Remember the Automatic Court Orders in Connecticut Divorce / Custody Cases

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

UPDATE TO THE TOLLAND JUDICIAL DISTRICT FAMILY SHORT CALENDAR PROCEDURES

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.

Husband’s digital voice activated audio recording of Wife, precluded from evidence.

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:

https://docs.google.com/a/joeldefelice.com/viewer?a=v&pid=sites&srcid=am9lbGRlZmVsaWNlLmNvbXx3d3d8Z3g6M2FmMDZhNTU1MDZjNTA1OQ

Increase in income, standing alone, does not justify modifying alimony

Parties to a divorce judgment agreed on an alimony award of $15,000. per month plus 25 percent of any bonus income.  Approximately 10 years later, the former wife / recipient of alimony, sought to increase alimony based on two grounds: i) the former husband’s income increased, and ii) her own medical costs increased.

The trial judge increased the alimony award from $15,000 to $40,000 per month, plus 25 percent of any bonus income received.  (The trial court’s decision was not based on increased medical costs, but it was based on an increase in the paying spouse’s income.)  The trial court did not address the issue of whether “exceptional circumstances” justified the increase.

The decision was appealed. The Connecticut Supreme Court concluded that an increase in the supporting spouse’s income, standing alone, ordinarily will not justify the granting of a motion to modify an alimony award.

The case is Dan vs. Dan, 315 Conn. 1 (2014), and it is available here:
http://www.jud.ct.gov/external/supapp/Cases/AROCR/CR315/315CR103.pdf

 

 

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

What is the alimony “formula” in Connecticut?

Connecticut does not use a formula, or “guideline” approach to alimony.  Instead Connecticut law provides for statutory factors, that must be considered, when awarding or modifying alimony.  After considering the criteria below, governing Connecticut alimony, do you think a formulaic / guideline approach would be beneficial?  Or do you support the flexibility of the current system?

Connecticut’s flexible alimony criteria:

“In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties . . . More specifically, these criteria, outlined in General Statutes 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. (Citations omitted; quotations omitted.) Borkowski v. Borkowski228 Conn. 729, 738, 638 A.2d 1060 (1994).

“Court decisions construing the alimony and property division statutes emphasize the responsibility of the trial court to consider all of the evidence, weigh all of the statutory factors, and then to place the weight on each factor that the court deems most fair and appropriate under the particular circumstances of each case. “While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case.” Carpenter v. Carpenter188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The court is not obligated to make express findings on each and “is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others.” Graham v. Graham25 Conn.App. 41, 45, 592 A.2d 424 (1991). The weight to place on each factor depends on the circumstances of each case(Citation omitted.) Moreover, the statutory factors for awarding alimony or assigning property are not exclusive, and the court may consider other equitable factors in eitherSmith v. Smith249 Conn. 265, 284, 752 A.2d 1023 (1999). Robinson v. Robinson187 Conn. 70, 72, 444 A.2d 234 (1982). Werkhoven v. Werkhoven, No. FA094011324S (Feb. 17, 2011) (Frazzini, J.)

What is “Short Calendar” in Connecticut Superior Court?

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.

 

The “Short Calendar” procedure can be confusing to both Connecticut attorneys, and self-represented (“pro se”) parties.  To make matters more complicated, customs and procedures may vary between courts.

Short Calendar procedures apply to both civil and family court cases.  In Rockville Court (Tolland County, Connecticut) Short Calendar is held on Monday morning each week, except when Monday is a holiday.  Those who have filed motions in Family (divorce and custody) cases, will have to follow the Short Calendar procedure to mark their case “Ready” (or “Take Papers” if applicable, for certain motions), and notify the opposing party they intend to proceed.  This is done several days in advance of court, during the allowed ‘marking period’.

In Family Cases, motions will be marked “ready” again at the 9:30 am calendar call on Monday morning.   Parties should sign in with Family Relations as soon as possible, as there is usually a long wait.  Parties will need to first meet with Family Relations Officers, who will try to help the parties resolve their disagreements.  If an agreement is reached, it needs to be drafted.  The parties will sign the agreement, and bring the written agreement into Court.  Newer files get scanned and e-filed, before going into court, at the Court Services Center.  The judge will canvas the parties (i.e. ask if the parties believe the agreement is fair and equitable, and in the best interests of the minor child(ren), and review the details of the agreement with the parties), before the judge enters the agreement as an Order of the Court.

Parties should come prepared to Family Short Calendar with Financial Affidavits, and supporting documents (i.e. pay stubs).  They may also wish to prepare Proposed Orders, and prepare exhibits should the case have to go before a Judge, for a decision.  If a party has an Attorney, then the Attorney will accompany the party through the process.  The court might not permit lengthy evidence on a Short Calendar date.  It is possible that if an agreement is not reached, the case will be scheduled for a “Special Assignment”, which could be days or weeks later, depending on the court’s availability and urgency of the issues.

The procedures above may vary from court to court, and may be modified from time to time by the presiding judge, or new court rules.

The process for civil cases, is also quite different.  In civil cases, many motions are not ‘arguable as of right’ and there are special procedures to request oral argument.  You need to be familiar with the Connecticut Practice Book (“Rules of Court”), as well as the substantive law, including Rules of Evidence, that will apply to your legal issues.

Speak with an attorney who is familiar with the Short Calendar procedures in your jurisdiction, to address the specific circumstances of your case.

A Short Calendar and Marking Process Quick Reference Guide, published by the judicial branch, is available at:  http://www.jud.ct.gov/external/super/e-services/efile/shortcal_quickref.pdf

Restraining Orders & Protective Orders

We are often asked about Restraining Orders, and Protective Orders.

The information below, is available on the Connecticut judicial website:  http://www.jud.ct.gov/statistics/prot_restrain/

Every case is fact specific.  If you are involved in a proceeding that involves either a civil Restraining Order, or a criminal Protective Order, we strongly advise you to speak with an experienced attorney.

Protective / Restraining Order Glossary

  • Family Violence Protective Order (section 46b-38c of the Connecticut General Statutes) is an order that is issued at the time of arraignment during a criminal proceeding. Usually these orders are recommended by either the family relations office or in some cases the state’s attorney’s office. These orders are usually in effect from the date they are issued until the criminal case is sentenced and/or disposed of. In some cases a protective order can be removed prior to the underlying case being settled.
  • Standing Criminal Restraining Order (section 53a-40e of the Connecticut General Statutes is an order that is issued usually at the end of a criminal case. These are lifetime orders and remain in effect until further order of the court. This order type is generally issued when it is a more severe criminal case.
  • Restraining Order Application (section 46b-15 of the Connecticut General Statutes) is an application for a restraining order ex parte (immediate). It is given out at the clerk’s office to people who come in for relief from abuse in family cases. A Judge reviews the application and affidavit, and decides whether or not to issue a restraining order relief from abuse. If one is issued, the application is then updated to an ex parte restraining order. The Judge can also deny the ex parte relief and issue an Order for Hearing and Notice Summons.
  • Ex Parte Restraining Order (section 46b-15 of the Connecticut General Statutes) is an order issued by the family court when someone has completed the restraining order application. The Judge has reviewed the application and affidavit, and issues a temporary ex parte restraining order. A hearing date is scheduled, and the respondent must be notified. Generally speaking, this order is good for for 14 days, or until the date of the hearing. (Hearings can be scheduled before the 14-day time limit).
  • Restraining Order After Hearing (section 46b-15 of the Connecticut General Statutes) is issued after a hearing on an ex parte restraining order, or an Order for Hearing and Notice Summons. Again, this order type is issued out of the family court. Generally speaking, it is effective for 6 months from the date of the hearing. A victim/applicant can request that the restraining order after the hearing be extended when the 6 months is about to run out. They must file a motion to extend and the respondent must again get notice.

Revised Child Support Guidelines, Effective July 1, 2015

Connecticut has revised the Child Support and Arrearage Guidelines, effective July 1, 2015.  The revised guidelines are available at:  http://www.jud.ct.gov/Publications/ChildSupport/CSguidelines.pdf

For more information, please don’t hesitate to call us, and ask to speak with one of our attorneys.

AN ACT CONCERNING FAMILY COURT PROCEEDINGS

A Committee Bill is pending that may affect Connecticut family law practitioners, and our clients:

General Assembly

Committee Bill No. 5505

January Session, 2015

LCO No. 4691
*04691HB05505JUD*
Referred to Committee on JUDICIARY
Introduced by:
(JUD)

AN ACT CONCERNING FAMILY COURT PROCEEDINGS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2015) Notwithstanding any provision of chapter 815, 815a, 815e, 815j, 815p, 815t or 815y of the general statutes, a court shall not order that a parent have supervised visitation with his or her child, unless such court finds, based upon the evidence presented to the court, that such parent: (1) Has engaged in an act of neglect or abuse that has been substantiated by the Department of Children and Families; (2) has no established relationship with the child with whom visitation is sought; (3) has engaged in criminal conduct that presents a potential risk to the health, safety or well-being of a child; or (4) suffers from a severe mental disability that presents a potential risk to the health, safety or well-being of a child.

Sec. 2. (NEW) (Effective October 1, 2015) A person aggrieved by the action of counsel or a guardian ad litem for a minor child or children, appointed under section 46b-54 of the general statutes, as amended by this act, may bring a civil action seeking appropriate relief, including equitable relief, damages, or both, in the superior court for the judicial district in which such counsel or guardian ad litem for a minor child was appointed. If such civil action results in a judgment for the plaintiff, the court shall award the plaintiff all costs of the action, including such attorney’s fees as the court may allow to the plaintiff. The court shall not enter any order under this section that would require a plaintiff to pay the costs, expenses or attorney’s fees of counsel or a guardian ad litem for a minor child named as a defendant in such civil action. It shall not be a defense to such civil action that the defendant is entitled to absolute, quasi-judicial immunity.

Sec. 3. (NEW) (Effective October 1, 2015) (a) In a family relations matter, as defined in section 46b-1 of the general statutes, if a court orders that a parent undergo treatment or an evaluation from a licensed health care provider, as defined in section 52-184e of the general statutes, the court shall allow the parent to select the licensed health care provider who is to provide such treatment or evaluation.

(b) In a family relations matter, as defined in section 46b-1 of the general statutes, if a court orders that a child undergo treatment or an evaluation from a licensed health care provider, as defined in section 52-184e of the general statutes, the court shall permit the parent or legal guardian of such child to select the licensed health care provider who is to provide such treatment or evaluation. If two parents do not agree on the selection of a licensed health care provider to provide such treatment or evaluation to a child, the court shall continue the matter for two weeks to allow the parents an opportunity to jointly select the licensed health care provider. If after the two-week period, the parents have not reached an agreement on the selection of a licensed health care provider, the court shall select such provider after giving due consideration to the health insurance coverage and financial resources available to such parents. In the case of two parents who cannot agree on the selection of a licensed health care provider to provide such treatment or evaluation to the child, if a parent incurs expenses as a result of permitting the child to be treated or evaluated by such provider, without the express written consent of the other parent, the parent who permitted such treatment or evaluation to occur shall be solely responsible for the costs incurred for such treatment or evaluation.

(c) In a family relations matter, as defined in section 46b-1 of the general statutes, if a court orders that a parent or child undergo an evaluation from a licensed health care provider, as defined in section 52-184e of the general statutes, the results of such evaluation shall be submitted to the court by such provider not later than thirty days after the date of completion of the evaluation.

Sec. 4. Subsection (e) of section 46b-54 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(e) [Counsel] Except as provided in this subsection, counsel or a guardian ad litem for the minor child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child. To the extent practicable, when hearing from such counsel or guardian ad litem, the court shall permit such counsel or guardian ad litem to participate at the beginning of the matter, at the conclusion of the matter or at such other time the court deems appropriate so as to minimize legal fees incurred by the parties due to the participation of such counsel or guardian ad litem in the matter. Such counsel or guardian ad litem [may] shall not be heard on a matter pertaining to a medical diagnosis or conclusion concerning a minor child made by a health care professional treating such child. [when (1) such counsel or guardian ad litem is in possession of a medical record or report of the treating health care professional that indicates or supports such medical diagnosis or conclusion; or (2) one or more parties have refused to cooperate in paying for or obtaining a medical record or report that contains the treating health care professional’s medical diagnosis or conclusion. If] Instead, if the court deems it to be in the best interests of the minor child, such health care professional shall be heard on matters pertaining to the interests of any such child, including the custody, care, support, education and visitation of such child.

This act shall take effect as follows and shall amend the following sections:
Section 1 October 1, 2015 New section
Sec. 2 October 1, 2015 New section
Sec. 3 October 1, 2015 New section
Sec. 4 October 1, 2015 46b-54(e)

Statement of Purpose:

To implement reforms in family court proceedings.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]

Co-Sponsors: REP. GONZALEZ, 3rd Dist.; REP. FRITZ, 90th Dist.

H.B. 5505

Does a party to a divorce need to disclose an accrued, but unvested pension?

Does a party to a divorce need to disclose an accrued, but unvested pension?

In Connecticut parties to a divorce need to exchange Financial Affidavits. These affidavits are designed to provide a comprehensive picture of income, living expenses, assets, and liabilities. A party to a divorce is entitled to rely on the representations of an opposing-party’s Financial Affidavit.

What happens when a party to a divorce does not disclose an accrued, but unvested pension on his or her Financial Affidavit? If a party can argue that an asset was not appropriately disclosed, they may try to re-open a divorce judgment, as it relates to property distribution.

The Connecticut Supreme Court, in the case of Catherine Reville vs. John Reville (SC 18452) (officially released July 8, 2014) addresses the issue. As stated in this decision:

• A party is legally obligated to disclose the existence and characteristics of a pension regardless of whether it clearly is distributable property (under Connecticut General Statute Section 46b-81).

• A party’s ability to show she was defrauded, is not dependent on her establishing that had she known about the pension, she would have been awarded some portion of it.

The real issue in the Reville case is disclosure, as opposed to the right to a party’s interest in the pension, which is addressed in an earlier case . See Bender v. Bender, 258 Conn. 751
The Supreme Court commented that the existence of the pension “was a highly relevant consideration both for the plaintiff in deciding whether to agree to the proposed settlement agreement, and for the dissolution court in deciding whether to approve that agreement.” “Accordingly, nondisclosure, if proven, could have caused the plaintiff to act to her detriment, and full disclosure could have led to a different result in the dissolution action.”

The Court reiterated that “all retirement and employment benefits potentially receivable by a party to a dissolution action must be fully and frankly disclosed on that party’s financial affidavits, regardless of whether they are definitively established to be distributable marital property.”

Joel A. DeFelice is a partner at Marder & DeFelice Law Offices, LLC, located in Vernon, Connecticut.