Saw this post this morning.
Wondering what my clients and neighbors in Stonington and surrounds think
In a decision released this week, the Connecticut Appellate court once more addressed the issue of whether and to what extent a divorcing couple can agree to make child support and alimony non-modifiable. It has long been clear that absent clear and unambiguous written language to the contrary, both alimony and child support may be changed by the court as the circumstances of the parties change. This language is normally found in the terms of a written separation agreement, i.e., a contract, between the parties which is adopted by the court at the time of the dissolution and made a court order.
Historically, it has been easier to put a lock on an alimony award than on a child support award for reasons of public policy. The courts have always ruled that only under certain very limited circumstances may the parties to a divorce limit the rights of their children to receive support from their parents.
This week’s decision in Malpeso vs Malpeso involved a situation where the husband was to pay $20,000 per month to the wife as” alimony, or separate support for the minor children” . The ambiguity of that language alone, stated in the disjunctive, made the agreement unusual. The agreement went on to provide that this sum, which it now referred to as simply “alimony” would not be modifiable for 8 years. An exception the parties had agreed on as part of the contract was a calamitous circumstance affecting the economy of New York and similar to the events of September 11, 2001. Clearly such an event had not occurred. Still, the husband argued that his circumstances had changed.
In response to her former husband’s motion to modify the order before the 8 years had expired, the wife objected citing the language of the agreement and the trial court agreed. The appellate court reversed saying the agreement was ambiguous as to whether by “alimony” the parties meant to refer to the order that the agreement had earlier characterized to include child support. Based on that ambiguity, the court held that the longstanding presumption favoring the modifiability of child support prevailed.
In an earlier post, we discussed another recent case in which the parties had agreed, at the time of the divorce, on an ending date for alimony. In that case, the court held that selecting a termination date alone did not make alimony non-modifiable as to term. Both of these cases underscore the need for careful drafting of agreements regarding both alimony and child support. In the event of any ambiguity at all, the courts do not look to the original intent of the parties, but instead to the policies that favor modification.
Writing this month for the New York Times, Megan Wood speaks of divorce as an opportunity for women to create a new identity — a trend that is, apparently, gaining some traction.
The idea of name reinvention after divorce was popularized by Cheryl Strayed in her riveting memoir, “Wild — From Lost to Found on the Pacific Coast Trail.” The author, born Cheryl Nyland, explains that she needed a meaningful new name after her divorce and, rather than opting to return to her birth name, chose one that fit her history. Cheryl had, she freely admits, strayed. While we question whether most women would find comfort in such a decision — query, can one be passive-agressive toward one’s self? — still the issue of what name to carry forward is one most divorcing women confront.
For most of us, the question is whether we are most comfortable identifying ourselves as we have throughout the years of our marriage, perhaps as the mother of our children — maybe from a prior marriage — or as our father’s daughter. The option of adopting a brand new name is a more radical notion.
The options are not quite as open for women divorcing in Connecticut as Wood reports them to be in New York. Outside of divorce, any Connecticut citizen may apply for a name change in Connecticut courts and, as long as there is no intent to defraud creditors or others, the application will ordinarily be granted. However the free no-fuss name-change option available in family court for divorcing women is limited. Under the family law statute on the subject, you may only elect to resume a birth name or other former name, not a new one.
I’d be remiss in not acknowledging that the name change statute applies to men as well. However, typically this means simply dropping the part of a hyphenated name that already included his birth name — hardly as traumatic a decision as that faced by women.