The general information in this series of questions and answers will help you understand the court process and answer some questions you may have.
Connecticut statutes employ the legal term “dissolution of marriage” to mean divorce. While the two terms may be used interchangeably in informal discussions, legal documents will use “dissolution of marriage.”
The only practical effect of Connecticut’s “no-fault” dissolution of marriage law is that it is now only necessary to prove that a marriage has broken down irretrievably to obtain a divorce. However, other causes for the breakdown of the marriage, such as intolerable cruelty, habitual intemperance, or adultery, may be brought to the court’s attention and may be considered by the court in determining the award of property and alimony, if any.
A dissolution of marriage action is started by one party filing with the court legal papers called a Summons and Complaint. The party filing is called the “plaintiff” and the other party the “defendant.” Before filing the summons and complaint with the court, the plaintiff has these papers served on the defendant by the sheriff.
The summons tells the defendant that he or she is being sued for dissolution of marriage. The summons also states a “return date” by which the defendant must file with the court an “appearance” which is a legal paper stating the name of the defendant’s attorney or whether the defendant will act as his or her own attorney. It is not necessary for anyone to appear in court on the return date.
The complaint states the date and place of the marriage, the number of minor children that the parties have, the reason for the dissolution, and whether either of the parties have received state support. The complaint also states the relief sought by the plaintiff, such as alimony, child support, custody and counsel fees.
Connecticut law provides that ninety days must pass after the return date before a dissolution action can proceed to a final hearing. Because the courts must process a great number of dissolution cases, about the earliest a case can be heard is four months from the date of the sheriff’s service.
There are many other factors that may delay a case, especially when the parties cannot reach a settlement and it is necessary to have the court decide the custody of minor children, the division of property, the amount of support or alimony, and other matters. Disputed cases can take a year or longer to finalize.
At the time of the final hearing, and at any other time in which there is a court hearing regarding financial orders, the parties must submit to the court financial statements sworn to and signed under oath. At the beginning of a case, your attorney will give you a financial affidavit form and ask you to complete it. You will also be asked to supply your attorney with pay stubs, copies of income tax returns, and any other financial documentation you may have. Your attorney will then go over your figures with you in order to have an accurate financial affidavit in your file and to submit to the Court. Your spouse’s attorney will have the opportunity to cross-examine you about your financial affidavit. He/she may subpoena your employment, banking and other financial records and compare this information with what you have stated on the affidavit.
You will be required to sign your financial affidavit under oath and swear as follows: “I hereby certify that the foregoing statement is accurate to the best of my knowledge and that I can, if requested, submit documentation for all assets, liabilities, and expenses listed above.”
When a lawsuit for dissolution of marriage is filed, certain automatic orders go into effect. Neither party can sell, mortgage or give away property. Neither party can go into unreasonable debt. If there are children, each party must have access to the children, unless the Court orders otherwise. Beneficiaries and named insured cannot be removed from insurance policies (health, car, life, etc) and policies can’t be terminated. These orders are effective for the Plaintiff upon the attorney signing the Complaint and for the Defendant when he/she is served. Failure to abide by these orders can lead to a finding of contempt of Court.
After the lawsuit is started, either party may ask the court for orders which, if entered, will be in effect until the final hearing. These temporary orders are often called by their Latin name, “pendente lite,” which means “during the litigation.”
A party must file a motion with the court stating what pendente lite orders are sought. A hearing will then be scheduled at which the parties must appear. The court will rule on the motion after hearing argument and perhaps testimony. However, the Court will require all parties to meet with a Family Services officer prior to a hearing. Family Service officers will be present in the Courthouse on the day of your Court appearance.
The most common pendente lite orders are for custody of the children, alimony and/or support, and exclusive possession of the home. These orders may be modified before the final hearing. Failure to follow these orders will make a party liable to be charged with contempt of court.
Dissolution of marriage cases can be set down for a final hearing on any one of three lists. Cases where the parties have reached a settlement go on the uncontested list and the hearing of reporting the agreement to the court for approval. Cases where the parties dispute custody of the children are set down on the contested list. If custody is not an issue but the parties dispute the division of their assets or the amount of alimony or support, cases are heard on the limited contested list. However, in order for a case to be scheduled for trial, the Court requires that parties meet with Special Masters (see below) to attempt to resolve their dispute. If the parties settle, their agreement will be submitted to the court for approval. If the parties cannot settle, the court will set a trial date, which may be several weeks or months later, depending on the estimated length of the trial and the availability of court time. Prior to trial, the case will be referred to a Judge or State Trial Referee who also will attempt to assist the parties in resolving their differences before the case is tried.
Special Masters are attorneys appointed by the Court to assist parties in resolving their monetary and property disputes. Special Masters have experience in family law and practice in the Courthouse where the matter is to be tried. Special Masters donate their time to the Court in order to alleviate the backlog of cases.
A Special Masters hearing take place at the Courthouse before two attorneys (a male and a female) who are designated as Special Masters. The parties’ lawyers prepare Financial Affidavits, Proposed Orders and other documentation for the hearing. Each party’s attorney makes a presentation of approximately 10 minutes. The Special Masters may then ask the attorneys questions about the case. They may also ask the Plaintiff and the Defendant if they wish to comment. The Special Masters will then ask the parties and their attorneys to leave while they discuss the case and determine their recommendation for settlement. Everybody will then come back into the hearing room and the Special Masters will make their recommendation. The Specials Masters recommendation will be based upon what they believe a judge would decide after hearing all the information presented at the Special Masters hearing.
The court considers the following in determining the division of the parties’ assets: the length of the marriage, the causes for the dissolution of the marriage, legal separation or annulment, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
If the parties are unable to decide among themselves the custody and visitation plans for their minor children, the Court will make the decision for them after a trial. Cases that involve disputes over custody of children are the most difficult for the client to live through and for the attorney to try. The court usually will assign a family relations officer and sometimes an attorney for the minor child to investigate the case and to offer recommendations. There may also be reports submitted by psychiatrists, psychologists or social workers, either ordered by the court or hired by the parties.
The court, based on what is believed to be the best interest of the child, will usually enter orders of sole custody or joint custody with the children’s principal residence with one of the parties. The non-custodial parent is usually granted rights of visitation, that depending on the circumstances, may be either specific or general.
Aside from the emotional and financial costs of a custody trial, no one knows the particular dynamics of children and the family better than the parties. It is therefore so much better for the parties to reach an agreement about their children than to have a person who has never lived with the children or the parties make their decision for them.
The court has the power to order one spouse to make payments to the other. Alimony is paid to maintain the other spouse and can be paid in one lump sum or periodically.
The amount of Child Support is determined by the use of the Child Support and Arrearage Guidelines set by the Commission for Child Support Guidelines of the State of Connecticut. Unallocated family support is paid periodically to the spouse who has custody to maintain the spouse and the children.
There are important federal income tax considerations involved in regard to these payments. The spouse making alimony or unallocated family support payments may deduct these from taxable income, while the recipient of alimony or unallocated family support must declare these payments as income. Child support is not deductible by the payor nor taxable to the recipient.
The Connecticut Legislature has mandated that parents of children going through the dissolution of marriage process take part in a “Parenting Education Program”. The purpose of this program is not to teach you how to parent, but to teach you how to be a “divorced parent”. In other words, the program will teach you the ramifications to your children of your divorce, especially if you decide to disparage and castigate the other parent for real or imagined wrongs in front of your children. The program will also teach you how your children may react to your decision to divorce, including how they may attempt to pit you against your spouse not only to obtain a goal but also to attempt to punish you for your action.
The participants of the Parenting Education Program have overwhelmingly reacted positively to the program. It is suggested that the parties attend the same program in order that the most benefits are attained.
Under Connecticut law, a dissolution of marriage may invalidate any will you may have. To protect yourself and the interests of your loved ones, it is important that you have a new will drawn up after the divorce.
The dissolution of your marriage, however, will not affect the beneficiary of any life insurance policies you may have. Once your divorce has been finalized, if you wish to make any changes on your life insurance policies, you contact your agent.
When a spouse fails to follow a court order whether it relates to alimony, support or visitation, there is a mechanism called “contempt” to which your attorney may turn. By this process the Court is directed to the need for enforcement and may enter such compelling orders as are needed, including monetary fines and, in some instances, incarceration.
Either party may come back to court after the final judgment has been entered and request an increase or decrease in alimony or support, except the parties may stipulate in an agreement at the time of the final hearing that alimony cannot be modified. The party seeking the change must prove that there has been a substantial change in circumstances since the time of the dissolution.
Custody of the children may be modified at any time after the judgment if there is a substantial change of circumstances affecting the best interests of the children.
Awards distributing property, or other awards that are not made on a periodic basis, can not be modified, except when fraud has been proven.