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Susan K. Smith, LLC
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Connecticut Divorce Law Primer


See Also:      Talking to Children About Divorce      Ten Tips Regarding Children   
Connecticut Divorce Resources    Mediation & Collaboration in Connecticut

 

Table of Contents:

  • Jump to: Filing and Procedural Basics
    (Grounds for Divorce and Fault, Where to File, Residency Requirement, Filing Costs, Automatic Restraining Orders, Waiting Period, Case Management Program)
     

  • Jump to: Property: Division of Marital Property
    (Court's Authority to Divide Property, Marital and Separate Property, Marital Residence, Stock Options, Personal Injury Awards, Inheritances and Gifts, Medical Degree, Pension's and 401-K type Contribution Plans, Social Security and Finality of Property Distributions)
     

  • Jump to: Alimony: Division of Income
    (Beware of Formulas, Modifiability, Waiver of Alimony, Effect of Cohabitation on the Payment of Alimony)
     

  • Jump to: Children: Custody
    (Impact of Divorce on Children, Tips for Divorcing Parents, Elements of Legal and Physical Custody, Best Interests of the Child Standard, Parenting Education, Visitation by Grandparents and Other Third Parties)
     

  • Jump to: Children: Child Support
    (
    Connecticut's Child Support Guidelines, Types of Child Support, Definitions of Physical Custody Arrangements, Child Support in Shared Custody Cases, New Spouse or Domestic Partner's Income, Other Reasons to Deviate from the Guidelines, Wage Garnishment for Payment of Support, Earning Capacity)
     

  • Jump to: Children: College Education Support Orders
    ("Post-majority support", College Education, Effective Dates, The Educational Support Orders Statute, Other Types of Post-Majority Support")
     

  • Jump to: Modification of Orders
     

  • Jump to: Tax Aspects
    (Important Legal Notice, Filing Status, Alimony, Exemptions and Deductions for Children, Property Transfers, Sale of Principal Residence, Refunds, "Innocent Spouse" Protection)
     

  • Jump to: Enforcement of Orders
    (Contempt, Penalties, A Warning about "Self Help")

Filing and Procedural Basics

Spouses In Connecticut do not need to prove "grounds" in order to obtain a divorce. The Court will issue a judgment of divorce on the ground that the marriage has "irretrievably broken down." People refer to this as a "no-fault" divorce. Fault can be considered by the court, however, in determining the financial orders (alimony and assignment of property). Link to Article: Marital Misconduct: Does It Count? Fault generally makes a difference in the court's award when the fault is substantial and it substantially contributes to the breakdown of the marriage or the loss of marital assets. Fault plays less of a role in modern divorce than people think; courts and lawyers are more focused on how the finances and other issues can be handled fairly and equitably.

Where you must file: See Court House Guide - a table of Connecticut Judicial Districts, towns served by each, addresses and phone numbers. For additional information, including travel directions and office hours, see the State's judicial website page.

Residency Requirement

One party must have been domiciled continuously in Connecticut for a period of 12 months prior to the date that the Court issues the judgment. You may file for divorce without meeting the 12-month residency requirement as long as you meet the requirement on the date of the divorce. There are other exceptions as well: if the reason for the divorce arose after you and your spouse moved to Connecticut, if you were Connecticut residents before going on duty which took you out of state, or if you were previously a resident of Connecticut and moved back to Connecticut with the intent of making Connecticut your permanent residence.

Costs

Automatic Restraining Orders

The "Automatic Orders" are restraining orders which are entered upon the issuance of a complaint for divorce. The orders are binding upon the plaintiff (person who files for the divorce) at the time the papers are issued and are binding on the defendant spouse at the time the papers are served. The purpose of the automatic orders is to provide a cooling off period to maintain the status quo and to deter the parties from raiding assets or taking other steps to disadvantage the other spouse at the outset of a divorce. The secondary purpose of the automatic orders is to save the parties the expense of filing motions for restraining orders and certain discovery motions at the beginning of each case. For example, the automatic orders restrain (prohibit) the parties from:
 

  • withdrawing large amounts of funds,

  • incurring major expenses,

  • selling or mortgaging property,

  • changing life insurance beneficiaries

  • relocating children

  • locking a spouse out of the house.

  • Important Point: Each spouse has equal access to the marital home  while the divorce is pending unless one of them is residing elsewhere when the divorce papers issue, or unless the judge awards exclusive use of the home to one party while the divorce is pending. If one of the spouses leaves the house either before or during the divorce period, it does not have an impact on their ownership rights, nor does it impact rights to children. It is an urban myth that leaving your home constitutes an abandonment of your financial interest in the home or your right to request that the home be allocated to you in the property division.

The Court has the discretion to modify any of the orders. The parties may also agree to waive any of the orders so long as they do so in writing.

Waiting Period

The waiting period is 90 days from the "Return Date" (official starting date of your case), but additional time is needed for the marshal to make service and for the served papers to be returned to the court prior to the Return Date. Actual time is about 4 months under the best of all circumstances. All deadlines and statutory periods are measured from the "Return Date."

Case Management Program

There is a mandatory Case Management Conference 90 days from the Return Date (the official starting date of the case). If a case is contested, deadlines for completing discovery, financial affidavits, identifying expert witnesses, taking depositions and dates for a Special Masters' Pretrial and a Judicial pretrial will be assigned by the court.

The Special Masters are a pair of experienced family lawyers who will look at the parties' claims and affidavits, and listen to the parties and the lawyers make a presentation of the case. Thereafter, the Masters meet separately to fashion a recommendation for resolving your case. 

If your case is not settled at the Special Masters' Pretrial, the parties continue to prepare their cases and wait for an assignment for a Pretrial with a Family Judge. The Judge will also listen to the parties, review documents and make a recommendation. If still not resolved, the case will be assigned for trial. 

If the parties are in agreement as to the scheduling requirements of the Case Management program, they may file an Agreement and thereby avoid the in-court Conference.

If a case is "Uncontested," the parties may file a Case Management Agreement on the Case Management Date (90 days after the Return Date) and request a date for their for their "Uncontested Hearing."  Under Connecticut's statutory scheme, each divorce must be reviewed and approved by a Judge. The purpose of the Uncontested Hearing is for the parties to present their Financial Affidavits, their Agreement and other required papers. The Judge reviews the papers, may ask some questions, and then (in most cases) accepts the agreement and pronounces the parties divorced. In most instances parties who have mediated their divorces follow this path. Mediation parties often are ready to bring their agreements into Court from 3 to 4 months after they have started. It requires about a year to a year and 1/2, and sometimes longer, for parties to finalize their divorces under the traditional model.

Division of Marital Property

Court's Authority to Divide Property. Connecticut is referred to as an "all property equitable distribution state." In Connecticut, the Court has the power to "assign to either the husband or wife all or any part of the estate of the other." Conn. Gen. Stats. 46b-81. Any property, therefore, regardless of when or how acquired, can be re-distributed by the Court. See, e.g. North v. North, 183 Conn. 35 (1981) (all property, including pre-marital or inherited property, is subject to division by the court). The statute "does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad power [to allocate]." Lopiano v. Lopiano, 247 Conn. 356, 364 (1998).

Considering all the evidence, factors the Court will consider the length of the marriage, the causes of the dissolution or separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each party, and the opportunity of each for future acquisition of capital assets and income. Conn. Gen. Stat. 46b-81, rev. 2013.

The court also considers the contribution of each of the parties in the acquisition, preservation or appreciation of the assets. Conn. Gen. Stat. 46b-81. Homemaking is considered a valuable contribution to the acquisition and appreciation of assets.

Marital and Separate Property. Courts and lawyers talk about "marital property" and "separate" property. Property acquired as a result of the marital joint venture is considered marital, regardless of which spouse earns the income to acquire it and regardless of whose name is on the title to the property. Property acquired prior to the marriage is often, but not always, considered the separate and exclusive property of the person who acquired it. Gifts and inheritances can also be considered separate, as can personal injury settlements. Take note: This is an over-generalized summary. How a court will treat separate property is dependent on all the facts and circumstances. In Connecticut, a judge has the authority and discretion to draw on separate property when allocating assets. Any allocation is based upon all the facts and circumstances existing in the case.

The Marital Residence

The home that the parties live in prior to divorce is often referred to as the Marital Residence. Like all property acquired during the marriage, both parties have an interest in it, regardless of how the property was acquired or is titled. Important Point: Leaving the marital residence prior to or during the divorce does not constitute a legal abandonment of your property interest in the home.

If you are living together at the commencement of the divorce, the Automatic Orders state that "neither party may deny the other party use of the current primary residence ... without order of a judicial authority." Once the case starts, however, either party may file a motion for exclusive use of the home and the judge will make a decision as to who should occupy the home until the case is decided. "The court may also award exclusive use of the family home . . . to either of the parties as is just and equitable without regard to the respective interests of the parties in the property." Conn. Gen. Stats. 46b-83. If the case has not officially started (i.e. it is before the starting day of the case "Return Day") a party can file a motion and an order to show cause to bring the person denying access to the family home into court.

The realities of our current economic condition result in many couples living together during the divorce and, in some instances, after the divorce. Agreements are drafted to create the ground rules of cohabitation and a plan for a future sale or buyout of one party's interest. Because mortgage financing is more difficult, sometimes the only option is to retain joint interest in the home and continue joint liability on the mortgage, with the goal to sell at a future date and divide the net proceeds.

Stock Options and Other Forms of Employment Awards

Vested and unvested stock options can be part of the marital estate and can be distributed by the Court at the time of dissolution. If the options, or other types of executive compensation, were earned based on work performed during the marriage, the options (including unvested options) are mostly treated as marital property.

There are several schemes that lawyers and Judges look to for division of stock options and other forms of executive compensation.  Bornemann v. Bornemann, 245 Conn. 508 (1998). A discussion of how the marital portion ("coverture factor") of unvested options can be calculated is discussed in Wendt v. Wendt, 59 Conn. App. 656 (2000). Compare Hopfer v. Hopfer, 59 Conn. App. 452 (2000) (wife not entitled to portion of unvested options which were granted after the divorce was filed and shortly before the divorce decree was issued).

The general rule is that the marital estate is valued at the time of the issuance of the decree. Exceptions can be found in Wendt and several other cases where the court looked at the circumstances of the marriage and separation and valued certain assets at the time of the separation.

Dividing something that might increase in value in the future is a difficult task. Some valuation methods require the services of an expert economist or financial analyst. Evaluation services can be expensive and sometimes less precise fractional methods may be acceptable to the parties. 

Personal injury awards

Settlements, judgments and workers' compensation payments can be treated as marital property and distributed by the court to either party. Lopiano v. Lopiano, 247 Conn. 356 (1998). The court looks at multiple factors and all the facts and circumstances when deciding whether an award be shared with a spouse. 

Inheritances and Gifts

The court has jurisdiction to allocate Inheritances and gifts that have been received to either party regardless of the source. The court looks at multiple factors when deciding whether an inheritance or gifts should be shared with a spouse. When the money was received, how it was used during the marriage, whether it was kept separate and what it was received for.

The concept of "property" includes a presently existing, enforceable right to receive income in the future. The mere hope or expectation of an inheritance does not make a future inheritance "property" and part of the marital estate to be divided.  The legal term for hope or expectation is "a mere expectancy." For example, in Rubin v. Rubin, 204 Conn. 224, 230-31, 527 A.2d 1184 (1987), the husband's status as a possible residuary beneficiary under revocable trust and will of his mother was a "mere expectancy" and his possible future inheritance should not have been the subject of a contingent order of the court, nor was evidence of the estate plan admissible at trial. The existence of this type of guideline does not limit a couple's ability to come to voluntary agreements about future inheritances as a way to achieve equity in the division of property.

A medical degree is not marital property which may be divided by the court in a dissolution of marriage. Simmons v. Simmons, 244 Conn. 158 (1998).

Pensions and 401K's.

Defined contribution plans (401-K's, i.e.) and defined benefit plans (pensions, i.e.) are considered marital property and are subject to assignment by the Court. See, e.g. Stamp v. Visconti, 51 Conn. App. 84 (1998) (wife's 401K should have been included as a marital asset even though completely funded by her employer). Qualified Domestic Relations Orders ("QDRO's") are typically ordered by the court in connection with the final decree, and when issued, requires the plan administrator to transfer all or part of a plan's interest from one spouse to another. Transfers made by QDRO incident to a divorce are free of taxes or penalties. See Wicki article on QDROs.

In Bender v. Bender, 258 Conn. 141 (2001), the Supreme Court ruled that unvested pensions are marital property and can be subject to division.

Social Security

You can collect social security based upon your divorced spouse's income if (1) you were married for at least 10 years; (2) you have been divorced for two years; and (3) your divorced spouse is eligible to receive benefits. The two-year waiting period does not apply if the divorced spouse was receiving benefits prior to the divorce. There is no impact on the benefits of the spouse against whose account the divorced spouse collects benefits. The right to spousal benefits is lost if you remarry. See Social Security FAQ from the Nolo Press. See Section 216 of the Social Security Act, 42 U.S.C. 416.

Finality of Property Settlements

Property settlements in divorce judgments can only be reopened for a limited time after they entered and only on specific grounds (i.e. fraud or mutual mistake). Once entered, property settlements are very difficult to change. (Orders concerning children can always be modified in the event of a substantial change of circumstances.)

Division of Income: Alimony

Alimony is available to either party but neither party is absolutely entitled to receive alimony.  The basis for awarding alimony is not to punish a guilty spouse but to continue a duty to support the other. 

Beware of formulas!

Judges award alimony based upon all the facts and circumstances of the parties and do not rely upon formulas or rules of thumb. Many of the common formulas that parties hear about have been repudiated by their authors. Considering all the evidence, the court will consider are: the length of the marriage, the causes for the divorce, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties, and the nature of the property awarded to each party by the court. Conn. Gen. Stats. 46b-82 rev. 2013. When children are involved, the court will also consider the desirability of the custodial parent's securing employment.

The options for alimony are: (1) none, (2) $1.00 per year, (3) lump-sum alimony or (4) periodic alimony. If the divorce judgment provides for $1.00 per year, that figure give the court the authority to modify the amount in the future, if the legal requirements for modification are met. "Rehabilitative alimony" is transitional support awarded to one of the spouses during a period of education or training necessary to achieve self-sufficiency or make up for time that the spouse has been withdrawn from the workplace. Lifetime alimony is available in Connecticut, but the Judge ordering a lifetime award must articulate with specificity the basis for the alimony order.

Connecticut courts employ an expansive and flexible definition of income when fashioning financial orders. In addition to the traditional evidence of income, the court may infer income from the lifestyle and personal expenses of the parties. Carasso v. Carasso, 80 Conn. App. 299, 304 (2003), cert. denied (2004). In Brown v. Brown, n. 6, .... Conn. App. .... (Aug. 2, 2011), the husband's derivative cash flow from his various business interests was so complex that the court essentially used a reverse cash method (what was spent) to analyze the income.

Because alimony is deductible to the party who pays it, it is a device to shift the tax burden to the spouse who is likely in a lower tax bracket. Alimony is therefore an important divorce financial planning device.

Modifiability

Alimony can also be made non-modifiable as to amount or duration by agreement of the parties.

If the agreement or decree contains no prohibition precluding modification, the court will have the ability to to modify in the future based upon a substantial change in circumstances. The parties can specify that an order be modifiable under specific circumstances. When a Judge determines how an order should be modified, he must take all the circumstances of the parties to the same extent as if it were the initial order.

Waiver of Alimony

If the parties waive their right to alimony, or if the court's judgment contains no provision for alimony, neither party will be able to go back into court at any time in the future to request that alimony be ordered, even if there is a drastic change in circumstances that was not foreseeable at the time of the divorce. Unless there is some kind of alimony provision, the door will be closed forever.

Effect of Cohabitation on the Payment of Alimony

In DeMaria v. DeMaria, 247 Conn. 715 (1999), the Supreme Court (Katz, J.) ruled that a provision to terminate alimony in the event of a recipient's cohabitation must be interpreted in conjunction with the requirements of Conn. Gen. Stats. Section 46b-86(b). The statute allows the court to modify an alimony order on grounds that the recipient is "living with another person" only if the new living arrangement causes a change of circumstances so as to alter the financial needs of that party. The Supreme Court ruled that a trial court must evaluate the financial impact of the living arrangement regardless of the terms of the separation agreement and decree. A party seeking modification upon the ground of cohabitation must therefore plead and prove "altered financial needs."

Parties now have a alternative in addition to the strict DeMaria approach. If parties wish to fashion their own cohabitation criteria, or to modify a portion of the statutory formula, they may do so in their agreement and the Court is required to enforce their provision under a 2013 amendment to the Statute. 

Child Custody

Impact of Divorce on Children

Under the best of circumstances and in the most amicable of situations, divorce takes its toll on children. In her landmark 25-year study, The Unexpected Legacy of Divorce, researcher Judith Wallerstein disproves the myth that children will "bounce back" after divorce. By re-interviewing subjects she first studied 25 years ago, she found that the ill effects of divorce followed children into adulthood. Wallerstein and her co-authors found that although children do learn to cope with divorce, in adulthood they often feel that their relationships are doomed. They seek to avoid conflict and fear commitment.

A brief but invaluable resources is a one-page list published by the Academy of Matrimonial Lawyers entitled Ten Tips for Divorcing Parents. Print it, put it in your medicine cabinet and read it every day. There are other articles concerning divorce and children you can access using the pull-down menus on this site.

Elements of legal and physical custody

There are two components to custody: legal custody and physical custody. Legal custody relates to decision-making and physical custody has to do with where the child lives. Sole legal custody means that one parent will make all the major non-emergency decisions for the child, including schooling, medical issues, religious education, and the like. Joint legal custody, the most common arrangement, means that the parents make all those decisions jointly. Primary physical custody means that the child resides with one parent primarily and the other parent has co-parenting rights and responsibilities. Shared physical custody means that the child resides with each parent approximately (but not necessarily) half the time. Split physical custody means that children are split up among the parents, i.e. one child to the mother and the other child to the father.

In issuing its orders, the Court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference. The Court may also take into consideration the causes for divorce, if they are relevant to a determination of the best interests of the child. Most often, however, the judges will differentiate and treat differently the issues between the adults and children.

Connecticut has no set age upon which a child can state a preference as to which parent she/he would like to live with. A court will consider a child's preference and take into consideration the child's age and the overall circumstances. The child's preference is not binding upon the court. Parents should never make demands on children to make a choice or talk to them about which parent they would prefer living with. Such conversations are emotionally disturbing to a child. A child's input should be obtained very carefully. It is usually best for such discussions to take place in a safe environment for the child in a session conducted by a professional. Parents should also be aware that children tend to tell the parent asking the questions what that parent wants to hear.

Parenting Education

Participation in a parenting education program is required under Conn. Gen. Stats. 46b-69b. Parenting education involves attending a program of classes by a provider approved by the Court. Brochures and forms are available in the clerk's office of the J.D. (county) courthouses and are also available on line at the Judicial Website. The course costs $125 per parent and consists of six hours of classes at the office of the approved provider. The parties must bring the sign certificates of completion with them to court on the day that they request the court grant the divorce. Most parents report that the classes are very beneficial and are especially helpful if taken at the beginning of the divorce. If you have children, take a minute to read Ten Tips for Divorcing Parents. A court has the authority to order parenting education at anytime if the court deems that it is in the best interests of the children.

Visitation by Grandparents and Other Third Parties

Under Connecticut law, persons with significant ties to  children have visitation rights. Recently, the Connecticut Supreme Court ruled that grandparents and others must demonstrate that they have a "parent-like" relationship with the child and that the child will suffer harm if visitation is denied. This is a heavy burden of proof and it will have a significant impact on the ability of third-parties to obtain visitation orders. Connecticut courts have increasingly made it more difficult for grandparents and others to intervene or obtain visitation rights against

Child Support

Connecticut's Child Support Guidelines. Child support is calculated using the Guidelines, Conn. Gen. Stat. 46b-84 (Aug. 1, 2005). Under the guidelines, the amount of total support is calculated and then each parent's portion of the total support is calculated pro rata according to their respective incomes. The Guidelines provide that judges have the discretion to deviate from the guideline amounts in certain specified situations. For instance, the Court may take into consideration a) the educational needs of the parents; b) the needs of other children supported by the non-custodial parent; c) extraordinary visitation expenses; and d) whether a deviation should be allowed due to shared or split custody situations.

Types of Child Support. The Guidelines provide for several types of child support. The following modes of support are mandatory:

  • The basic support obligation. The fixed weekly amount of support calculated under the Guidelines.

    • It is appropriate to include average bonus and commission income when calculating support, or, to determine a fixed percentage of bonuses that will be paid when bonuses are received if they are not capable of being averaged. Any bonus income agreement should take into account the declining percentage nature of the Guidelines schedule when income increases. Maturo v. Maturo, 296 Conn. 80 (2010).

  • A percentage of out-of-pocket health-related expenses not covered by insurance, including medical, dental, psychological, orthodontic, and vision expenses. These expenses are shared pro rata according to the parties' combined income (the "income shares model").

  • The same percentage is applied to the sharing of work-related child care expenses.

There are additional support types that are not mandatory, but are commonly included in agreements by couples, depending on their incomes and resources and the needs of their children:

  • Agreed-upon "extra-curricular expenses" beyond the scope of child support, for example, lessons, tutoring, sports activities, expensive clothing and accessories for sports, expensive school trips, computer, cell phones, driving lessons, car insurance, senior expenses and college application and trip expenses, and the like.

Definitions:

"Primary Custody" is when one parent is the primary residential parent for the child or children, and the other parent has designated co-parenting rights and responsibilities.

"Shared Custody" is a type of physical custody when each parent has co-parenting and residential responsibility for the children approximately, but not necessarily, 50% of the time. (Joint Custody is a type of legal, not physical, custody and is not synonymous with Shared Custody.)

"Split Custody" is a type of physical custody where each parent is the primary residential parent for a different child. In other words, when the children are split up. (Yes, even though it is not the norm, sometimes there are good reasons to split children up at certain developmental periods or when one child is experiencing a difficult time with issues.

Child Support and Shared Custody

"Shared custody" is one of the deviation criteria recognized by the Child Support Guidelines . The guidelines provide that deviation is warranted only when (1) the arrangement substantially reduces the custodial parent's expenses or substantially increases the non-custodial parent's expenses for the child and (2) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation. "Shared physical custody" is defined as a situation where the non-custodial parent exercises care and control of the child "for periods substantially in excess of a normal visitation schedule." This is usually deemed to be one-half or close to one-half of the time.

A common misunderstanding is that parents do not have to pay child support in shared parenting situations. Shared custody means that both parents share all parenting responsibilities, including financial responsibilities. Each parent is therefore required to provide a portion of all the housing, food, clothing, education, medical, and social expenses of the child. This can be accomplished, for example, by setting out specifically the terms of the shared financial responsibilities in the Judgment (decree) or by pegging one parent's share of the expenses to the Child Support Guidelines. The Guidelines allow a discount on fixed child support when in shared custody cases if the financial situation of the parents' warrants a discount. Whether the shared financial arrangement between the parties is flexible or fixed will depend on the particular circumstances of the parties and how well they work together on parenting and financial issues.

New Spouse or Domestic Partner's Income.

The guidelines provide that the court cannot consider a new partner's income, but can consider a new spouse's contributions or gifts as a deviation criteria, "if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts." The authors of the Guidelines intended to incorporate the holding of the Supreme Court's March 1998 decision in Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998). In Unkelbach, the court ruled that a spouse or domestic partner's contributions toward living expenses could be taken into consideration by the court. Under the Unkelbach approach, the domestic partner's income is therefore not included in the calculations, but the partner's contributions to living expenses would be treated as gifts.

Other Reasons to Deviate from the Guidelines. The court must articulate a specific basis for deviation based upon the guidelines; for example, other assets available to a parent, earning capacity, extraordinary expenses for the care of a child, extraordinary parental expenses (significant visitation, job or medical medical expenses), needs of a parents other dependents, coordination of total family support (division of assets, alimony and tax planning considerations). 

Wage Execution/Garnishment

Conn. Gen. Stats. 52-362(b) makes wage executions (an automatic deduction from wages by the person's employer) mandatory in every case in which the court makes financial orders. The provision may be waived if the parties agree in writing that the court may order a "contingent" wage execution. With a contingent order, the person receiving support can get a wage execution if the person paying support fails to pay or to make payments on time.

Earning Capacity

In making a determination as to alimony and child support, a court has the discretion to make its orders based upon the "earning capacity" as opposed to the actual earnings of a party. This prevents persons involved in divorce or child support actions from becoming deliberately unemployed or  under-employed in order to affect the outcome of the court decision.

Post Majority Support and College Education

There was a time when State courts did not have the authority to make orders for support for children who reached their age of majority which is 18 in Connecticut. Because parents were making "post majority" agreements, the legislature granted Connecticut family the authority to enforce or modify any post-majority agreements that were contained in written settlement agreements. In 2002, the legislature gave Connecticut judges the authority to make post-majority "Education Support Orders" with some limitations. The key limitations is that Judges are limited to making orders based on the "UConn Equivalency" (see below) and that parents are allowed to waive application of the Education Support Order Statute.

Prior to October 1, 2002: The court has no authority to order child support past the age of 19. If the parties provide for post-majority support (i.e. college expenses) in their written separation agreement, the court will enforce that agreement. For orders entered after October 1, 2001, Judges have the authority to modify post-majority support agreements like any other order of child support.

On or After October 1, 2002: The new law, "The Educational Support Order Statute,"  gives Judges the authority to order that parents pay as child support, college education costs. The statute, Conn. Gen. Stats. 46b-56c, would apply to orders entered by the court on or after October 1. The Bill

  • requires that the court make a determination that but for the divorce, the family would most likely have supported the college education of the child,
  • requires that the court take in consideration all the circumstances of the parents and the child before making an order,
  • requires that the amount to be paid is capped at the "UConn equivalency"; namely, tuition, room and board and costs of a Connecticut resident at the University of Connecticut (the child is not required to attend UConn but the order cannot exceed the amount it would cost to go to UConn),
  • requires the order shall terminate on the child's 23rd birthday,
  • requires that the child meet requirements in terms of choice of study, academic standing and cooperation with parents,
  • allows for payments to be made directly to the school, parent, or child
  • allows for modification
  • provides that the child does not have the right to sue his parents for educational support based upon the statute,
  • does not provide for graduate or post-graduate degrees
  • applies to cases in which an initial order for child support is entered after Oct. 1, 2002

Other Types of Post-Majority Support

Given the economic realities for teenagers and college students and their parents, it is becoming more common for Agreements submitted in court to contain other types of support for older and adult children. In practice, adult children are commonly receiving partial support (of more) from their parents. These agreements are designed to allow parents to know that the burden will be shared in the event that, when despite best efforts to support themselves, adult children need assistance. Parents can design a fractional arrangement and limitations that suit them as to any type of post-majority support.

  • Agreements for parents to share ancillary expenses for college, for example: car, car insurance, computer, cell phone, health insurance when a college plan is inadequate, education-related travel, and the like.
  • Agreements for parents to contribute to graduate school tuition or living expenses.
  • Agreements for parents to share contributions to living expenses for adult boomerang children who need help living on their own, or need to move in with a parent.

Modification of Agreements and Orders

The Court always retains jurisdiction over issues relating to the custody and well-being of minor children. Any orders relating to child support can be modified upon a showing of a "substantial change in circumstances." Conn. Gen. Stat. 46b-86. When reviewing child support orders, the courts use a benchmark of a 15% deviation from the guidelines to determine whether a change in circumstances qualifies as "substantial".

There is no requirement that the parties show a substantial change in circumstances to modify custody. The only requirements is that the court "be guided by the best interests of the child." Conn. Gen. Stats. 46b-56(b).

As to alimony, the parties can restrict the right of the Court to awards by making them "non-modifiable" as to either amount or duration of payments (or both).  Kelly v. Kelly, 54 Conn. App. 50, 57 (1999), Balaska v. Balaska, .... Conn. App. .... (July 25, 2011).

Once marital property is distributed, it is very difficult to modify an agreement or order and obtain a redistribution. Property settlements between parties are usually final as of the date of the divorce and can only be revisited if there are specific special circumstances (i.e. fraud, duress, mutual mistake) that are brought to the court's attention within a specific time period.

Tax Considerations

 

Important Note: Tax issues are complex and difficult to generalize. I.R.S. regulations change frequently. The information in this article is provided as a starting point. Please read the linked publications to make sure that the general statements apply to your tax situation. Please discuss the tax impact of your divorce issues with a tax professional. 

 Link to IRS PDF File Publication 504 "Divorced or Separated Individuals."

 Filing Status:

Unless the parties are married on the last day of the tax year (i.e. December 31st), they are not eligible to file a joint tax return for that tax year. If the parties are married on the last day of the tax year, they are eligible to file married (jointly) or married (singly).

Alimony is treated as taxable income for the receiving spouse and is a deductible expense for the payor spouse. Link to IRC Section 71.

Exemptions and Deductions for Children

The dependent child exemption is assignable from the primary custodian of the child if the custodial parent signs a Form 8332 (release of exemption). Link to IRS Publication 501: Dependent Child Exemption.  The child care (i.e. day care) credit is not usually assignable and must stay with the parent with whom the child primarily resides. A separate tax credit is the Child Tax Credit, which can be claimed by anyone who is entitled to "claim a child as a dependent."

Property Transfers. Transfers of property (including the marital residence) from one spouse to the other "incident to a divorce" are generally non-taxable events. Spousal transfers incident to divorce are treated like gifts so the spouse receiving the property receives the "adjusted basis" (baseline valuation) of the spouse transferring the property for the purpose of figuring gains and losses in the future. IRC Section 1041.  Link to IRS Publication 504: Transfers Between Spouses.

Sale of Principal Residence. Pursuant to the Tax Reform Act of 1997, there is a $250,000 exclusion of capital gain per spouse ($500,000 per couple) on a principal residence sold after May 6, 1997 provided that you resided for the residence for 2 out of the last 5 years (or less if you rolled in the gain from a prior principal residence). This is not a "one time" exclusion as was provided under prior law; you may apply the exclusion to one home sale in a two-year time period.  Link to IRS Publication 523 Sale of Your Home.

Refunds. Spouses have individual, not joint, interest in tax refunds. Unless otherwise agreed to, the overpayment is allocated according to the amount of tax paid by each spouse. IRS Revenue Ruling 74-611.

"Innocent Spouse" rules allow spouses to apply to the IRS to disengage from joint tax returns obtain protection from joint liability (civil and criminal) if they suspect the other spouse  has not been honest in filing in joint returns. The Innocent Spouse Rule of the IRS Restructuring and Revision Act of 1998 provides that where:
 

  • The parties have filed a joint return;
  • That as a result of the gross misstatements of one spouse, there is an understatement of tax due;
  • The innocent spouse can demonstrate that he or she signed the return not knowing about the understatement;
  • It would be inequitable to hold the innocent spouse liable for the deficiency taking all the circumstances into consideration.

There are more detailed explanations as to what types of misrepresentations and what constitutes an understatement contained in the rules. There are time limitations for filing with the IRS for innocent spouse protection. Link to IRS Publication 971: Guidelines (Acrobat pdf file).

Enforcement of Orders

Contempt. A party can be found to be "in contempt" for willfully failing to comply with an order of the court. A Motion for Contempt is the mechanism by which a party raises the other party's non-compliance to the court and the mechanism by which the family court enforces its orders. A party found to be in contempt can be required to pay the other party's attorneys' fees. On occasion, parties are jailed for contempt when a party willfully fails to comply with a court order.   

"Self Help" In Eldridge v. Eldridge, 244 Conn. 523 (1998) the Supreme Court (Justice Katz) demonstrated the degree to which it disfavors "self help". In Eldridge the husband discovered years after the fact that his wife was earning income that entitled him to an offset from his alimony payments. Figuring that he had actually overpaid his wife, he stopped making payments. His wife filed a motion for contempt. Even though he was entitled to a $10,000 credit, the Supreme Court found that it was appropriate to find him in contempt because he did not receive an order from the court before reducing or suspending payments. In Sablosky v. Sablosky, 258 Conn. 8 (2001), the Supreme Court ruled that a party who fails to comply with a judgment, even though a provision may be deemed ambiguous, can be held in contempt of court.

 

 

 

Copyright Susan K. Smith, All Rights Reserved.