HOW ISSUES ARE DECIDED

HOW ISSUES ARE DECIDED

New Canaan, CT | Darien, CT | Greenwich, CT
Stamford, CT | Westport, CT

 

An attorney’s role should not be to impose personal feelings about fairness upon you. Rather, it is to educate and advise you of the important issues in your case, how the law addresses those issues, and what the judge may do. Your lawyer should neither make decisions for you nor pressure you into accepting or rejecting a settlement. Your lawyer should give you thoughtful advice. You should, in turn, give your lawyer’s advice serious consideration. Do not expect to be “happy” with the financial outcome of your case. Because divorce requires that one household become two, both spouses will, except in cases of extreme wealth, have to reduce their style of living. Divorce should, however, not financially crush one spouse and leave the other unscathed.  For more information, contact Ferro & Battey, LLC today.

 

 To read more about how issues are decided, click here.

 

Connecticut has statutes and case law which tell its judges what must be considered. The following is a brief summary description of what the statutes provide:

 

ALIMONY

The court may order either of the parties to pay alimony to the other. In deciding whether to award alimony and the amount and duration of the award, the court must consider the length of the marriage; the causes of the dissolution of marriage or legal separation; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, and needs of each of the parties; and any property award which the court may make. In addition, where a parent has been awarded custody of minor children, the court must consider the desirability of that parent securing employment.

The court has the discretion to decide the weight it will give those factors. In a given case, it can determine that a spouse’s poor health is the most important factor. In a different case, it may properly conclude that a spouse’s income is most important.

Alimony is generally subject to modification by the court if financial circumstances substantially change unless the award, when entered, was made non-modifiable. Alimony is also subject to modification if the recipient lives with another person and the recipient’s finances have changed. The spouses can agree to make alimony not subject to modification, or to limit the circumstances which would give rise to modification. If, however, alimony is not provided for at the time of the divorce, it cannot be awarded or modified at a later time. Depending on the circumstances of your case, it may be wise or foolish to bargain for or against modifiable alimony. Discuss this with your lawyer.
PROPERTY DIVISION

 

The court may also award either spouse any or all of the property of the other. Connecticut is not a community property state. Property does not get automatically divided fifty-fifty. Nor is legal title determinative. 


Instead, in deciding whether to transfer property and, if so, how much, the court must consider the same factors relevant to alimony awards as well as each spouse’s opportunity to acquire assets and income in the future and each spouse’s contribution to the acquisition, preservation, or appreciation in value of the parties’ property. Once ordered, property division can never be modified, save for exceptional reasons such as fraud. 


You and your lawyer should be careful to take account of all important assets. Assets subject to division can include homes, bank and brokerage accounts, retirement accounts, business interests, and personal property.


Sometimes pensions and other deferred compensation get overlooked. Most pensions can be divided tax-free through a device known as Qualified Domestic Relations Order (Q.D.R.O.). Sometimes, however, it makes more sense to let the spouse keep the pension and, instead, treat the value of a pension as an offset against the value of an asset transferred to another spouse. 


Individual Retirement Accounts (I.R.A.s) can be easily divided, tax-free. Speculative assets cannot be considered, let alone divided. Unless a spouse’s interest in an inheritance is vested, the court will not even listen to evidence of its existence. In other words, that your mother has provided for you in her will, and how much, will not be considered. She may change her will or spend the money. If she has died, however, the amount you will receive upon completion of probate will be considered and may be divided. As a practical matter, that future inheritance is not likely to make much of a difference unless it is large in comparison to the other assets or the circumstances of the case make it important.

 

CHILD SUPPORT

The court must consider the parties’ respective financial abilities and the needs of the child. Child support, like alimony, is subject to modification if financial circumstances substantially change. Unlike alimony, the parties cannot bargain away the court’s power to modify child support.


The age of eighteen is the age of majority in Connecticut. The court cannot enter an order which requires a parent to support or educate the child beyond the age of eighteen years unless a written agreement exists which provides for the payment of support or education beyond the child's eighteenth birthday.


An exception to this law exists for a situation where a child reaches the age of eighteen while still a full-time high school student, in which case the parents are responsible for child support until the child either completes high school or reaches the age of nineteen, whichever occurs first. The court can also order that child support be paid beyond the age of eighteen for children with mental or physical disabilities, which are defined by law.


As a result of federal law, in 1987, the judges of the Connecticut Superior Court adopted child support guidelines. Those guidelines became presumptive October 1, 1989. The current child support guidelines became effective July 1, 2015. As a result, there is a rebuttable presumption that the amount of child support which results from the application of the guidelines is the amount of support to be ordered. Nonetheless, the guidelines are not intended to preclude consideration of other factors. The child support guidelines are to be considered in addition to, and not instead of, the criteria in the child support statutes. 


  • Age
  • Health
  • Station
  • Occupation
  • Earning capacity
  • Amount and sources of income
  • Estate
  • Vocational skills and employability of each of the parents
  • Estate and needs of the child


The guidelines are not to be mechanistically applied, and the amount of support determined under the child support guidelines schedule should not be blindly accepted. You and your spouse can agree, or a judge can find at trial, that application of the child support guidelines would be inequitable or inappropriate under the circumstances of your particular case. The following are criteria for deviating from the child support guidelines:


Parent’s other financial resources, i.e. financial resources that are not included in the definition of net income, but that could be used for the child or for meeting the parent’s needs, such as:

o  Substantial assets

o  Parent’s earning capacity

o  Parental support provided to a minor obligor

o  Recurring gifts of a spouse or domestic partner

o  Employment over 45 hours per week


Extraordinary parental expenses, meaning necessary expenses for the parent that are not permissible deductions from gross income, including:

o  Significant visitation expenses

o  Unreimbursed employment expenses

o  Unreimbursed medical/disability expenses


Coordination of total family support

o  Division of assets and liabilities

o  Provision of alimony

o  Tax planning considerations


Needs of parent’s other dependents

o  Resources available to a qualified child

o  Child care expenses for a qualified child

o  Verified support for non-resident child

o  Significant and essential needs of a spouse

Special circumstances

o  Shared physical custody

o  Extraordinary disparity of parental income, meaning the custodial parent has a higher income than the non-custodial parent

o  Best interests of the child

o  Total award exceeds 55% of the obligor’s net

o  Other equitable factors


The guidelines suggest that alimony be computed after child support. This presents the paradox of a non-custodial parent paying child support based upon a weekly disposable income that does not exist. In other words, the alimony payments will reduce the non-custodial parent's weekly disposable income, but under the guidelines worksheet, child support will be determined as if no alimony were paid. For purposes of the child support guidelines, alimony only becomes a factor in determining each parent's responsibility for payment of a percentage of the unreimbursed medical expenses.


Recent Connecticut Supreme Court cases interpreting the application of the guidelines to combined net weekly incomes above $4,000 have made this a changing and challenging area of family law.

CUSTODY AND VISITATION

The court may assign custody of any minor child to either parent, to the parents jointly, or even to a third party, based upon the best interests of the child. There is a presumption that it is in the best interests of the minor child to be in the custody of a parent over a non-parent; this presumption can be rebutted by a showing that it is detrimental to the child for a parent to have custody. In making custody determinations, consideration will be given to the child's wishes, if the child is of sufficient age and is capable of forming an intelligent preference. There is no automatic age at which the child's wishes will be considered.


In Connecticut, there is a presumption that joint custody is in the best interests of the minor child where both parents agree to an award of joint custody. There is no such presumption where the parents do not agree. Custody has two components: legal custody and physical custody. The person having legal custody is the person having control over decision making. Thus, where the parties have joint legal custody, both parents share in the decision making about major matters, such as education, health, and religion. Day-to-day decisions, however, are normally made by the parent with whom the children reside. If one of the parties has sole legal custody, that parent decides matters of importance concerning the child.

 

Physical custody refers to the child’s residence. Where the parties share joint physical custody, the children actually spend approximately half their time with each parent. This type of arrangement is extremely unusual and requires great cooperation between two mature adults who are willing to live in close proximity to one another and can afford to do so. It requires that the parties’ residences are comparable, that each has extra room for the children, and that each household has extra sets of clothing, toys, books, etc. It requires that each parent trusts the other and that each has respect for the other's parenting.

 

It is more typical for the parents to agree upon a parental responsibility plan that allows for the children to primarily reside with one parent and have a visitation schedule that allows them time with the other parent. If the parents are unable to agree upon a plan, the court has discretion to set the frequency and duration of the visits. Visitation schedules, as outlined in a parental responsibility plan, can be flexible and worded in such a way that the parents have the ability to set a schedule that works for them and the children. A non-specific visitation schedule typically works best for parents who get along relatively well and who are comfortable with more frequent communication to set up appropriate visitation times. A custodial parent should hesitate to enter into such a flexible schedule if he or she has qualms about the non-custodial parent's ability to respect boundaries and limit his or her visits to agreed-upon times.


Likewise, a non-custodial parent should not enter into such a flexible agreement if he or she believes that the custodial parent will not make it easy for him or her to see the children.
 
Visitation schedules can be as detailed as the parties wish them to be. If the parties do not want an open, flexible visitation arrangement, they can outline a visitation schedule in a parenting plan. The visitation schedule can cover times and locations for pickup and drop-off, holiday schedules, and school vacation schedules.
 
Joint legal custody may be awarded without joint physical custody. In other words, although the children may principally reside with one parent, both may be involved in major decisions.


If the parties are unable to agree on custody or a parenting plan, the judge has discretion to make orders on these matters after considering the rights and responsibilities of both parents as well as the best interests of the child. In addition to making orders commensurate with the best interests of the child, the court may consider the following non-exhaustive list of factors:


  • The temperament and developmental needs of the child
  • The capacity and the disposition of the parents to understand and meet the needs of the child
  • Any relevant and material information obtained from the child, including the informed preferences of the child
  • The wishes of the child’s parents as to custody
  • The past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child
  • The willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate
  • Any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute
  • The ability of each parent to be actively involved in the life of the child
  • The child's adjustment to his or her home, school and community environments
  • The length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment.
  • The stability of the child’s existing or proposed residences, or both         
  • The mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child
  • The child’s cultural background
  • The effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child
  • Whether the child or a sibling of the child has been abused or neglected, as defined by law
  • Whether the party satisfactorily completed participation in a parenting education program


The court has the discretion to give as much, or as little, weight to any of these factors as the court deems appropriate.
 
If the parents are unable to arrive at an agreement on the custody arrangements or visitation schedule, the case is considered fully contested. In Connecticut, most contested custody cases are referred to the Regional Family Trial Docket in Middletown, which has its own procedures.


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