a. The Writ, Summons, and Complaint
The papers which begin a dissolution of marriage or legal separation action are called a Writ, Summons and Complaint. The Writ instructs a Marshal to serve the papers on the other spouse.
The Complaint states the following information:
- when and where you were married;
- the wife’s maiden name and her name at the time of the marriage;
- that one spouse has lived in Connecticut for at least one year before the date of the Complaint, or will live in Connecticut for at least one year before the date of the final decree;
- the names and dates of birth of any minor children;
- whether or not either spouse is on public assistance;
- that your marriage has broken down irretrievably (or, in extremely rare cases, a “fault” ground);
- where there are minor children whether his/her education expenses would have been paid had the marriage remained intact.
The Complaint also states, generally, the type of relief being sought in the case, which may include the following:
- A dissolution of marriage or legal separation;
- sole custody, joint custody, or visitation rights;
- child support;
- property division;
- attorney’s fees;
- restoration of the wife’s maiden or former name;
- such other relief as the court deems fair and equitable.
The Complaint may be amended during the case to add or delete the type of relief requested. The spouse who brings the action is called the “Plaintiff.” The other spouse, the one who is served the papers, is called the “Defendant.”
The papers will be served by a Marshal. The Marshal does not need to wear a uniform. If requested, the Marshal will attempt to avoid inconveniencing or embarrassing the spouse being served, and will serve the papers without any ceremony. Generally, the papers are served by being handed by the Marshal to the spouse. The papers can also be served by being left at the spouse’s usual place of abode, but that method sometimes results in disputes where the spouse claims to have not received the papers.
The Summons advises the served spouse to obtain an attorney and to file an appearance form on or before a certain day which is called the “return date” or the “appearance date.” The return date or appearance date must be a Tuesday and must be at least twelve days after the Marshal serves the papers. No one, however, actually appears in court on the return date or the appearance date. The spouse, or the spouse’s attorney, should complete and file a form called an “appearance” with the court so that all future notices, motions, and pleadings concerning the case will be sent to the spouse or the spouse’s attorney. If not, the case may proceed without further notice.
Who starts the action, i.e., who is the Plaintiff, is sometimes of tactical importance. At trial, the Plaintiffs case proceeds first. At any pre-trial settlement conference with a judge or family relations counselor, the Plaintiffs attorney states the Plaintiffs position first. First impressions are just as important in court as they are in day-to-day situations. In some areas, the Plaintiff can pick between two courthouses in two different towns or cities, which will have different judges presiding.
Sometimes, however, being the Plaintiff is not a good idea. If a spouse who is significantly at fault in the breakup of the marriage is the Plaintiff, the impact of the fault may be greater than if that spouse is the Defendant.
You should ask your lawyer whether it will help or hurt the case if you are the Plaintiff and whether you should wait for your spouse to begin the case. There are some ways a spouse can be prodded into starting a case. They include separating or imposing some financial restrictions. It is, however, a bad idea to use violence, theft of personal property, a refusal to furnish reasonable support, or a denial of access to the children to force your spouse into starting a divorce case.
b. The Notice of Lis Pendens on Real Estate
If a notice of lis pendens is filed against a spouse’s interest in real estate, creditors of that spouse and anyone to whom he or she attempts to convey the real estate will be on notice of the dissolution case. As a practical matter, once a lis pendens is filed, no reputable person or institution will buy your spouse’s interest in the property or loan money secured by a mortgage. If, at the end of the case, the real estate is awarded to the other spouse, it will be free from any claim of the spouse’s creditors or transferees whose claim against the real estate was filed after the lis pendens. A lis pendens may be filed against any real property that a spouse wants the court to award.
A lis pendens may be filed without a court order. A spouse whose property has been subjected to a lis pendens has the right to seek its discharge.
c. Attachment of Real Estate
In some cases, it is possible to obtain an attachment of your spouse’s interest in real estate. Once recorded, the attachment will not completely defeat the rights of parties who subsequently make a claim against the real estate. Instead, any judgment you obtain against your spouse which requires him or her to pay you money will be satisfied from the property before the claims of persons whose attachments were recorded after yours.
Unlike a lis pendens, an attachment can only be used to secure a claim of money damages. The lis pendens only protects a claim of ownership. An attachment requires that you sign an affidavit and it requires a court order.
d. Automatic Orders
In Connecticut, Automatic Orders bind both parties in a dissolution of marriage. For the plaintiff, the Automatic Orders go into effect once the complaint is signed. The Automatic Orders are attached to the Writ, Summons, and Complaint and go into effect for the defendant when he or she is served. These orders remain in effect during the entirety of the case, unless you and your spouse agree in writing or obtain a court order to the contrary. These orders restrain the disposition of assets during the case, meaning that the parties cannot sell, transfer, encumber, conceal, assign, or remove any assets held by the parties, either jointly or individually, during the case absent agreement between the parties or a court order to the contrary. The Automatic Orders also restrain the incurring of unreasonable debts, including further borrowing against a home equity line or incurring credit card debt. The Automatic Orders, however, do not prevent you and your spouse from paying usual and customary household expenses or from paying for reasonable attorney’s fees incurred for the dissolution action.
Under the Automatic Orders, neither parent may permanently remove the minor child from Connecticut without the written consent of the other parent or a judicial order permitting the parent to do so.
The Automatic Orders also provide that the parties shall not remove each other or their children of the marriage from the existing medical, dental, and hospital insurance. These existing insurance policies are to be maintained throughout the case. Life insurance beneficiaries cannot be changed during the pendency of the case and the existing life, automobile, homeowners, and renters insurance policies should be maintained in full force and effect during the case as well.
If you and your spouse are living together when the Automatic Orders go into effect, neither one of you may prevent the other from using your primary residence, whether it is rented or owned. In other words, neither you nor your spouse can change the locks on the home to prevent the other spouse from entering once the case begins. If your spouse refuses to leave the marital home, you also have the option of filing a motion asking that you have exclusive use of the home during the pendency of the case.
e. Parenting Education
The Automatic Orders require that the parties with minor children attend a parenting education program within sixty days of the return day. This program is meant to educate parents on how to handle the divorce in a healthy way for the children. The course should help you to recognize any warning signs indicating that your children are having trouble adjusting to the divorce. Of course, a class cannot make a person a good parent if he or she is unable or unwilling to be one, but the parenting education program can give a parent who wants to learn the tools to help him or her navigate the divorce with the children. The parenting education program is available at multiple locations throughout the state.
f. Protection Against Violence or Threats
If your spouse is violent or threatens violence to you or the children, the family or criminal court may order your spouse removed from the family home. If violence occurs you should do the following:
- Protect yourself. If necessary, run away or drive away.
- Call the police as soon as possible. When the police arrive, as calmly as possible describe what happened. If you are injured, insist that your spouse be arrested.
- If you are injured, get medical attention. Go to the emergency room if your physician is not available to see you.
Photograph any cuts, bruises, abrasions. Even if the police or personnel at the hospital photograph you, take your own pictures.
- As soon as you have done all the above, write out, with as much detail as possible, what happened. Try to reconstruct what you said and what your spouse said, and who did what to whom.
If you or your spouse was arrested, the criminal court will take action on the same day or on the next business day. The criminal court may enter a protective order which can include evicting the violent spouse from the home, or requiring that spouse to go to counseling services. Later in the case the criminal court, after a guilty plea or a trial resulting in a guilty verdict, can incarcerate or fine the violent spouse.
Call your lawyer. You and your lawyer should discuss whether the circumstances warrant going to the family court to obtain an order to evict your spouse from the home. That order can be obtained quickly and, in some circumstances, without notice to the violent spouse.
Sometimes a spouse will make a false complaint to “make a record” or to use the criminal charges which ensue as a bargaining chip in the divorce. If your spouse calls the police, whether or not you have been violent, you should not admit any guilt. Insist on the right to speak to your lawyer before giving any information to the police. If you have been arrested, when the matter comes before the criminal court it is likely that you and your spouse will each be interviewed by a family services counselor. Speak with your lawyer first and get advice about how to deal with that situation.
If arrested, you should hire a lawyer to represent you. The criminal proceeding can adversely affect the divorce. It can cause you to be thrown out of the marital home. It can result in incarceration or a fine or both. It can leave you with a criminal record that may haunt you for the rest of your life.
g. Temporary or Pendente Lite Hearings and Orders
At the time the Marshal serves the Writ, Summons and Complaint which starts the divorce or legal separation, motions which seek temporary orders for alimony, support, custody or visitation, exclusive use of the family home, counsel fees or other relief may also be served.
Those motions do not have to be served at the beginning of the case. They can be filed with the court at any time. Motions which request temporary orders are also called pendente lite motions.
Temporary or pendente lite motions may not deal with matters more appropriate for the end of the case. Thus, the court will not transfer title to property, or order property sold as a temporary order. Nor will the court dissolve the marriage or legally separate you as a temporary order.
Orders which issue as a result of temporary or pendente lite motions are only effective until the court dissolves your marriage or legally separates you. If the motions are to result in orders, an actual appearance in court is required by at least one of the attorneys.
If you and your spouse are existing peacefully and financial and visitation matters are working relatively well, there is usually no need to file motions which seek temporary orders, or to go to court for temporary orders. Tax considerations, however, may indicate that a temporary agreement should be drafted or a temporary order obtained. Alimony is not tax deductible unless it is paid pursuant to a written agreement or a court order.
Some people think that if a motion is filed, a court hearing is necessary. That is not true. Often, simply filing a motion will cause the other spouse to behave reasonably and thereby make a court hearing unnecessary.
If a motion is filed, and the issues raised are financial, and you have not previously submitted financial information to your lawyer, you will have to act quickly. Court rules require that a Financial Affidavit be filed with the court by the party who files a motion for alimony, support, or counsel fees at least five (5) days prior to the date of the hearing on the motion. The other party should file a Financial Affidavit at least five (5) days before the hearing as well, but the court has the authority to enter pendente lite or permanent orders in the absence of the opposing party’s sworn Financial Affidavit. Most judges will not permit the moving party to go forward with a motion if a Financial Affidavit has not been filed before the hearing day.
The courts of each judicial district hear pendente lite motions on one or two days each week. Those days vary from courthouse to courthouse. The following procedures generally occur in court on pendente lite hearing days:
Court will convene at 9:30 a.m.
Those cases which were marked “ready” are assigned to a judge. Typically, each judge will be assigned ten to twenty-five or more cases on a given pendente lite hearing day. As a result, sometimes a case will not be heard on the initial date assigned. In some courts, the hearing may take place within days. In other courts, the hearing may be weeks or even months later.
Some judges request, and others require that, before the hearing proceeds, the attorneys discuss each case with a family relations counselor and try to reach a negotiated settlement. Frequently, the attorneys will negotiate between themselves before the court date or in court.
If an agreement is reached, it may be presented to the court and orders will enter. Sometimes the attorneys and parties may agree without presenting the agreement to the court if there is a good reason for not disclosing the agreement.
If an agreement is not reached, testimony may be presented to the court. The recommendation of the family relations counselor will not be disclosed to the court unless both parties agree that it be disclosed. Sometimes the court hearing will consist only of arguments of the attorneys. If, however, either lawyer wants to present testimony or the court wants to hear it, there will be an evidentiary hearing.
If the motions have to do with alimony, support or counsel fees, the testimony will concern financial matters. Where a spouse is living with another man or woman, their financial arrangements may also be explored. If exclusive possession of the home is at issue, the testimony will also concern violence, threats of violence, and other matters relating to how the spouses are getting along. If custody or visitation is at issue, matters relating to the children’s best interest will be explored. Matters concerning fault, including adultery, are not to be brought out at the pendente lite hearing unless they relate to the children’s best interest and temporary custody or visitation is an issue.
Courts, typically, act only on motions which have been filed. If your spouse’s lawyer has filed a motion for child support, the judge will probably not listen to your concerns about visitation unless you or your lawyer has filed a motion for visitation.
At the end of the hearing the judge may decide the motion immediately or may “take the papers” which means a decision will be written later and a copy of the decision will be sent to the attorneys. Typically pendente lite orders are made immediately upon conclusion of the hearing or within a few days of the court hearing. Sometimes, however, the judge does not decide for many weeks, or even months.
Although sometimes pendente lite court hearings are necessary, they are, in many cases, best avoided. Pendente lite orders typically last only several months. The expense of having two attorneys prepare for hearing and spend a day, or more, in court will often exceed the amount that is in dispute. Moreover, the judge who hears the motion will have limited ability to understand all the facts and issues of the matter, given the limited time available for each case. The spouses and their lawyers can better address all issues carefully because they are not constrained by having to resolve many cases on the same day.
In short, you, your spouse, and your lawyers should make every effort to agree to reasonable temporary arrangements. Few cases should require contested temporary hearings.
h. Case Management
Approximately 90 days after the return date for your case, your case will be scheduled for a case management date. On this date, a case management agreement must be signed by the lawyers for both spouses. The case management agreement is a court form that provides a schedule for the progression of the case. The parties must agree on dates that they will exchange Financial Affidavits, exchange written requests for documents, provide written responses and discovery to one another, appraise any real property or other assets (such as businesses or pensions) owned by one or both of the spouses, and complete depositions, if depositions are necessary. If you cannot agree on dates, then both parties and their lawyers must appear in court on the case management date and have a judge decide any disputes.
On or before the case management date you and your spouse should negotiate and sign a parenting plan which may be temporary or permanent. If a signed parenting agreement is not filed, you and your spouse will have to appear in court on the case management date. At that time, the court may appoint a guardian or attorney for the minor child or children and may order a custody study be undertaken by a family relations counselor or by a private psychiatrist or psychologist.
On the case management agreement form, you and your spouse must specify whether you are seeking a divorce, a dissolution of a civil union, or a legal separation. There is also a place on the form for you to check off what type of case you have:
Uncontested: You and your spouse have come to an agreement on all custody and financial issues and are ready to get divorced. If your case is uncontested, you and your spouse may appear in court on your case management date with your paperwork, including signed financial affidavits, and get divorced. Or, you can submit the signed case management agreement and required forms on the case management date and get divorced on another day.
Limited contested: There are disputes regarding spousal or child support or the division of real or personal property. In limited contested cases, the parties must submit the signed case management agreement and sworn Financial Affidavits on or before the case management date. If you and your spouse have children, a parenting responsibility plan signed by both of you must also be filed with the court. If all of these forms are submitted on or before the case management date, the parties and their attorneys do not have to appear in court on the date.
Contested: Child custody, visitation rights, paternity, or the grounds for the action are disputed, and financial support or the division of real or personal property may be disputed as well. You and your spouse must still prepare a signed case management agreement and sworn Financial Affidavits to be submitted to the court. The parties and their attorneys, however, must still appear in court on the case management date for orders from the judge regarding a custody evaluation, appointment of attorneys or guardians ad litem for the children, and conflict resolution.
The defendant has not appeared: If your spouse does not file an appearance as a self-represented individual or does not hire an attorney who will file an appearance in the case, you or your attorney must still submit the case management agreement on the case management date.
The case management agreement form also has a space for the parties to select the type of settlement conference they will participate in prior to trial. You and your spouse have the option of meeting with your attorneys for a “four way” settlement meeting. A four way meeting allows you and your spouse to meet face to face with your lawyers to discuss and attempt to resolve the outstanding issues in the case. These types of meetings are typically only helpful, however, if both parties are willing to meet in the same room and work toward a mutually acceptable agreement. If one or both of you is entrenched in a position, any type of settlement conference, but in particular a settlement conference in which there is no neutral third party to evaluate the case, will not work.
Or, you and your spouse can participate in the Special Masters program offered by the court. Two experienced divorce lawyers, typically a male and a female, will meet in the courthouse with the attorneys for both parties, and sometimes with the parties as well, in order to mediate the remaining disputes and help the parties reach an agreement. The meeting usually lasts an hour. Each attorney prepares proposed orders, outlining his or her proposal for alimony and child support (if any), asset division, and final custody orders, as well as updated Financial Affidavits and other financial documents. These documents are exchanged by the attorneys before the date selected for the Special Masters program, so that each person is aware of the other’s bargaining position. On the Special Masters date, the Special Masters will listen to both sides present their arguments regarding the facts of the case and the desired outcome and they will look at the documents submitted. They will then make a recommendation for how the case should settle. The parties have the option of accepting the recommendation made by the Special Masters, accepting parts of the recommendation, or rejecting the recommendation in its entirety.
A settlement conference with a family relations counselor in the courthouse is an available option as well. The court can also schedule you for a judicial pre-trial, where a judge meets with the attorneys, and sometimes the parties, and provides a non-binding recommendation for how the case should settle after hearing the positions of both spouses.
After you and your spouse have made an attempt to settle your case using one of the above methods, you will then be assigned trial dates by the court. During the trial, the recommendations made during settlement conferences will not be disclosed to the judge hearing your case. The settlement conferences are intended to provide the parties with an opportunity for good faith settlement discussions in an effort to avoid trial.