Filing and Procedural Basics
(Grounds for Divorce and
Fault, Where to File, Residency Requirement, Filing Costs,
Automatic Restraining Orders, Waiting Period, Case Management
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)
Alimony: Division of Income
(Beware of Formulas,
Modifiability, Waiver of Alimony, Effect of Cohabitation on the
Payment of Alimony)
(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
Children: Child Support
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)
Children: College Education Support Orders
("Post-majority support", College Education, Effective Dates,
The Educational Support Orders Statute, Other Types of
Modification of Orders
(Important Legal Notice, Filing
Status, Alimony, Exemptions and Deductions for Children,
Property Transfers, Sale of Principal Residence, Refunds,
"Innocent Spouse" Protection)
Enforcement of Orders
(Contempt, Penalties, A Warning
about "Self Help")
Filing and Procedural Basics
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
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
Where you must
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.
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
Automatic Restraining Orders
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:
large amounts of funds,
spouse out of the house.
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
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.
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."
NEW: Starting October 1, 2015 there
are new rules concerning waiting periods and documents for simple
non-adversarial divorces. For instance, parties who meet the
requirements for a "Simple Divorce" may file a joint petition and
may proceed to finalize their agreement 30 days after the joint
petition has been filed in court. There are a number of requirements
to qualify, including: the couple has no children, neither owns a
home, assets are less than $35,000, neither party has a traditional
pension. The Court has not yet issued streamlined forms for the new
procedure. To see if you qualify, look at the full text of the Act
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.
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
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."
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
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).
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.
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
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 home that the
parties live in prior to divorce is often referred to as the
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.
and Other Forms of Employment Awards
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
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
Personal injury awards
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.
degree is not marital property which may be divided by the court
in a dissolution of marriage. Simmons v. Simmons, 244 Conn. 158
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.
Bender v. Bender, 258 Conn. 141 (2001), the Supreme Court
ruled that unvested pensions are marital property and can be subject
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
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
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.
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
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. Alimony is an area where
Judges differ and there are no formulas. Whether to issue an alimony
award and its type, amount and duration varies according to the
Judge and the geographical location of the Court.
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
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.
Alimony can also
be made non-modifiable as to amount or duration by agreement of the
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
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.
Cohabitation on the Payment of Alimony
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
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.
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
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.
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.
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.
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
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 signed 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 Guidelines. Child support is calculated using the
Guidelines, Conn. Gen. Stat. §46b-84 (July 1, 2015). 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:
support obligation. The fixed weekly amount of support
calculated under the Guidelines.
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
Maturo v. Maturo, 296 Conn. 80 (2010).
of out-of-pocket health-related expenses not covered by
insurance, including medical, dental, psychological,
orthodontic, and vision expenses.
are shared pro rata according to the parties' combined income
(the "income shares model").
percentage is applied to the sharing of work-related child care
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:
"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
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.
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.)
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.
and 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.
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.
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.
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
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.
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
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.
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
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
that the court make a determination that but for the divorce,
the family would most likely have supported the college
education of the child,
that the court take in consideration all the circumstances of
the parents and the child before making an order,
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),
the order shall terminate on the child's 23rd birthday,
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
does not provide for graduate or post-graduate
applies to cases in which an initial order for
child support is entered after Oct. 1, 2002
Other Types of
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
- 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).
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 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
to IRS PDF File Publication 504 "Divorced or Separated Individuals."
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).
is treated as taxable income for the receiving spouse and is a
deductible expense for the payor spouse.
Link to IRC Section 71.
Deductions for Children.
child exemption is assignable from the primary custodian of the
child if the custodial parent signs a Form 8332 (release of
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."
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.
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.
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.
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:
have filed a joint return;
That as a
result of the gross misstatements of one spouse, there is an
understatement of tax due;
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
Link to IRS Publication 971: Guidelines (Acrobat pdf file).
Enforcement of Orders
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
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