In Connecticut, a divorce is called a "dissolution." It is commenced by first serving a complaint upon the opposing party, and then filing that complaint in court. The complaint has a "return date," which is a date from which all other time periods in the case are measured. Under Connecticut law, there is a ninety (90) day "waiting period" from that return date before the divorce can become final. During the pendency of the proceeding, the superior court has jurisdiction to make orders relating to alimony, parenting of the children, support of the children, the marital home, and other incidental problems related to the initial steps in terminating the marriage.

After the institution of proceedings, an exchange of financial affidavits and other information takes place following which negotiations usually ensue between the attorneys and the parties with a view to resolving the financial and child-related problems of the breakdown. If an agreement is reached, it may be reduced to writing in the form of a "stipulation" or "separation agreement" which will be submitted for court approval. If no agreement is reached, the matter becomes a "limited contested" proceeding if money or property are in dispute. It is a "contested" proceeding if custody of children is in dispute. After the case is tried, the court will enter a decree of dissolution. The final court orders regarding periodic alimony, child support, and custody are generally subject to modification if circumstances change significantly and unexpectedly. Court decisions about property division or assignment, however, are not modifiable.

II. WITNESSES AND EVIDENCE

Even though the trial of a family relations matter can be an emotionally agonizing contest between a husband and a wife, a family relations trial is still a trial like any other. The case will be prepared using all available witnesses and evidence as they relate to division or distribution of real estate or personal property and to parenting of minor children. This may require the use of investigators to dig out facts, and it may require seeking the assistance of people who are reluctant to become involved in domestic litigation or to testify at trial. A review of financial records concerning the acquisition of marital assets to trace their origin and the relative contribution of the parties will also be important.

III. FINANCIAL MATTERS

Both parties will complete financial affidavits that set forth their respective financial circumstances. These will be continually updated during the pendency of the proceeding. The affidavits will be filed with the court at least once and often more than once during the proceedings. In addition, more detailed financial discovery motions may be filed by both parties seeking all relevant financial information for each. In some instances it may be necessary to obtain appraisals of property, reports from certified public accountants, and other necessary financial material including tax returns.

IV. KEEPING TRACK OF ALIMONY AND CHILD SUPPORT

During the pendency of the dissolution or a legal separation matter, the court may enter interim ("pendente lite") orders for the payment of alimony and child support. These orders are effective one week from the date they are entered by the court (usually on a Monday). Whether they pay or receive alimony or child support, it is important for the parties to keep track of the payments that are made or not made after the order of the court is entered.

V. INCOME TAXES

Generally, periodic alimony payments, whether temporary or as part of a final decree, arecredits on the payor's return in the year in which they are paid and are includable in the recipient's income in such year. Transfers or assignments of property or payments of lump sum amounts not subject to contingency as divisions of property may not result in tax consequences to the parties. In addition, lawyers' fees incurred for tax advice or for services for the collection of taxable alimony may be deductible. Child support is not deductible by the payor, but the payor is often entitled to the dependency exemption for the minor child for whom he or she is paying support, which may require the custodial parent to sign a written declaration releasing his or her claim to the exemption for a designated tax year.

VI. CHILD SUPPORT STANDARDS

Child support obligations are determined by the Connecticut Child Support Guidelines. They determine child support based on the number of the children, the net income of the parties and the percentage that each spouses' net income bears to the combined net income of both parties. The superior court is without power to make any order in a divorce case for support, maintenance, or tuition payments for a child over 18 unless the parties agree in writing, unless the child remains in high school, in which case their power is extended as long as the child remains in school or reaches the age of 19.

VII. WHO IS ENTITLED TO CUSTODY OF MINOR CHILDREN?

The court may assign custody of any minor child to either parent, to a third party, or jointly to both parents (contemplating joint decision-making by the parents on major child-related matters) based upon the particular facts of the case. Generally, the court will be guided by the best interests of the child, giving consideration to the wishes of the child, if he or she is of sufficient age and is capable of forming an intelligent preference. The causes for the dissolution of the marriage or legal separation may also be considered in making a custody award.

VIII. THE DECREE

Ultimately, the court will enter a decree of dissolution, which may incorporate an agreement between the parties. The divorce is final at the time the court enters the decree, although it may be a few weeks before a certified copy of the judgment is available.

FAMILY LAW UPDATE

By Marcus G. Organschi

CONNECTICUT CHILD SUPPORT GUIDELINES

Effective August 1, 1999, the State of Connecticut Commission for Child Support Guidelines published new child support and arrearage guidelines which supersede the guidelines that have been in effect since June 1, 1994. The Child Support Guidelines can have significant impact for divorcing parents of minor children. The Guidelines control how divorcing parents will contribute to their children’s expenses and will dictate which parent will pay child support. In addition, under Section 52-362 of the Connecticut General Statutes, Connecticut courts are required to order immediate wage withholding for child support purposes unless there is good cause or the parties agree to make wage withholding contingent. The paying party will receive an Advisement of Rights form regarding wage withholding.

Many divorce litigants are familiar with the June 1, 1994 Child Support Guidelines. The August 1, 1999 Guidelines contain some differences. Child support awards under the "new" Guidelines tend to be slightly less than the support awards for the old Guidelines. This does not mean, however, that the parent paying child support necessarily pays less overall.

The new Guidelines continue to provide deductions for each parent for health insurance paid for persons other than the subject child or children and also give parents credit for any insurance costs paid for the benefit of the subject child or children. Under the old Guidelines, however, it was customary for divorcing parents to agree to certain percentage allocations for medical expenses incurred for the children not covered by the insurance, including uninsured and unreimbursed amounts, co-pays, deductibles, and the like. The new Guidelines assign a percentage share of these costs based on a calculation of net income and child support payments. In some cases, the parent paying child support will pay the larger share of unreimbursed and uninsured medical expenses.

The new Guidelines provide a similar approach to work-related day care expenses. Under previous Guidelines, each parent received deductions from his or her gross income for any work-related day care expenses incurred for the children. Under the new Guidelines, that deduction is no longer available. Instead, the new Guidelines allocate each parent’s share of work-related day care expenses on the basis of net income and child support payments.

Under the new Guidelines, in cases in which a child support obligor is an hourly wage earner and has worked fewer than 40-45 hours per week at the time the child support order is established, then any additional income earned by that obligor from working greater than 40-45 hours per week is not considered income for purposes of the Guidelines.

There are many areas in which the new Guidelines are similar to the old Guidelines. The new Guidelines provide child support calculations according to a mathematical formula, as did the earlier Guidelines. The new Guidelines also provide a list of deviation criteria, which are factors the court can consider when ordering child support amounts that differ from the amounts calculated by using the Guidelines formula. One significant deviation criterion relates to situations where parents share residential custody. This may include situations where the non-custodial parent has significantly more physical care and control of the child for periods substantially in excess of what is considered a "normal" visitation schedule. In shared custody situations, the court can order deviation if the residential custody arrangement substantially affects either parent’s expenses for the child, but also can consider other equitable factors. In split custody situations where there are more than one child and each parent is the residential custodian of at least one of the children, the Guidelines offset one parent’s child support obligation against the other parent’s obligation.

Another deviation criterion includes extraordinary visitation expenses for the children, a situation common when the parents live great distances apart. One area where this can often be a factor is in situations where one parent relocates to another state after the divorce.

RESIDENTIAL RELOCATION AFTER DIVORCE

In today’s highly mobile society, it is not uncommon for one parent to decide to relocate to another state after divorce. When there are minor children involved, the relocation can have significant impact on each parent’s ability to spend time with the children. Even in situations where one parent has sole custody of children, and even where divorce agreements or decrees do not require notification to the other party prior to relocating, either party can return to court to seek appropriate orders relating to parenting of the children and to whether the children should be relocated out of state.

Generally speaking, parents considering relocation should consider returning to court sufficiently before relocation, sometimes many months, to obtaining appropriate court orders governing the relocation and resulting shifts in parenting and visitation schedules. In cases where this does not occur, and even on the eve of relocation when one parent has already made job arrangements, living arrangements, and other arrangements out of state, the other parent can return to court and potentially obtain court orders prohibiting the relocating parent from removing the children from the state. Usually, it is preferable to resolve relocation issues sufficiently to avoid significant disruption of moving schedules.

When faced with the relocation of one parent out of state, and when parents can not agree to changes in parenting schedules to accommodate that move, the court system frequently refers the case to the Family Division of the Superior Court for a custody and parenting evaluation. This evaluation process can take months and can include the appointment by the court of an attorney to represent the interests of the minor children. The Family Division will attempt to resolve disagreements between the parties and will ultimately make a recommendation that will incorporate appropriate revisions to prior custody, parenting, and visitation arrangements. Often, this may include the custodial parent retaining residential custody with the non-custodial parenting having parenting time during school vacations and summer vacations and long holidays. Recommendations differ in each case, however, depending on the circumstances relating to the prior custody and parenting orders, the distance the parties will live apart, and may take into account the financial ability of the parties to provide transportation for the children to the other parent’s home.

If the parties do not reach an agreement or agree to accept the Family Division recommendation, a judge will hear evidence on the case and will ultimately make a decision. The court will consider certain factors as set forth in the case of Ireland v. Ireland, 246 Conn. 413 (1998). In that decision, the Connecticut Supreme Court adopted the New York Court of Appeals case Tropea v. Tropea, 87 N.Y. 2d 727 (1996). The Ireland decision will govern the Connecticut family courts’ decisions in relocation cases.

In Ireland, the Supreme Court reiterated that although the rights, wishes, and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child or children that must control the ultimate decision of the court. The Supreme Court was mindful of the important relationship that children have with each parent, but recognized that it may not be realistic to try to preserve completely the quality of the relationship with the non-custodial parent, especially if there is a risk to the custodial parent’s ability to start a new and potentially improved life out of state. The Supreme Court also recognized that relocation might be in the best interests of the children and might offer economic, emotional, and educational enhancement of the children’s lives. The Court also noted, however, the possibility that a custodial parent might be motivated to relocate by a vindictive desire to interfere with the relationship between the non-custodial parent and the children.

Therefore, the Ireland decision, the court placed on the custodial relocating parent the initial burden of proof of demonstrating by a preponderance of the evidence that the relocation is for legitimate purposes and is reasonable in light of that purpose. Once the relocating parent makes that showing, the non-custodial parent then bears the burden of proof by a preponderance of the evidence that the relocation would not be in the best interest of the children.

In this analysis, the Supreme Court adopted factors set forth in the Tropea case, including each parent’s reasons for seeking or opposing the relocation, the quality of the relationships between the children and each parent, the impact of the relocation on the quantity and quality of the children’s future contact with the non-custodial parent, the degree to which the custodial parent’s and children’s lives would be enhanced economically, emotionally, and educationally by the relocation, and the feasibility of preserving the relationship between the non-custodial parent and the children through suitable visitation arrangements. The Court also considered the negative impact, if any, from continued or increased hostility between the parents and the effect the relocation would have on relationships with extended family members.

The decision also notes that no single factor should be treated as determinative and recognized that even though the loss of mid-week and weekend visits to the non-custodial parent might have a significant negative impact to that relationship, the more extended visits over school vacations and summer vacations might be significantly beneficial.

Often, in relocation cases, it is possible for the parents to agree to appropriate changes in parenting and visitation schedules that will accommodate greater distances between the parents’ respective households. Even in such cases, it is usually better to place that written agreement before the court for court approval prior to the relocation period, both to protect both parents’ rights and to reduce the risk that either parent will fail to comply with the agreement after the relocation period.