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Child Support & Children’s Expenses

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This Week’s Blog by Amanda K. Rieben

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

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

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

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

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

Appeals in Connecticut Family Law Cases

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Every Connecticut litigant has the right to appeal a final judgment entered by a trial court.  In divorce cases, these appeals often arise after the trial court enters financial orders, but, on occasion, there may be sufficient cause to appeal a trial court’s orders concerning the custody of and/or visitation with minor children.  In Connecticut, an appeal must be filed no later than twenty days after the court issues notice of its decision.  It is important that if you receive a decision from the trial court with which you disagree or that you do not understand, you seek out the advice of seasoned appellate counsel immediately.  If your former spouse is filing an appeal, you should speak with an appellate lawyer to make sure that your position is adequately defended on appeal and to ensure that your rights are protected during the pendency of the appeal.  The attorneys at Broder and Orland LLC have experience representing individuals in Connecticut’s Appellate Courts and can help answer your questions.

In Connecticut, most appeals from a trial court’s final judgment are heard and decided by the Connecticut Appellate Court.  After the Appellate Court has rendered a decision, a party can ask the Connecticut Supreme Court to review the decision of the Appellate Court.   On rare occasions, an appeal of a trial court’s final judgment can be heard directly by the Supreme Court without the need to seek review first with the Appellate Court.  This can occur when: (1) the appeal concerns an issue that has never been ruled upon by the Appellate Court or the Supreme Court in Connecticut; (2) the appeal raises an issue where the Appellate Court has issued disparate opinions in the past that are in need of being harmonized; or (3) when the Supreme Court determines that the issue at hand is a matter of utmost public importance.

Once an appeal is filed, the order(s) associated with the final judgment may be automatically stayed.  This means that until the appeal is finally concluded, the trial court cannot enforce the order(s) that are the subject of the appeal.  A common example of the automatic stay in practice in family cases occurs where the trial court orders that the marital home be sold.  Pursuant to the automatic stay rule, that order would not be enforced during the pendency of the appeal without the trial court terminating the stay of execution of that order.  The trial court can terminate the automatic stay of its orders on its own volition or after a motion is filed by either party.  In such a situation, the trial court is not the final arbiter of determining whether there should or should not be a stay of execution of its order.  A party aggrieved by orders regarding the termination of a stay can seek review of those orders by the Appellate Court.

There are certain exceptions to the automatic stay rule that are permitted by the Practice Book in family cases.  For example, final orders concerning periodic alimony, child support, custody, and visitation are not automatically stayed pending an appeal.  If you are unhappy with the court’s alimony orders, those orders will go into effect during the pendency of your appeal unless you ask the court to impose a stay where there is not one automatically imposed by the court rules.  The Appellate Court has the same power to review the issuance of a stay as it does the termination of one.

The likelihood of success on appeal is largely determined by the level of scrutiny applied by the Appellate Court.  The Appellate Court has broad authority to overturn a trial court’s decision when the decision rests upon a question of law which would include a constitutional claim, interpretation of prior precedents, and statutory interpretation.  This is referred to as plenary review; the Appellate Court decides the issue anew.  Issues concerning factual findings by the trial court or any other decision where the court has the discretion to enter an order as it sees fit is governed by the abuse of discretion standard of review.  Unlike plenary review, the Appellate Court will defer or give the benefit of the doubt to the considerations and determinations made by the trial court.  Mixed issues of law and fact invoke the plenary review standard.  The attorneys at Broder and Orland LLC can review your case to tell you which standard of review would apply to your case.

Unlike the trial court, the Appellate Court does not seek or require the submission of new evidence or new testimony.  The cases at this level are resolved after each party submits well-researched briefs and argues his or her position before the Appellate Court.  In addition to reviewing the trial court’s decision, preparation of an appellate brief requires review of the transcripts from the trial court proceedings at issue and review of the exhibits submitted to the trial court judge.   The party who filed the appeal files the first brief and the other party files a brief in response to the appealing party’s brief.  The appealing party gets the final word and files a reply brief to the responsive brief.  After all of the briefs are filed, the Appellate Court will schedule a date for oral argument before a panel of Appellate judges.  At the Appellate Court, the panel typically consists of three judges.  At the Supreme Court, the panel consists of seven justices.   A party may attend oral argument, but is not required to do so.

Broder Orland Murray & DeMattie LLC is a full-service family law firm that can provide you with seasoned, practical and vigorous representation in all aspects of family law appellate litigation in Connecticut.

Post Judgement – Motions for Contempt

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During your divorce proceeding, you and your attorney will work diligently to ensure that your final Separation Agreement is as detailed as possible. But what happens when after the agreement is signed and your divorce is finalized, your spouse decides to disregard your carefully crafted Separation Agreement? Perhaps your spouse failed to pay you the correct amount of alimony or child support, or perhaps he or she failed to abide by the parenting plan that you tirelessly negotiated. This is the time to consider filing a Post Judgment Motion for Contempt.

During your divorce proceeding you may have heard the phrase “Pendente Lite,” meaning during the litigation. All motions filed before the date of divorce are considered Pendente Lite motions as they are filed before a final judgment is entered into. Any litigation that occurs after the date a final judgment is entered into is referred to as “Post Judgment”.

Once your separation agreement is signed, it can feel devastating and overwhelming to be confronted by a spouse who chooses not to abide by the agreement that the two of you entered into. Fortunately, the Connecticut Courts are well equipped to handle such matters and the attorneys at Broder Orland Murray & DeMattie, LLC are well versed in all areas of Post Judgment litigation.

A Motion for Contempt, whether filed Pendente Lite or Post Judgment, requires a specific burden of proof to be met by the moving party. In order for the judge to make a finding of contempt you will need to show by clear and convincing evidence, the following: that there is a clear and unambiguous court order, that the order has been violated, that the party who violated the order acted willfully, and finally, you must clearly explain the relief you are seeking from the court.

If for instance, your Separation Agreement states that your spouse is obligated to pay you a set amount of money as Unallocated Alimony and Child Support on the first and fifteenth of each month, but your spouse begins paying you an incorrect amount one time per month, say on the twentieth, you may consider filing a Motion for Contempt re: Unallocated Alimony and Child Support, Post Judgment. The first prong of your burden of proof will be met by your Separation Agreement so long as the agreement is a court order and clearly and unambiguously outlines your spouse’s obligation. To meet the remaining prongs, that your spouse violated the order and acted willfully in doing so, you will want to make sure that you have kept diligent records. At a Hearing, you will want to present the judge will as much information as possible regarding the payments you have or have not received from your spouse and any information regarding your spouse’s willful conduct. You will need to show that your spouse acted deliberately and intentionally when they failed to pay you.

Some other common issues that Post Judgment Motions for Contempt address are failure to properly divide marital assets, failure to abide by parenting plans, and failure to cover or pay for mutually agreed upon children’s expenses.  No matter what issue arises after a final judgment is entered into in your action for dissolution, the attorneys at Broder Orland Murray & DeMattie, LLC can provide the necessary support and knowledge to remedy the situation.

What state has jurisdiction over Custody of my Children?

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Due in part to the transient nature of modern society, Congress enacted legislation governing interstate custody disputes.  The two major legislative Acts are the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and the Parental Kidnapping Prevention Act (“PKPA”).  At Broder Orland Murray & DeMattie, LLC were are well versed in the nuances of these Acts and have successfully litigated the issues in the various Judicial Districts.  This three (3) part series will explore the interplay between the UCCJEA, PKPA, and their major exceptions.

PART I – UCCJEA

All states except for Massachusetts have adopted the UCCJEA.  The Connecticut version of the UCCJEA is codified in Connecticut General Statutes (“C.G.S.”) § 46b-115.  Pursuant to 46b-115k, except in emergency purposes, Connecticut has jurisdiction to make an initial custody determination if:

  1. Connecticut is the home state of the child on the date of the commencement of the child custody proceeding;
  2. Connecticut was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from Connecticut, and a parent or a person acting as a parent continues to reside in Connecticut;
  3. A State other than Connecticut does not have jurisdiction under subdivisions (1) or (2), the child and at least one parent or person acting as a parent has a significant connection with Connecticut other than mere physical presence, and there is substantial evidence available in Connecticut concerning the child’s care, protection, training and personal relationships;
  4. A State other than Connecticut, which is the home state of the child, has declined to exercise jurisdiction on the ground that Connecticut is the more appropriate forum under the UCCJEA, the child and at least one parent or person acting as a parent have a significant connection with Connecticut other than mere physical presence, and there is substantial evidence available in Connecticut concerning the child’s care, protection, training and personal relationships;
  5. All courts having jurisdiction under subdivisions (1) to (4), have declined jurisdiction on the ground that Connecticut is the more appropriate forum to determine custody; or
  6. No court of any other state would have jurisdiction under subdivisions (1) to (5).

The major factual dispute that arises out of a UCCJEA proceeding is: “what state is the ‘home state’ of the child?” C.G.S. § 46b-115a(7) defines “home state” as: “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period.”

According to the Connecticut Appellate Court, with regard to whether a court has jurisdiction, “the traditional requisite for subject matter jurisdiction in matrimonial proceedings has been domicil.”  Juma v. Aomo, 143 Conn. App. 51, 57 (2013).  “To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home…A former domicil persists until a new one is acquired…. Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old.”

Thus, the determination of “home state” is often a question of intent, which generally requires a hearing to establish the necessary facts.  Each case is unique, and some of the factors a court usually wants to know are: (1) where did the child attend school, (2) where are the child’s medical providers located, (3) where do the child’s lessons and competitions occur, (4) where is the parent registered to vote, (5) what state is the parent’s driver’s license, (6) what state did the parent file taxes and/or (7) what was the special purpose or reason for the temporary absence, if any?

The attorneys at Broder Orland Murray & DeMattie LLC are experienced with the UCCJEA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.

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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HOW DO I FIND A DIVORCE LAWYER THAT IS RIGHT FOR ME?

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If you are contemplating divorce or have been served with divorce papers, this is one of the first questions to cross your mind. Unless you’ve been divorced before, it’s unlikely you have had any real experience with a lawyer who concentrates in that area of the law. So where to get started?

Most likely, given the divorce rate in Westport, Greenwich, Darien, New Canaan and surrounding Fairfield County towns, you have friends and family who have been down this road before. Their stories range from text book to nightmare and their assessments of the lawyers involved runs a similar gamut.

Take a deep breath. There are some wonderful lawyers who practice Family Law, of which divorce is a part. They are dedicated to their clients and behave in a skillful and ethical manner. They exhibit a healthy balance of objectivity and compassion. This is the type of lawyer you should seek out.

If you’re willing to share some confidences, the most natural place to start is by asking a couple of trusted friends or colleagues who have successfully navigated the process in the past. It is important to bear in mind that each case is different and the results can vary widely. So don’t get married to a set of facts or outcomes, but rather try to get a feel for what attorney might be the best match for you.

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POSTNUPTIAL AGREEMENTS IN CT PART I: IS IT RIGHT FOR ME?

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Many clients come into our office from the towns of Greenwich, Darien, New Canaan, Rowayton, Stamford, and Westport, wondering whether they should enter into a Postnuptial Agreement. In general terms, a Postnuptial Agreement is a contract between a husband and wife entered into after their wedding ceremony, anywhere from weeks to years later. Postnuptial Agreements are often created in the interest of preserving the marriage, and encouraging the private resolution of family issues. Historically, the state of Connecticut disfavored divorces, and found postnuptial agreements akin to divorce and contrary to public policy. In 2011, the state’s position shifted and in Bedrick v. Bedrick, the Connecticut Supreme Court upheld the enforceability of Postnuptial Agreements finding them consistent with public policy. As part of the Connecticut Supreme Court’s decision, the Court acknowledged that Postnuptial Agreements help privately resolve marital conflicts, protect third party interests, and address the parties’ financial concerns.

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CHILD SUPPORT PART III: DEVIATING FROM THE GUIDELINES

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As discussed in Part I and II of this series, child support in Connecticut is determined by the Child Support Guidelines and numerous statutory factors. In the Connecticut court system there is a presumption that the amount of child support as calculated by the guidelines is the correct amount to be ordered by the court. However, in some cases, either an upward or downward deviation from the guidelines may be necessary or appropriate for certain families, including those who live in the towns of Greenwich, Stamford, Darien, New Canaan and Westport.

The presumptive amount of support as determined by the guidelines may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate. Parties may also enter an agreement that rebuts the presumed amount so long as the agreement cites or more deviation criteria as outlined by the Connecticut Child Support Guidelines. In order to deviate from the presumptive amount of support as determined by the guidelines, the presumptive amount of support must first be stated and specific deviation criteria must be cited. Connecticut case law emphasizes that all child support awards, including those resulting from agreements of the parties, must be made in accordance with the Child Support Guidelines.

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DIVORCE AND COLLEGE EDUCATION COSTS

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“Who will have to pay for our children’s college expenses?” is one of the most frequent questions posed to divorce lawyers in Greenwich, Stamford, Darien, New Canaan and Westport. Given that divorce is often a time of great financial uncertainty and anxiety for divorcing spouses, it is certainly understandable that many of our clients are concerned about whether, and to what extent, each parent will be obligated to contribute to their children’s college expenses.

Most clients are aware, even before they meet with a family law attorney, that a primary custodial parent will be entitled to receive child support payments from a non-custodial parent under Connecticut law. However, while such child payments are meant to cover a broad range of child-related expenses (such as food, shelter, clothing and other basic necessities), child support obligations do not account for college costs. In fact, child support obligations extend only until a child reaches the age of eighteen (or, in situations where a child does not graduate from high school by age eighteen, until the earlier to occur of a child’s graduation from High School or his or her 19th birthday).

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