Is there a difference between a divorce and a dissolution?
People commonly use both divorce and dissolution of marriage to refer to the same thing, the formal termination by the Courts of a marriage. The correct legal term is “dissolution of marriage” OR “Dissolution of Civil Union”. (Since Oct.1,2005, dissolution of a civil union has been recognized by Connecticut law.) When people speak among themselves, they generally use the more informal term, divorce.
What is “No Fault” Dissolution of Marriage?
In Connecticut, since 1973, it is no longer necessary to prove that one party is at fault to obtain a dissolution of marriage. It is only necessary that a party tell the Court that the marriage/civil union has broken down irretrievably and that there is no chance of reconciliation. However, fault, such as adultery, spousal abuse, intolerable cruelty, gambling, dissipation of assets, drug and alcohol abuse, can be a factor that may play a role in the award of alimony and the distribution of property.
How long does it take to Obtain a Dissolution?
From the time the Case is started to conclusion, it will take a minimum of 4 months. This takes into consideration the time from service of the Complaint, the return of papers to the Court and the automatic 90 day statutory stay (waiting period) before a case can be finalized. In most cases, it takes longer. The reason for this is that it is important for attorneys to obtain all information about the parties financial condition in order that he/she properly advise the client as to what is a proper resolution of the case. The acquisition and analysis of this financial information can take time. In addition, unless both parties are in agreement, there may be Court hearings and conferences that will extend the time to resolve the case. Also, the amount of cases that the Court must manage and process also affects the length of time to conclude a case.
How do You Start a Case?
A case is started when one party authorizes his or her lawyer to prepare and serve a summons and complaint on the other party. The person who begins the case is called the Plaintiff and the other party is called the Defendant. The Defendant is served by a State Marshal. In most instances, the Defendant knows that he or she shall be served. I instruct my marshal to call the Defendant and arrange for service at a time and place which is convenient for him/her and will not lead to embarrassment. At the time the attorney signs the Complaint, Automatic Orders go into effect as regards the Plaintiff, and when the Defendant is served the Automatic Orders are effective as to the Defendant.
What are Automatic Orders?
Automatic Orders are intended to maintain the status quo during a Dissolution matter.
They state that the parties cannot transfer, hide or dissipate assets; they cannot go into debt by taking out mortgages or excessive charging on credit cards (except for normal household expenses); children cannot be permanently removed from the State of Connecticut, parties and children cannot be removed as insureds from car, health or other insurance policies; parties cannot be removed as beneficiaries on life insurance policies; also insurance policies cannot be terminated. The Automatic Orders can be modified or changed if the parties sign and file an agreement with the Court or upon Court order.
Are Temporary Orders Available While the Case is Pending?
The laws provide that while a case is pending, a party can obtain temporary orders which are called “pendente lite orders”. These orders can relate to custody and visitation with the children, child support and alimony. There may also be orders for exclusive possession of the family home and allowances (attorney?s fees) to prosecute and/or defend the case.
These orders are obtained by filing a Motion with the Court and attending a hearing. At the hearing, the Court will examine the parties Financial Affidavits and hear evidence, if necessary. If the parties are unable to come to an Agreement prior to the hearing, they will meet with a Family Services Officer who will try to help them come to an Agreement. In most instances, the Family Service Officer, who are employees of the Court, will be successful in helping the parties come to an Agreement.
What is a Financial Affidavit?
A Financial Affidavit is a Court approved form which is required to be filed whenever the Court makes any financial award, such as child support, alimony, division of assets and debts and attorneys fees. The Financial Affidavit sets out the party’s weekly income and expenses as well as his/her current assets and liabilities. The Financial Affidavit is signed by the party who certifies, under oath, that it is “true and accurate”.
The Court uses the Financial Affidavit to determine if the Agreements that are reached are fair and equitable. At a contested hearing or trial, the Court will use the Financial Affidavit as an aid in making its Orders.
What is Custody?
A case that involves a dispute over the custody of children is often the most difficult matter a Court faces. Where a child will spend most of his/her time is the most important decision that parties must make. The Connecticut Legislature has determined that “joint custody” is the preferred outcome for children whose parents are dissolving their relationship. Joint Custody means that both parents make the major decisions in a child’s life. That is in what religion, if any, shall the child be raised, shall the child go to public, private, parochial school or be home-schooled, what elective medical/dental procedures shall the child have. It does not necessarily mean that the child shall live with both parents.
As it is important that both parents are involved in the life of a child, the Court will also enter visitation Orders for the parent with whom the child does not live.
If the parties cannot agree as to where a child will live and how much time s/he shall spend with the non-residential parent, the Court will make that decision based on “the best interests of the child”. However, in order to make that decision, the Court will require independent information about the child and parents. This information is provided by custody studies, psychological evaluations, school reports and other witnesses. As the Court’s decision will effect the life of the child, the Court will require that an attorney or guardian-ad-litem be appointed to represent the child, be present during the trial and advise the Court.
How is Child Support determined?
A Court can order one party to pay child support to the party with whom the child is residing. The amount of “Child Support” is determined by examining each party’s income and deductions such as taxes, social security, union dues and health insurance. Once this is computed, a child support award is computed based on the number of children. The computation is made with reference to Child Support Guidelines which the Federal Government mandate each state to adopt. In Connecticut, the Child Support Guidelines are based on the parents income and what it costs to raise children in the State of Connecticut. A Court can only deviate from the Guidelines in specific circumstances.
What is Alimony?
Alimony is the payment of money, other than child support, from one party to the other. It is either paid periodically or in a lump-sum payment. Sometimes, neither alimony and child support is ordered and instead, the payment is called unallocated family support. The payment of alimony and/or unallocated family support has federal and state income tax consequences for the payor and the payee. The payor may be able to deduct alimony or family support from his/her income while the person who is the recipient may have to include the alimony/family support in his/her income. Because of the different income tax rates, tax planning can be a major consideration in determining what shall be paid in a dissolution of marriage action. The tax benefits of paying/receiving alimony/family support are not available in matters involving the dissolution of civil unions because of the federal Defense of Marriage Act.
How are Assets and Debts Divided?
Once the parties have all information regarding their and each other’s assets and debts, it is the appropriate time to attempt to divide assets and allocate responsibility for marital debt. Assets can include the marital home, other real estate owned, motor vehicles, bank accounts, stocks, bonds and other investments, pension plans, IRA’s, other retirement savings accounts, jewelry, furniture, antiques and all things a party owns or has an interest in. Many factors are considered in dividing property. Some are age, status, occupation and health of the parties, how the asset/debt was acquired, length of the marriage/civil union, the opportunity for each party to acquire further assets in life, other sources of income and fault. Other factors are whether a party has hidden, transferred or dissipated assets.
In most cases, the parties come to a negotiated agreement which includes the division of assets. If an Agreement cannot be reached, a Trial will be held and the Judge will make the decision. When a Judge decides a case, s/he will consider all factors of the case and the final decision will reflect all claims for relief, including child support, alimony, distribution of assets and attorney’s fees. The Supreme Court has described the Judgment as a “Mosaic” with each part dependant on the other.
Can a Trial be Avoided?
Yes. Any trial involving personal relationships is the most expensive type of litigation, both financially and emotionally. The Court has many procedures in place to assist parties in coming to an Agreement. The Court encourages parties to have a 4-way meeting between themselves and their attorneys. There are Court meetings with a pair of Special Masters (one male and one female) who are experienced family lawyers who hear a short presentation by the attorneys for the parties, review financial information and make a recommendation as to what they believe would be a fair and equitable resolution of the matter as well as what they believe a Judge would do after a full trial. If the Special Masters session can’t resolve the matter, a Pre-Trial hearing with a Judge will be held before a trial takes place.
What Is “PARENTING EDUCATION”?
The Connecticut Legislature has mandated that parents of children going through the dissolution of marriage process take part in a “Parenting Education Program”. The purpose of this program is not to teach you how to parent, but to teach you how to be a “divorced parent”. In other words, the program will teach you the ramifications of your divorce to your children, especially if you decide to disparage and castigate the other parent for real or imagined wrongs in front of your children. The program will also teach you how your children may react to your decision to divorce, including how they may attempt to pit you against your spouse, not only to obtain a goal but also to attempt to punish you for your actions.
This program has been in existence for over five (5) years and participants have overwhelmingly reacted positively to the program. It is suggested that the parties attend the same program in order that the most benefits are attained. The cost for this program is $125.00.
Should I Change My Will and Insurance Beneficiaries?
Under Connecticut law, a dissolution of marriage invalidates any Will you may have. To protect oneself and the interests of loved ones, it is important that a new Will be drawn up after the dissolution. The dissolution of your marriage or civil union, however, will not affect the beneficiary of any life insurance policies. However, if a death occurs during the pendency of a dissolution, the assets of the deceased spouse will go to the person(s) named as beneficiaries in the decedent’s Will or will most likely go to the spouse, if there is no Will.
Under the Automatic Orders discussed above, you cannot change the beneficiaries on your life insurance policies during the pendency of the divorce, without a Court Order or Agreement between the parties.
What If My Spouse Does Not Make Court Ordered Payments or Does Not Follow Other Court Orders?
There are times when a spouse, or ex-spouse, fails to make payments of child support or alimony, fails to allow court ordered visitation or fails to comply with other Orders of the Court. In this event, a Motion for Contempt may be brought to force the non-complying spouse to follow the Orders entered by the Court. The Court can then enter further Orders compelling the non-complying spouse to follow its original Orders. The Court can also impose fines, impose attorney’s fees or incarcerate the non-complying spouse.
Can a Final Court Order be Changed?
Final Orders other than custody, visitation, child support and alimony cannot be changed or modified. The exception is when the Orders have been obtained by fraud or mutual mistake or agreement.
Child Support and Alimony can be modified if there has been a substantial change in circumstances since the date of the dissolution, unless there has been an Agreement that modification not be permitted.
Custody of and visitation with the children may be modified at any time after the Judgment if there is a substantial change of circumstances affecting the best interests of the children.
Call the Law Offices of Henry B. Hurvitz at (860) 232-8300 or contact us online to schedule a free initial consultation.