In our opinion, it is always preferable to have an attorney for “full representation”. Custody and divorce cases are lawsuits. A complaint is filed in the Superior Court. If an agreement is not reached, the case will go to trial. The rules of evidence apply. There are ‘discovery’ obligations, and complicated statutes and judicial decisions (“caselaw”) to be aware of. Mistakes can be costly even if an agreement is reached, and there are times when clearly the parties to the case should have full legal counsel. An attorney who files a ‘full’ appearance will go to court for all court events such as “short calendar” proceedings (which are rarely ‘short’), hearings, settlement conferences, and trial.
However the cost to hire full legal counsel in a custody or divorce case can be prohibitively expensive for some individuals. Some parties return to court repeatedly, making the process expensive. Each court appearance usually results in hourly billing. A party does not have direct control over the number of court appearances required, because their spouse may file multiple motions during the course of the proceeding, or even post-judgment. The party can feel that attorney fees are not being controlled, yet the attorney is ethically obligated to appear in court for each event, prepare for the event, and provide competent representation.
Consider these options when faced with a divorce or custody case:
1) Will a motion for attorney fees be successful? The motion can be filed, to request that the Court order the other party, to pay your attorney fees.
2) Is borrowing funds for an attorney an option? The Automatic Orders prohibit incurring unreasonable debt. These orders prohibit ‘encumbering’ property but they provide an exception for “reasonable attorney’s fees in connection with [the] action”.
3) Is “Standby Counsel” appropriate? When an attorney is hired as standby counsel, the attorney typically will not enter an “Appearance” in the case. Sometimes the attorney may file a “Limited Appearance”. When an attorney is hired as Standby Counsel, the individual represents himself or herself in Court. The attorney however can be retained to meet with the client from time to time, such as to give advice relating to procedural or other issues in the case. The attorney can review proposals that the parties might agree to among themselves. The attorney might assist with the preparation of certain court motions.
We encourage you to consider “Standby Counsel” if you feel you cannot afford an attorney.
Marder, Roberson & DeFelice Law Offices, LLC
76 South Frontage Road
Vernon, CT 06066
On December 5, 2017 the Connecticut Supreme Court will officially release an opinion. The Court concluded that neither a victim of a crime, or a victim’s representative, is permitted to participate in off-the-record, in-chambers pretrial disposition (settlement) conferences. The decision is available here:
If you file a divorce, custody, or legal separation complaint in Connecticut (or if you are served with such a complaint), you must read and understand, the “Automatic Court Orders”.
What are Pendente Lite Orders?
Pendente Lite (a Latin term) refers to those orders that may go into effect ‘while the action is pending’, or ‘during the proceeding or litigation’. You may file a motion or motions (separately from the divorce or custody complaint), for pendente lite relief. This form of relief does not come ‘automatically’; you must ask for this relief by filing motions in court.
The reason why someone would pursue pendente lite orders, is that it could take many months to go to final judgment. A party to a divorce or custody case, may not want to wait many months to ask for specific orders, such as:
- Orders for child support or alimony;
- Custody and visitation orders;
- Other financial orders such as who is required to pay the mortgage, utilities, and household expenses; or
- Other temporary orders, or emergency orders, to address a party’s unique situation.
What are the Automatic Orders?
The Automatic Court Orders will apply to both parties, without the need for filing for specific ‘pendente lite’ relief. They apply to the Plaintiff when the complaint is signed, and they apply to the Defendant once the Defendant is served with the Complaint, and Notice of Automatic Orders. It is crucial to read them, and understand them, any time you are a party to a divorce, custody, or legal separation case.
Some Automatic Court Orders affect only cases involving children. For example:
“Neither party shall permanently remove the minor child or children from the state of Connecticut, without written consent of the other or order of a judicial authority.” Further, the Automatic Orders state that “If the parents or minor children live apart during this proceeding, they shall assist their children in having contact with both parties, which is consistent with the habits of the family, personally, by telephone, and in writing. This provision shall not apply if and to the extent there is a prior, contradictory order of a judicial authority”. If you think that complying with the Automatic Orders will be harmful to a child, or is not in a child’s best interests, you should consult with an attorney to understand your legal rights and options.
Other Automatic Court Orders apply in all divorce cases (regardless of whether there are children). For example:
“Neither party shall conceal any property”, and “Neither party shall change the beneficiaries of any life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners or renters insurance policies in full force and effect.”
There are sixteen (16) Automatic Court Orders and they should be read carefully by all parties. As stated in the orders: “Failure to obey these orders may be punishable by contempt of court. If you object to or seek modification of these orders during the pendency of the action, you have the right to a hearing before a judge within a reasonable time.”
The Automatic Court Orders are available at: https://www.jud.ct.gov/webforms/forms/fm158.pdf
Individuals starting out in business may misperceive and exaggerate the protections that an LLC offers. A Limited Liability Company (“LLC”) may not protect you from ‘torts’ or ‘negligence’ claims. An LLC may offer significantly greater protections from ‘contract’ claims, i.e. ensuring that business owners do not become personally liable for debts of the company. Take for example a commercial lease agreement, which is a contract. You decide to open a small business selling goods or services. You form a single-member (owner) LLC. You approach a perspective landlord who has an appropriate space. Your intent is to rent the space, allowing customers onto the premises to buy goods or services from you. A lease is signed, and the LLC is identified as the tenant. You, personally, do not sign as a party or guarantor of the lease agreement. Here, if the LLC goes out of business and doesn’t pay the rent, the landlord will have difficulty collecting against you personally (attaching your wages, bank accounts, or other property) unless the landlord can ‘pierce the corporate veil’, which can be quite difficult. However, if you personally guarantee the lease payments to the landlord, then you can be made responsible if the LLC does not pay the rent. In this case the LLC may offer protections depending on how the contract is written. Always look to see if there is a personal guarantee!
Tort / negligence claims are quite different from contract claims. A director or officer who commits a tort, or directs the tortious act done, or participates or operates therein, is liable to third persons injured, even though liability may also attach to the corporation for the tort. (See for example Sacred Heart University v. Voll, FBT-CV15-6048244, Hon. Michael P. Camp, Connecticut Superior Court J.D. Bridgeport.) For example if an engineer operates an LLC, and he or she commits malpractice, causing a structure to collapse causing injury, then the injured will seek out damages for negligence or malpractice against the engineer. The LLC may offer no protection, and insurance may be the engineer’s best defense. The same liability could attach to an owner of a restaurant whose poor sanitation practices cause illness.
An experienced attorney will tell you why an LLC is important, and why its protections are sometimes inadequate. You must also maintain certain ‘business formalities’ to maximize the afforded protections of the LLC. An LLC is just one tool to protect yourself. As illustrated above, insurance is another significant tool. What type of insurance you need, will depend in large part on the nature of your business and you should discuss this with a qualified commercial insurance agent.
If you are starting out in business you should speak with an experienced attorney to understand these nuances. If you elect to form an LLC online, with no attorney consultation, you may be doing yourself a significant disservice.
Beginning Jan. 1, 2017, employers will be prohibited “from asking prospective employees about their prior arrests, criminal charges, or convictions on an initial employment application unless the (1) employer must do so under a state or federal law or (2) prospective employee is applying for a position for which the employer must obtain a security or fidelity bond, or an equivalent bond.” PA 16-83; H.B. 5237, An Act Concerning Fair Chance Employment.
“The act allows a prospective employee to file a complaint with the labor commissioner alleging a violation of its employment application prohibition. It also allows a prospective employee or employee to file a complaint with the commissioner alleging an employer’s violation of certain other prohibitions on employment-related criminal record checks. In both cases, violators are subject to a $300 per violation civil penalty imposed by the Labor Department (CGS § 31-69a).”
For more information, please see: https://www.cga.ct.gov/2016/SUM/2016SUM00083-R03HB-05237-SUM.htm
Was the Audio Recording Obtained Illegally? Is it Admissible?
Litigants, including parties to a divorce, often ask if they can record a party or witness, in a dispute. The recording will not be admissible in a Connecticut court, if it is obtained illegally. Connecticut General Statute §52-184a provides: “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.” Unauthorized access to a “computer system” is also a crime in Connecticut, and therefore could be precluded. See CGS 53a-251. The prohibition on use of illegally obtained recordings in court (i.e. trials or hearings), has been extended to their use at depositions.
In Simonson vs. Simonson, FA15-6025703, the Court precluded the use of an audio recording. The husband recorded his wife’s telephone conversation by placing a recording device behind the driver’s side seat of a truck, that the husband owned. When the Wife spoke to a non-party on the telephone, her voice (but not the voice of the non-party) was secretly recorded. The husband’s attorney attempted to play the recording during a deposition, but he was precluded from doing so, and the recording was further precluded from being used at trial.
A different result may have been obtained, if the recording was not a telephone conversation, and if at least one party to the conversation consented to the recording. Connecticut judges frequently admit into evidence, recordings made by a spouse of the other spouse, when the recording spouse was present and a party, to the recorded conversation.
“Eavesdropping” in Connecticut is a Class D felony, punishable by a prison term of one to five years, and a fine of up to $5,000. However civil / family court judges may exclude illegally obtained evidence, even if a person is not arrested or convicted of a crime.
A person commits the crime of eavesdropping “when he unlawfully engages in wiretapping or mechanical overhearing of a conversation”.
General Statutes §52-187(a) provides:
“Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment. The normal operation of a telephone or telegraph corporation and the normal use of the services and facilities furnished by such corporation pursuant to its tariffs shall not be deemed “wiretapping”. (2) “Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment. (3) “Unlawfully” means not specifically authorized by law. For purposes of this section, “cellular radio telephone” means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.
General Statutes §52-570(d)(a) provides:
No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.
Committing a “computer crime” can also result in preclusion of evidence. See C.G.S. §53a-251(b) (“unauthorized access to a computer system”):
(1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization.
(2) It shall be an affirmative defense to a prosecution for unauthorized access to a computer system that: (A) The person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, had authorized him to access; (B) the person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, would have authorized him to access without payment of any consideration; or (C) the person reasonably could not have known that his access was unauthorized.
The Memorandum of Decision in the Simonson case is available here:
Beginning in the spring of 2017, the Internal Revenue Service will use some private debt collectors to act on its behalf, to collect outstanding taxes.
Remember to scrutinize whether any IRS debt collection effort is from a legitimate source. There are a multitude of fraudulent telephone calls, and email claims. Never pay an IRS debt claim (or other claim) utilizing a prepaid debit card. If someone insists you do so, it is a clear sign of a fraudulent claim.
IRS payments should always be made payable to the United States Treasury and sent directly to the IRS, not to the private collection agency.
On Friday, November 18, 2016 Attorney Dale C. Roberson attended the Connecticut Bar Association’s 2016 Federal Tax Institute of New England. This educational event included national speakers presenting on cutting edge tax and estate planning issues, affecting individuals and businesses.
Modern Uses of Partnerships in Estate Planning;
Choosing Wisely Among Charitable Income Plans;
Connecticut Income Tax and Estate Tax Domicile and Residency Audits;
Annual Taxable Gifts, and Business Succession Planning;
Fiduciary Income Tax.
Attorney Roberson has practiced law in Connecticut for more than 30 years, most of that serving individuals and businesses in Hartford and Tolland counties. Attorney Roberson’s practice is focused on estate planning, elder law, bankruptcy, civil litigation, and a wide range of legal matters.
He can be reached at (860) 872-3000, or by email: firstname.lastname@example.org
UPDATE: August 26, 2016:
The Family Short Calendar procedure at the Tolland Judicial District, 69 Brooklyn Street, Rockville, has changed effective October 3, 2016. All matters that appear on this calendar are deemed ready. Ready markings are no longer required. A marking is only necessary if the party who filed the motion wishes the matter to be marked off. If the party who filed the motion does not appear, the court may deem oral argument waived and the motion may be denied by the court. If the party who did not file the motion does not appear, the court may deem oral argument waived and may grant the relief requested in the motion. The Family Short Calendar in the Tolland Judicial District, will be called at 9:30 a.m.