this into consideration.  The Court might also examine how the funds were being held, and whether the inheritance was kept as one spouse’s separate and distinct property and/or whether all or a portion of the funds had been commingled with the investing spouse’s funds.  If the funds were commingled into a joint account, a court may be more likely to equally divide the inheritance, including any appreciation in value.  What the Court finds equitable depends in part on myriad of factors, including the size of the marital estate, each party’s contribution to the preservation and/or appreciation in value of the inheritance, and how the funds have been held.

The important thing to understand is that unlike many other states, Connecticut does not treat an inheritance as the recipient’s separate property shielded from distribution to the non-inheriting spouse. The inheritance is subject to equitable distribution.  At Broder Orland Murray & DeMattie, LLC we understand the complexities associated with inheritances, and we frequently advise clients as to the myriad of factors a court takes into consideration when examining and distributing the marital estate.

 

 

 

Does Connecticut Recognize “Separate Property?”

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One of the most common inquiries that we receive from potential clients in Greenwich, Westport and other towns throughout Fairfield County, is whether or not, upon divorce, their spouse will be entitled to share in certain assets that he or she may perceive to be their “separate property.”  A common example would be where the individual has brought substantial assets with them into the marriage and hopes to solely retain these assets upon their divorce.  Additional examples might be where the inquiring potential client has received an inheritance or a gift during the marriage and wants to know if his or her spouse will have any right to share in a portion of such assets upon divorce.  Depending upon which side of the coin the potential client falls on, the answer to his or her inquiry may be heartening or discouraging.

Unlike many other equitable distribution states, Connecticut does not recognize any assets as  the “separate property” of either spouse, meaning assets that would be  exempt from equitable distribution in a divorce.   Rather, Connecticut is an “All Property” state, which means that any asset owned by either party to a divorce is subject to division in a divorce, regardless of how or when the asset was acquired.

That said, it is important to understand that under our “equitable distribution” law, assets are not automatically divided equally between divorcing spouses, as many people incorrectly assume.  Instead, courts have the discretion to distribute assets between divorcing spouses in any manner that the Court deems to be fair and equitable, and in determining fairness, court’s will consider a variety of factors including factors such as “how” and “when” a particular asset may have been acquired.  The full list of factors that courts may consider in determining an equitable division of property in a divorce is as follows:

  1. The length of the parties’ marriage;
  2. The causes for the annulment, dissolution of the marriage or legal separation;
  3. Age of each of the parties;
  4. Health of each of the parties;
  5. Station of each of the parties;
  6. Occupation of each of the parties;
  7. Amount and sources of income for each of the parties;
  8. Earning capacity of each of the parties;
  9. Vocational skills of each of the parties;
  10. Education of each of the parties;
  11. Employability of each of the parties;
  12. Estate of each of the parties;
  13. Liabilities and needs of each of the parties;
  14. The opportunity of each party for future acquisition of capital assets and income; and
  15. The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

Accordingly, as a practical matter, Connecticut divorce Courts will sometimes award one spouse a greater portion, or in some cases the entirety of assets that the party brought into the marriage, or received during the marriage by way of gift or inheritance.

At Broder Orland Murray & DeMattie LLC, we are well-versed in all issues relating to property division and are extremely adept at crafting and presenting the strongest possible arguments on behalf of our clients to achieve favorable property divisions, whether through settlement or at trial.

 

 

 

The Discovery Process

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Have you ever wondered how exactly your spouse is paid, or what his or her sole credit card or bank statements would show if you had the chance to view them? The discovery process in a dissolution proceeding has the ability to bring light to many of these common questions. The discovery process begins shortly after the return date has occurred and generally involves gathering documents and information. Discovery in family law cases can take many forms depending on the complexity of the case and the type of case. A majority of divorcing families in Greenwich, Stamford, Darien, New Canaan, and Westport have a number of assets and liabilities. By engaging in the discovery process, each party can be provided with full transparency regarding the assets and liabilities that make up the marital estate.

Practicing family law attorneys often begin the discovery phase with what is known as a “Request for Production.” This request is sent to the opposing party or his or her counsel and requests particular documents, statements, photos or general information from the other party for a given period of time (generally up to three years from the date the request is filed). Some of the most common documents requested in a Request for Production are paystubs, employment contracts, tax returns, credit card statements, checking and savings statements, statements regarding retirement accounts and documents regarding real estate owned by a party.

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EXCLUSIVE OCCUPANCY

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In many divorce cases, one party voluntarily moves out of the marital home, leaving the other party with exclusive use and occupancy of the premises. The much more likely scenario, however, is that both parties refuse to voluntarily vacate the marital home, often due to their desire to remain with the children and/or a lack of financial resources to maintain two residences. In such situations, often one party will file a Motion for Exclusive Possession asking the court to order the other party to vacate the premises.

As top divorce attorneys in Greenwich, Westport, Stamford, Darien, or New Canaan will tell you, the party moving for exclusive possession is required to indicate the grounds upon which he or she is seeking such a remedy. While no specific grounds have been established for granting exclusive possession of the marital home, there are some factors that the courts have considered more than others.

One factor that the courts have considered when deciding on a motion for exclusive possession is the nature of the relationship between the parties. For example, the mere fact that the parties dislike each other is typically not sufficient to justify exclusive possession of the marital home. However, the courts may be inclined to order exclusive possession of the marital home where the conditions indicate the existence of physical or psychological abuse between the parties, particularly in the presence of minor children.

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