POST JUDGMENT MOTIONS
Motions for Contempt
Orders entered at the
conclusion of divorce proceedings typically impose upon the parties ongoing
obligations to one another. For example, one might party might be required to
pay alimony or child support, divide a pension or retirement account, or even
sell a home. In all cases where parents share joint legal custody of their
children, they each have an obligation to consult with each other regarding
major decisions affecting the children’s welfare, and parenting plans often
give parents the right to have physical custody, or visitation, of the children
at designated times. Unfortunately, it is often the case that at one point or
another, the parties will fall short of fulfilling their obligations. Often a
party’s noncompliance is completely inadvertent; all too frequently, though, it
is intentional.
A motion for contempt is
the primary mechanism for enforcing court orders. Generally speaking, a motion
is simply a formal, written request submitted to the court requesting its
involvement in a particular matter, and ultimately some sort of specified
relief. Contempt is defined as the wilfull violation of a court order. Thus, in
order to prevail on a motion for contempt, the moving party must prove not only
that nonmoving party violated a court order, but that he or she did so
wilfully, or purposely. Given the requirement that a violation was wilfull, the
nonmoving party may present evidence in an effort to show, for example, that he
or she was unable to comply with the order, or that there was a genuine dispute
over the meaning of the order. In the context of alimony or child support, the
payor may try to show that he or she simply could not afford to make the
payments. Whether this is true or not will be a question of fact for the court
to ultimately decide based on the circumstances surrounding the violation and
the evidence presented at trial.
Assuming a moving party
prevails on a motion for contempt, the court will likely enter orders requiring
the nonmoving party to comply in some fashion. The court may also enter orders
penalizing the nonmoving party for his or her noncompliance. Such penalties
might include payment of the counsel fees and/or court costs the moving party
incurred in prosecuting the motion, sanctions, or both. In extreme cases, usually
involving unpaid child support, the court may even order that the noncomplying
party be incarcerated for a designated period of time, or until he pays a
designated sum (often referred to as a “purge amount.”) toward the past due
balance.
PRENUPTIAL AND POSTNUPTIAL AGREEMENTS
While prenuptial and
postnuptial agreements often do not relate directly to dissolution proceedings,
they are an area of interest for our clients and are referenced here for the
sake of completeness.
Prenuptial Agreements
When prospective clients
first contact our office about obtaining a prenuptial agreement, they are
invariably concerned with approaching the process in a diplomatic manner. After
all, acknowledging that a marriage may eventually breakdown is the last thing a
couple wants to think about during the engagement period. However, by the time
a prospective client contacts our office, the couple has usually discussed the
topic already and come to some understanding as to what the terms of the
agreement might be. At that point, the client is simply looking for guidance
through the process.
It is important to note
from the outset that there are certain requirements and formalities that must
be met to render a prenuptial agreement valid and enforceable. Firstly, the
agreement must be validly entered into by the parties. This means that both
parties must enter into the agreement voluntarily and knowingly. In other
words, a party must not have been forced or coerced into entering into the
agreement, and must have a full understanding of the provisions contained
therein. If a party is “tricked” in some fashion into entering into a
prenuptial agreement, it will likely be deemed unenforceable. The requirement
that an agreement be entered into knowingly and voluntarily also requires that
each party disclose and receive a fair and reasonable disclosure of the amount,
character and value of property, financial obligations and income of the other
party.
Secondly, the party
against whom enforcement is sought must have been given an opportunity to
consult with independent counsel. In this regard, a client would be well
advised to begin the process of obtaining a prenuptial agreement well in
advance of the wedding. In the event the party does not wish to obtain counsel,
this fact should be acknowledged and memorialized in the agreement to avoid
confusion in the future.
Thirdly, case law suggests
that a prenuptial agreement will not be enforceable where it violates state
statutes or public policy. For example, although a party may voluntarily waive
his or her statutory right to spousal support, a party may not enter into a
contractual agreement to avoid his or her statutory obligation to support his
or her children.
Finally, a prenuptial
agreement will be rendered unenforceable where it was unconscionable at the
time of execution, or when enforcement is sought. On this point, case law
suggests that a prenuptial agreement will not be enforced where the
circumstances of the parties at the time of dissolution are so far beyond the
contemplation of the parties at the time the agreement was made as to make
enforcement of the agreement work an injustice, or where the economic status of
the parties has changed dramatically between the date of the agreement and the
dissolution that literal enforcement would work an injustice. Additionally,
where a marriage has broken down through the fault of one party, a prenuptial
waiver may not be enforceable depending on the circumstances of the case and
the terms of the agreement. Ultimately, whether a premarital agreement is
unconscionable will be determined by a court during a dissolution proceeding.
Although parties are free
to address a variety of matters in a premarital agreement, the main issues
typically relate to their respective rights in each other’s property, as well
as property acquired during the marriage; their respective rights to buy, sell,
use or transfer property, the allocation of property upon dissolution, or the
designation or elimination of spousal support. Parties may not enter into an
agreement that adversely affects a child’s right to financial support, and
issues relating to the care and custody of children will be subject to judicial
review and appropriate modification. A premarital agreement generally becomes
effective upon marriage, and may only be amended or revoked by a written
agreement signed by the parties.
Postnuptial Agreements
Upon beginning an action
for a divorce, many people will disclose to their lawyers that the parties had
already contemplated the end of their marriage, sometimes many years before.
More often than one would guess, the parties had even mapped out this projected
end to their relationship with an agreement written during the marriage itself
– maybe hammered out on the family computer, or perhaps scribbled on a
restaurant napkin – which was intended by the parties to govern the terms of
any divorce that would loom in the future.
With perhaps a waiver of
alimony, a promise to exclude inheritance proceeds, or a pledge to leave the
marital home intact an intended postnuptial agreement could be as flexible and
varied as the complex circumstances of the marriage itself. However, unlike
their premarital cousins (agreements executed before marriage are governed both
C.G.S. § 46b-36b et seq. and controlling precedent), until recently postnuptial
agreements had not been officially recognized by the Connecticut Supreme Court
and the prospects of their enforceability at trial was nebulous at best.
In 2011, the Connecticut
Supreme Court for the first time set forth parameters to test the
enforceability of postnuptial agreements.49 Addressing first the question of
whether postnuptial agreements are contrary to public policy, the Supreme Court
concluded in the negative. While historically the Court had determined that
prenuptial agreements (as an example) were generally held to violate public
policy if they promoted, facilitated, or provided an incentive for separation
or divorce,50 it has been more recently decided that “private settlement of the
financial affairs of estranged marital partners is a goal that courts should
support rather than undermine.”51 Case law now dictates that postnuptial
agreements may also encourage the private resolution of family issues as they
allow couples to eliminate a source of emotional turmoil – usually, financial
uncertainty – and focus instead on resolving other aspects of the marriage that
may be problematic.52
However, the Supreme Court
has also held that heightened scrutiny must be applied to a trial judge’s
review of a contract between already married persons, noting that “spouses do
not contract under the same conditions as either prospective spouses or spouses
who have determined to dissolve their marriage.” The Court points out that
already married spouses are “less cautious” in a contractual relationship with
one another than they would be as prospective spouses, and similarly, are
“certainly less cautious” with one another than they would be with third
parties. “With lessened caution comes greater potential for one spouse to take
advantage of the other.”53
As such, the law now
requires trial courts to enforce a postnuptial agreement only if it complies
with applicable contract principles (including the element of consideration, or
in layman’s terms, the “give and take” in any contractual arrangement), if the
terms of the agreement are both fair and equitable at the time of execution and
if those terms are not unconscionable at the time of dissolution of the
marriage. To determine whether terms are “fair and equitable” at the time of
execution, a court will look to whether the agreement was made voluntarily, in
other words without any undue influence, fraud, coercion, or duress. In
addition, as with prenuptial agreements, there must be a factual finding that
each spouse was given full, fair, and reasonable disclosure of all property,
assets, financial obligations, and income of the other spouse when entering
into the contract.
Importantly also, the
Court further held that “unfairness or inequity alone does not render a
postnuptial agreement unconscionable; spouses may agree on an unequal
distribution of assets at dissolution.”54 Rather, trial courts are charged with
applying a “totality of the circumstances” approach to determining the fairness
and equity of enforcing a postnuptial agreement.
CONCLUSION
By no means is this
guidebook intended to replace real world experience, the sound advice of an
experienced family law practitioner, or an entire semester of family law at an
accredited law school. Nevertheless, with a basic understanding of the divorce
process and a primer on the major principles of matrimonial law, it is our hope
that fewer litigants will feel overwhelmed, outgunned, or even mystified by the
system.
This has been intended to
be a starting point for divorcing spouses – and whether it helps the reader
cope with a court appearance or even better communicate with their chosen
attorney, it has served its purpose. We recommend that you entrust your unique
set of circumstances to a legal professional who can objectively and
comprehensively advance and protect your interests. We wish you peace, we wish
you clarity, and we wish you the very best as you begin the next chapter of
your life.
Footnotes
49 Bedrick v. Bedrick, 200
Conn. 691 (2011).
50 McHugh v. McHugh, 181 Conn. 482 (1980).
51 Billington v. Billington, 220 Conn. 212 (1991).
52 Bedrick at 698.
53 Bedrick at 703.
54 Bedrick at 706.
