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Imputing Income for Child Support Purposes

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How is Child Support Generally Determined in Connecticut?

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. Pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula which yields a presumptively correct weekly child support obligation that one parent must pay to the other.

What Does Voluntary “Underemployment” Mean?

Voluntary underemployment occurs when a parent (whether it be the child support obligor or the parent receiving child support) voluntarily earns less income then he or she is capable of earning based upon his or her education, training and past earnings.  Consider, for example, a scenario in which a child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue to pursue a far less lucrative career as a musician; this would be an example of “voluntary underemployment.”

Do Courts Have Any Means to Redress Voluntary Underemployment in Issuing Child Support Awards?

Yes.  In such circumstances, courts have the discretion to attribute or “impute” income to a parent (whether it be the parent paying child support, the parent receiving child support, or both) for purposes of determining child support obligations.  In other words, when plugging a parent’s income into the mathematical child support formula set forth in the Connecticut Child Support Guidelines, courts may utilize an income figure that reflects the amount of income that a parent could potentially be earning (commonly referred to as “earning capacity”), rather than the amount the parent is actually earning at the time.

How do Courts Determine what Amount of Income to Impute to a Party?

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.

Are Experts Ever Used to Determine Earning Capacity?

Yes.  In cases where earning capacity is an issue, it is common 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 Murray & DeMattie LLC, we have extensive experience handling matters where earning capacity is at issue and have a well-established track record of achieving favorable results for our clients in such matters.

Can You Enforce A Foreign Divorce Judgment in Connecticut?

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  • Divorce Attorneys in Connecticut may be asked to enforce a “foreign divorce.” In Connecticut, the term “foreign divorce” means a divorce that took place in another state or country.
  • If you move to Connecticut after getting divorced in another state, you can enforce the judgment in Connecticut so long as the issuing state had jurisdiction to enter the judgment, both parties filed appearances in the divorce action, and the judgment is final.
  • If you move to Connecticut after getting divorced in another country, Connecticut will still enforce the judgment as long as it is not contrary to public policy or the morals of this state.
  • Before you can enforce your foreign divorce, you must first follow Connecticut procedure to file the foreign judgment with the court.

Connecticut Will Give Full Faith and Credit to Out-of-State Judgments

“Full faith and credit” means that Connecticut must give an out-of-state judgment the same force and effect to which the order is entitled to in the issuing state. However, before full faith and credit is given, Connecticut has threshold requirements which must be met. First, Connecticut requires the issuing state to have had jurisdiction to grant the divorce. Proper jurisdiction means that at least one of the parties to the divorce action was domiciled in the state at the time of the order (even if domicile might not have been required in that state). Second, in order to enforce alimony and support orders, the Connecticut court requires both parties to have filed appearances in the out-of-state proceeding. This ensures that both parties were aware of the orders rendered by the foreign state. Third, the orders must be final orders, and not temporary in nature. For example, a judgment that is pending appeal in one state cannot be enforced in Connecticut until it is adjudicated.

Divorce Judgments from Other Countries May be Enforceable in Connecticut

A divorce decree rendered in another country is not given, per se, full faith and credit in Connecticut. However, the Connecticut court will generally recognize and enforce a divorce judgment from another country if it is not contrary to the public policy or morals of the state of Connecticut. For example, if the jurisdictional requirements of the foreign country were met, but those requirements are contrary to the public policy of Connecticut, the court in Connecticut may decline to recognize and enforce the judgment.

You Must File the Foreign Judgment in Connecticut Before You Can Enforce It

In order to enforce a foreign judgment, you must first follow a specific procedure to file the foreign judgment with the Connecticut courthouse in which you are seeking enforcement. For example, if you live in Darien or Greenwich, you would seek enforcement in the Stamford Superior Court. According to Connecticut General Statutes §46b-71, you must:

  1. File a certified copy of the foreign judgment.
  2. Submit a certification stating that the judgment is final and has not been modified, altered, amended, set aside, vacated, stayed, or suspended. The certification must also include the full name and last known address of the other party.
  3. If the judgment has been modified, altered, or amended, submit an affidavit describing the modification or amendment, as well as certified copies of the modification or amendment. The Connecticut court will ultimately enforce the judgment as modified, altered, or amended.
  4. Notify the other party of the filing, by certified mail or personal service, within five days, and provide proof of service to the court.

You will not be able to take any action to enforce the judgment for a period of twenty days, to allow the other party the opportunity to advise the court of additional terms or modifications of the judgment. Once the twenty days has expired, the matter will be assigned a docket number and you may proceed in attempting enforcement or modification of the order.

If you or your ex-spouse live in Connecticut and you need to enforce a foreign judgment, it is important to hire experienced counsel to guide you through the process. The team of attorneys at Broder Orland Murray & DeMattie LLC can help you assess your case, file your judgment, and litigate the enforcement as necessary.

 

Imputing Income for Child Support Purposes

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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 Murray & DeMattie 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.

Unallocated Alimony and Child Support

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Any parent contemplating divorce understandably wishes to know whether and to what extent he or she will be entitled to receive, or obligated to pay, child support and/or alimony.  However, many potential clients we speak to are unfamiliar with a third type of support — commonly referred to as “unallocated alimony and child support” — which in certain circumstances can be a useful (and sometimes critical) tool for resolving support issues in a divorce through negotiated settlements.  In simple terms, an unallocated support payment from one ex-spouse to another is an obligation that contains both alimony and child support components lumped together into a single payment.

In order to understand the potential benefits to both parties of an unallocated support obligation, it is first necessary to understand the different tax treatments that apply to child support payments and alimony payments.  In a nutshell, child support payments are neither tax deductible to the person making the payments, nor taxable as income to the person receiving the payments.  Alimony payments, in contrast, are taxable, meaning that such payments are tax deductible to the payor and taxable as income to the person who is receiving the payments.

When parties agree upon an unallocated support obligation, they are agreeing, for purposes of settlement, to lump child support and alimony together into a single payment, the entirety of which will be treated like alimony for tax purposes (i.e., tax deductible to the payor and taxable as income to the payee).

The fact that the payor receives favorable tax treatment on unallocated support payments while the payee receives unfavorable tax treatment on such payments begs the following question: why would the payee spouse agree to this arrangement?  The answer is that, under certain circumstances, it can benefit both parties to combine child support and alimony into a single unallocated taxable support payment.  This is typically the case where the spouse paying alimony and child support has a substantial income and the spouse receiving alimony and child support has little or no income of their own. The reason that unallocated support may be beneficial to both parties is that it allows the parties to shift income from higher tax brackets to lower tax brackets. As a result, the payor will ultimately end up keeping more of his or her income because of the ability to use the entire unallocated support payment as a tax deduction and will thereby have more disposable income available with which to pay support. Stated differently, due to the tax savings, the individual paying support may end up with more money than he or she otherwise would have if alimony and child support payments were made separately and, as a result, the receiving spouse (and children) can benefit from an increased payment amount than if they had received alimony and child support separately.  In this scenario, the entire family wins and the IRS suffers the loss.

In considering the use of an unallocated support award, it is critical to ensure that the support payment is set in such a manner so as to be an incentive to both the payor and the recipient. Generally speaking, an unallocated support award will not be advantageous for former spouses who earn similar incomes.

At Broder Orland Murray & DeMattie LLC, we regularly represent clients in Greenwich, Darien and other towns throughout Fairfield County and the state of Connecticut for whom unallocated support payments are advantageous, and we are well-versed in the complexities of such awards and how to use them as a settlement tool to maximize your post-divorce financial well-being.

What happens at an Uncontested Divorce Hearing in Connecticut?

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When the parties reach a settlement agreement in a Connecticut divorce case, they are required (except in a few rare limited circumstances) to appear in the appropriate courthouse for an Uncontested Divorce Hearing. The specific courthouse depends on where the case is filed. For example, if you live in Greenwich or Darien you will be in the Stamford Superior Courthouse. If you live in Fairfield or Trumbull your case will be in the Bridgeport Superior Courthouse.

On the day of an Uncontested Divorce, you are required to have a number of documents signed and filed with the clerk. Specifically, you will need the following: the signed divorce agreement, Financial Affidavits from both parties, and if you have children, an Affidavit Concerning Children and the Child Support Guidelines worksheet. There may be also other documents required, subject to the specific settlement terms of your case.

Upon entering the courthouse on the date of your divorce you will be assigned to appear before a specific judge. The judge, or your attorneys, will ask you a series of questions with regard to your divorce agreement to ensure that you understand the terms and consequences and that you have not been forced to enter into the agreement.

Below is a list of questions that you are generally required to answer while under oath:

  1. Have you had the opportunity to review the final Separation Agreement in this matter?
  2. Have you had the opportunity to ask any and all questions of your counsel regarding this case and the Agreement?
  3. Are you fully satisfied with all of the advice given to you by your counsel regarding this dissolution of marriage action and the Agreement?
  4. Do you understand all of the Agreement’s terms and conditions?
  5. Do you understand that you are waiving your right to alimony that means you cannot come back to any court at any other time to seek alimony from the other party? (In cases where a Party is waiving alimony.)
  6. Has anyone tried to persuade you or force you to enter into this Agreement?
  7. Do you understand that if you were to have a fully contested trial in this case it is possible that you would receive a more advantageous result or a more detrimental result?
  8. Under all the circumstances, do you feel this agreement is fair and equitable?
  9. Are you satisfied with your counsel’s representation in this matter?
  10. Did anyone force to you enter into the Agreement?
  11. How is your health?

In addition to the above, your lawyer, or the judge, may run through the salient points of the agreement with you so that the court is fully apprised of the specific terms and conditions. In the event there is something rather unique or complicated in your agreement, the court wants to be sure you understand the issue.

Generally speaking, the actual process takes fifteen (15) minutes or less. Of course, there are other cases on the court’s calendar that day so we often tell clients to be sure to block out the morning or afternoon, as the case may be, because you never know whether you will be called first or last.

What does “Custody” Mean in a Connecticut Divorce Case?

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The “custody” word sometimes sends shivers down the spine of divorce litigants. However, this term is often misunderstood and can unnecessarily result in a high conflict divorce. Divorce lawyers in Greenwich and Westport often are asked: “What does ‘custody’ mean?” First, in the context of divorce, there are two parts to custody: legal and physical.

Legal custody refers to decision making with regard to your child’s health, education and religion. Most couples, even those who are divorcing, want the best medical care and education for their children and are on the same page as to what that is. Religion is rarely a factor at the time of divorce as it typically has long since been settled. That is why almost all cases result in joint legal custody.

In certain cases, parties may have joint legal custody but one parent may have final decision making on the major issues. But even this is usually invoked after both parents consult with each other or try to arrive at a mutual decision that is in the best interest of their child. Sometimes the parties employ a parenting coordinator to assist with the decision making process, since relying on a Court to insert itself into the controversy is usually not efficient or productive.

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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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Can I get divorced in Connecticut?

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Our office frequently receives inquiries from potential clients who, because of their particular set of circumstances, are uncertain as to whether Connecticut is the appropriate jurisdiction to handle their divorce from a spouse. Sometimes the person lives in a different state and is physically separated from a spouse who continues to reside, or now resides, in Connecticut. In other situations, the spouses in question were married in Connecticut but have never resided in this state or, alternatively, were married in another state (or perhaps even abroad) and moved to Connecticut only recently. Another common scenario that leads to jurisdictional questions from clients is where parties maintain multiple residences. For example, many of our Fairfield County based clients maintain second residences in Manhattan and we also meet or speak with many clients who live out of state but maintain second homes in towns like Greenwich or Westport.

Just like all states, Connecticut has its own set of laws (commonly referred to as “residency requirements”) which dictate whether a Connecticut court will have jurisdiction over a divorce. Connecticut’s divorce residency requirements authorize courts here to grant a divorce if any one of the three (3) criteria discussed below are met.

1. Twelve (12) Month Continuous Residence Requirement

Subsection (c)(1) of C.G.S.A § 46b-44 provides that a decree dissolving a marriage (or granting a legal separation) may be entered by a Connecticut court if one of the parties to the marriage has been a resident of Connecticut for at least twelve months next preceding the date of the filing of the Complaint or the date of the decree.

There are several important points to keep in mind in considering the scope and the limitations of this residency provision. First, there is the question of what constitutes “residency” in this state. Courts have interpreted the term “residence” to require that a party be “domiciled” in Connecticut in order to be considered a resident of the state. To be “domiciled” within the state requires maintenance of an actual residence in Connecticut, coupled with the intention of permanently remaining (as opposed to an intention to use the actual residence in quest for a temporary or special purpose). Notably, the issue of whether a party is domiciled in Connecticut for purposes of divorce jurisdiction, if and when it arises, is an issue of fact that a Court must determine, and not one for which there is a bright-line rule to be applied.

A second element of the “12-month residency requirement” portion of C.G.S.A § 46b-44(c) which is important to understand is that the statute only requires that one party meet the residency requirement and does not limit the court’s jurisdiction to cases where the plaintiff meets that requirement. Accordingly, a divorce action may be brought in Connecticut by a person who lives in a different state, so long as the defendant-spouse satisfies the residency requirement.

Finally, it is worth highlighting that although C.G.S.A § 46b-44(c)(1) requires that either party has met the 12-month residency requirement before a final judgment can be entered, the statute does not require that either party has resided in Connecticut for the preceding 12 months in order to file for divorce. Accordingly, as long as either spouse is currently domiciled in Connecticut, either spouse may legally commence an action for divorce against the other in Connecticut even if the Court’s authority to actually grant a divorce has not yet been triggered. This provision allows Connecticut courts to grant important temporarily relief — such as temporary child support or alimony — to litigants who may be domiciled in Connecticut, but have not yet been domiciled here for twelve months.

2. Jurisdiction Based upon Domicile at Time of Marriage

Subsection (c)(2) of C.G.S.A § 46b-44 provides that a decree dissolving a marriage or granting a legal separation may be entered if one of the parties was domiciled in Connecticut at the time of the marriage and returned to this state with the intention of permanently remaining before filing the Complaint. Notably, this provision requires a party to have been domiciled in Connecticut at the time of the actual marriage (regardless of whether the marriage occurred in Connecticut) and it is not sufficient that her or she resided in or traveled to Connecticut at some earlier time.

3. Jurisdiction Based upon Cause of Dissolution Arising in Connecticut

Finally, subsection (c)(3) of C.G.S.A § 46b-44 provides that a decree dissolving a marriage or granting a legal separation may be entered if the cause for the dissolution of the marriage arose after either party moved into the state.

At Broder Orland Murray & DeMattie LLC, we are well-versed in jurisdictional issues that relate to divorce and can help clients navigate through the requirements.

WHY PARTIES NEED REVIEW COUNSEL DURING MEDIATION

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Mediation is a process whereby parties who are looking to resolve their divorce or post judgment issues meet with a neutral third party (the Mediator) in an effort to settle the case. The parties’ agreement is then memorialized by the Mediator.

In Mediation, the parties (not a Judge and not the Mediator) determine how the case settles. While the Mediator may provide neutral guidance to both parties, the Mediator does not take sides and does not advocate for either party. In fact, in Connecticut, Mediators are not even necessarily attorneys! Since most parties to a divorce action are not attorneys themselves, how are they to navigate the complexities of a divorce, including making major financial and parenting decisions, without someone on their side? This is why it is critical for parties to hire their own Review Counsel to assist them during mediation.

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IMPORTANT DATES & TERMS IN CT DIVORCE CASES

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A Connecticut divorce attorney is often asked “What are the most important dates in a divorce case? Is it the date I file for divorce, the return date, the case management date, the uncontested date– what does it all mean?” This article is a general guide to understanding what some of the more important dates that someone getting divorced in Connecticut should know. Whether you are getting divorced and live in Darien, New Canaan, Westport, Greenwich, Stamford, Fairfield or Hartford, these dates all have the same meaning.

Date of filing the action: This is not the date the papers are served upon your spouse but rather the date that they are filed with the court along with proof that service by a Marshal has occurred.

Return date: The return date is actually the date that the court considers to be the start of the divorce action. It is typically approximately two (2) weeks after the date of filing and it is from this date that the 90-day waiting period or case management date is established. Nothing will occur in court on the actual return date and it is not necessary for anyone to appear that day.

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