, Connecticut 06105

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The Divorce Process

Matrimonial Law .  We restrict our practice to matrimonial law and mediation, or legal matters related directly to marriage. Our primary area is divorce, while at the other end of matrimony, we assist clients with prenuptial agreements.

Matrimonial law also involves such other legal areas as real estate, pensions, wills, business and taxes, but we work in those areas only as they relate to a matrimonial matter.

Because of the emotions present, divorces generally are the most stressful cases lawyers handle.  We have chosen to practice in this field, however, and like being able to help people through the legal and related aspects of a difficult period in their lives.

Lawyer-Client Relationship. By the time most people consult a lawyer in a matrimonial matter, the situation has reached a point where termination of the marriage generally will occur. Before instituting legal action, though, we consider it our professional responsibility to explore possibilities for preserving the marriage.

The decision to begin a divorce case is made by the client.  Similarly, most fundamental decisions during the case itself are made by the client; after all, it is the client's life and fortune that is being significantly affected.

Parties may feel that they have won or lost, the law attempts to reach a result that is fair to the interests of both parties and to any children involved.  If we proceed with a divorce case, we act as legal adviser and advocate.  Unlike other types of lawsuits, however, divorce cases usually do not involve a "winner" and a "loser."  Although responsibility as being to protect and further the interests of our clients, in doing what we can to assure a result that is fair to our clients.

We also help with the emotional aspects of a situation.  We frequently refer clients to therapists and counselors, believing that such professional help is desireable in working through the deep emotions associated with divorce.  In a list of stressful events in a person's life, termination of a marriage is near the top.

Divorce cases often result in the unnecessary aggravation of an already difficult situation.  Our experience is that we can be firm while still being fair.  We not only prefer to practice in this manner, but parties generally have to deal with each other after the legal action is completed and our actions can help make future relationships more workable.  We in fact often are able to help spouses have a better relationship at the end of a divorce than they had at the beginning.

Despite the problems spouses have had in a marriage, it is desirable to negotiate differences in a divorce case in a reasonable way. The most frequent differences concern money, property and children. Some 95% of divorce cases in Connecticut ultimately are settled and the parties are spared the time, expense, emotion and risk of a contested court proceeding (i.e., a trial).

In a case that is settled without a trial, we can carefully structure the arrangements involving spouses and children. If a trial is required, we will not have the opportunity to go into nearly as much depth with a judge as we can with your spouse and her or his lawyer.  There thus is the risk that the trial decision will differ significantly from a thoroughly negotiated resolution.  We have taken many cases to court over the years (the 5% that are not settled), however, and, if a reasonable resolution outside court is not achieved, we will not hesitate to go to trial.

Laws have developed as a result of applying reason to everyday life. A fundamental question that you should continually keep in mind is "Is it reasonable?"  For example, if one spouse had abused his or her children over the years, and if the other spouse had been a loving and concerned parent, it would not be reasonable for the abusing parent to have custody.  Neither would it normally be considered reasonable for one parent and two children to have 30% of the total income of a family unit and the other parent 70%.  In short, if you believe that a certain point is reasonable, chances are that the law will agree.

Difficulties often occur when a husband or wife demands too much or offers too little.  Reasonable positions generally lead to reasonable solutions and to divorces that are less painful, less destructive and less expensive.

"No Fault" Divorce.  Prior to 1973, divorces were granted in Connecticut based on one spouse's showing that the other spouse was at fault (such as "intolerable cruelty").  However, the Connecticut legislature decided in 1973 that it should not be necessary to prove fault in order to terminate a marital partnership.   The legislature thus added new grounds for terminating a marriage, including the ground used almost exclusively now, the "irretrievable breakdown of the marriage."  Under this ground it is not necessary to prove fault and it thus had been called "no-fault" divorce.

Technically speaking, the word "divorce" no longer appears in the Connecticut statutes.  Rather, the law now refers to "dissolution" of a marriage.  Because divorce still is the most commonly used term, however, we use that term in our practice.

The law now treats a marital partnership like a business partnership in certain respects.  When a business partnership terminates, there is a "dissolution" of the partnership.  The likeness to a business partnership also relates to the importance of fault.  That is, the courts increasingly are less interested in knowing which spouse was more at fault than the other.  The fundamental attitude is that each spouse entered into the partnership with her or his eyes open (or should have) and, if it turns out that the deal made was a poor one, the courts are not there to correct the original mistake.

Along these same lines, the courts do not like to hear what happened long ago in a marriage.  The courts take the position that, if one spouse did something negative many years ago, the other spouse should have done something about it then.

While the legislature eliminated the need to prove fault in order to terminate a marriage, the legislature did write into the law the concept of fault in deciding financial and property matters.  However, unless it has been substantial or gross, fault usually does not play a major role in financial and property decisions.

Legal Separation.  We often are asked what is meant by a "legal separation."  There is a procedure under Connecticut law that has as its concluding result a decree of legal separation.  A legal separation case requires the same steps as a divorce case, including the filing of court papers, court appearances and a court decree.  The basic difference from a divorce is that, with a decree of legal separation, the parties still are married.  A decree of legal separation may be readily changed into a divorce upon either party's request.

The term "legal separation" also is commonly used when a divorce case has been filed and the parties are operating under a temporary court decree, awaiting a final decree.  Although not technically a "legal separation," the parties are living under legal orders and they are separated

Commencing a Divorce Case.  A divorce case is started through a "Complaint," setting forth facts concerning the marriage and what is desired in the case.  The person instituting the case is the "plaintiff." 

In most cases the Complaint is given to a deputy sheriff, who in turn delivers a copy to the other spouse (the "defendant").  Except in unusual circumstances, we do not like to have a sheriff deliver papers by surprise.  We prefer to make arrangements with the defendant (or with his or her lawyer) concerning the mechanics of delivering the papers.  In some cases we start matters through simply mailing the suit papers to the lawyer for the defendant.

It makes little difference legally if one is the plaintiff or the defendant.  It may make a difference psychologically, if one spouse desires to be the initiating party.

The sheriff also will deliver a Summons to the defendant, directing an appearance in court on a certain day (called the "return date").  It is not necessary that the defendant physically appear on the return date, but only that a document called an "Appearance" be filed with the court.  The Appearance generally indicates that a named lawyer is representing the defendant and thereby lets the court and the plaintiff's lawyer know of the involvement in the case of the defendant's lawyer.

After the initial papers are served upon the defendant, they are sent to the Superior Court, a court file is opened and the case becomes a public record.

A spouse may represent herself or himself ("pro se"), but a divorce case normally is of enough importance so that it is advisable to be represented by a lawyer.

Processing a Court Case.  Under Connecticut law there is a 90-day waiting period after the return date before either party can have the marriage dissolved.  This period has been referred to as the "cooling-off period," designed to eliminate the possibility of a person's securing a divorce in a state of passion. 

As a practical matter, even a simple divorce normally takes five to six months to complete.  More complex or contested cases often last for a year or longer.

After the case is started, either spouse may ask for temporary court orders on matters such as alimony, child custody and access, child support, maintaining insurance, exclusive use of a home and legal fees.  The purpose of such orders is to establish court-ordered arrangements while the litigation is pending (thus referred to as "pendente lite" orders). 

Under Connecticut law, a spouse is entitled to a court order requiring the other spouse to participate in two conciliation conferences.  Our experience, however, has been that such court-ordered conferences are unproductive. 

The defendant also may file papers asking for a divorce and such other relief as may be desired ("Cross Complaint" or "Claims for Relief"). 

Matters pertaining to the ownership of property generally cannot be decided until the final disposition of a case.  Such property includes real estate, automobiles, furniture and bank accounts. 

A fundamental point to keep in mind is that court is a place to resolve disagreements.  It is only when the parties cannot agree between themselves, with the assistance of their lawyers, that it is necessary to go to court.

After the 90-day waiting period, a case can be heard either as a contested case or as an uncontested case.  A case does not appear automatically on the court calendar; a specific request must be made.

If the case is uncontested, only one spouse must appear at the final hearing.  However, we generally desire to have our clients and their spouses present.  The final hearing is the conclusion to a significant chapter in a person's life and we prefer that our clients know firsthand what transpires.  Further, judges generally want to hear from both spouses that they consider a settlement to be fair.

If the parties cannot agree about certain matters, the case is considered contested and both parties will appear for a trial before a judge.  Trials can last from an hour to several days, depending on the complexity of the case.

Family Relations Counselors.  Judges have limited time to become involved in divorce cases.  The State of Connecticut thus employs family relations counselors to assist judges in such ways as making child custody investigations and negotiating financial matters.  The recommendations of family relations counselors often carry great weight.

Child Custody and Access.  The court may assign custody of a minor child to either parent, to both parents jointly or to a third party, based upon the particular facts of a case.  The fundamental test is what is in the best interests of each child.  If a child is of sufficient age and capable of forming an intelligent preference, the court will give consideration to the wishes of the child; the court will not necessarily follow such wishes, however.

"Legal custody" generally means that a parent has the legal right to make basic decisions about a child, such as in the areas of education, religion and medical care.  "Physical custody" or "residential custody" concerns the parent with whom a child primarily lives.  An increasingly common occurrence is for parents to have joint legal custody and one parent to have residential custody. 

Rights of access (visitation) usually are granted to the non-custodial parent, again based upon the best interests of the child.  If the parents have not had serious difficulties concerning access, the court decree simply may specify "reasonable rights of access," thus allowing the children and parents the flexibility to work out their own schedule.  If "reasonable rights" are not workable, the decree will specify times for access.

Counsel for Children.  The court has the authority to appoint legal counsel to represent the interests of minor children.  Such an appointment usually is made when there are custody issues or other serious matters concerning the welfare of children.

Child Support.  In deciding upon child support, the court considers the needs of each minor child and the ability of each parent to pay support.  Connecticut has adopted Child Support Guidelines, which include a formula for determining appropriate levels of child support.  The legal obligation of a parent to support a child basically terminates when a child graduates from high school or reaches age 19.  The court in fact does not have the legal power to order child support after age 19 or to order that a parent pay for a college education, except when the parents specifically agree in writing to provide such.

Alimony.  The court may order either spouse to pay alimony to the other, indefinitely or for a fixed period. 

Among the factors considered in determining the amount and the duration of alimony are the length of the marriage; the causes for the divorce; the age, health, occupation, income, vocational skill, employability and needs of each party; and any property award which may be made to either party.  In addition, when a parent is awarded custody of minor children, the court will examine the desirability of the custodial parent's securing employment.

If there is no provision for alimony in the final decree, the court cannot order alimony in the future.  This law sometimes results in alimony of $1 per year.

Division of Property.  Connecticut courts have the authority to award either spouse any part of the property of the other spouse.  In entering orders concerning property, which can be done only at the time of the final decree, the courts follow standards similar to those used in awarding alimony.  Additionally, though, the contribution of each spouse to building up and maintaining the value of property will be considered.  In recent years Connecticut courts have been moving toward an equal division of property produced by the marriage (a "community property" approach). 

Restoration of Wife's Prior Name.  At the time of a final decree, a wife has the right to have her prior name restored.  Restoration most often occurs when there are no minor children involved.

Written Agreement/Court Decree.  If the parties can reach an understanding on matters in question, that understanding can be implemented through a written agreement which in turn becomes part of a court decree.

Income Tax Matters.  The party paying alimony normally can deduct such payments on his or her income tax return.  The party receiving alimony normally must include such payments as income for tax purposes.  Child support is neither deductible from the taxable income of the parent paying it nor includible by the parent receiving it. 

Dependency exemptions for children generally are awarded to the parent who pays child support, although parties can agree otherwise.

It usually is advantageous for parties to file joint income tax returns so long as they are able to do so.  The parties must be married as of December 31 of a particular year in order to file a joint return.

There is no established rule for the division of tax refunds. 

Transfers of property in divorce cases generally result in the ultimate tax responsibility falling upon the recipient of property.

Contempt of Court.  If either party violates any court order, the other party may compel the violating party to appear in court and answer concerning violation of the court order.  The court then has substantial discretion in dealing with the violating party, including entering a further order to rectify the violation, ordering that a party be jailed, and ordering that the party in contempt pay legal fees and other costs.

Modification of Court Orders.  Connecticut courts have the power to modify earlier orders concerning such matters as alimony and child custody and support.  Each court order is based on the factual circumstances at the time the order is entered.  If those circumstances change substantially, the court then can modify the prior order to reflect the changed circumstances.

Checklists and Worksheets.  We have developed checklists and worksheets for securing information and making sure that we cover the many items related to a divorce.  These also are mechanical means of holding down legal costs.

Wills. Divorce normally revokes an exiting will. Until the divorce decree, however, wills remain valid. 

Office Hours.  Our regular office hours are 8:30 to 5:00, Monday through Friday.  We often are in the office at other hours and on weekends, and we also have voicemail service.

Closing Points.  We keep in regular communication with our clients. We shall send you copies of all appropriate legal documents and letters for purposes of keeping you informed of what we are doing on your behalf.  We need cooperation from our clients throughout a case, treating the lawyer-client relationship as a working partnership.

We request that you maintain a chronological personal file on your matter and we recommend that you keep the file in a secure place.  Your file will be a helpful reference as we proceed.

We have responsibilities to other clients and become involved in hearings, trials or other matters that require our professional attention for concentrated periods. We continually try to give prompt attention to each client and we also must balance priorities.

We encourage you to deal with our staff.  They have substantial skills and experience, and can be helpful on many matters. They also know their limits, however, and will refer you to lawyers when necessary.

In summary, we want to be open and realistic from the beginning of each matter.  We want to do all that we can to help you through a difficult time and to achieve positive results for you.

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