A new article on Forbes.com by Attorney Jeff Landers gives a nice overview of the reasons to gear up early once you sense that divorce may be one outcome of your marital problems.
While Jeff seems to suggest that divorce dirty tricks are the exclusive province of men, in our experience the risks and considerations he outlines in this otherwise informative article apply to both genders.
Landers points out that consulting an attorney early can not only provide you with a crucial checklist for contingency planning, but can also assure that your spouse won’t beat you to the punch by consulting several of the best area lawyers simply to disqualify them from representing you. He also notes that starting the action assures that if the matter goes to trial down the road, you will be the one, as the plaintiff, to present your case first.
Our clients in Connecticut should also know that by filing for divorce certain Automatic Orders take effect the moment the divorce papers are served on their spouse. These orders prevent the other party from doing a number of things including moving out-of-state with children, hiding assets, taking sole ownership of joint assets, changing locks on the marital residence, changing beneficiaries on existing insurance policies and more. The full text and a summary of the Automatic Orders can be found here on the Connecticut Judicial Website.
Bottom line? While you’re hoping for the best and working on your marriage it also makes sense to prepare well for the worst
Regardless of how one feels about the sequestration debate – either it’s a terrible example of heartless partisan gridlock or a tough but necessary path to fiscal discipline – the reality is that the automatic cuts expected in different areas of government spending are already having an impact.
“We have lost about 20 employees through sequestration,” said Raymond Lopez, Jr., president and CEO of Engineering Services Network (ESN), one of the top Latino-owned companies in Virginia. ESN is an engineering and technology company which does contract work for the Department of Defense. In anticipation of cuts, Lopez’ customers have cut back on orders, resulting in the layoffs.
“This is a sad commentary on our ability to govern in this country by our elected representatives,” said Lopez. “If everything is done by knee-jerk reaction, we are going to hurt our sons and daughters who are our war fighters right now,” remarked…
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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.
A new Connecticut Appellate Court case provides us with a window into what may be a shift in judicial attitudes on the issue of whether to look at earning capacity vs. actual or reported earnings in alimony and support cases.
In 2009 when Sandy and Scott McRae — both small business owners — were divorced, the trial court entered an alimony award based not on the couple’s respective financial affidavits, but instead on what the court estimated their real earning capacities to be — a higher number for both husband and wife. Based on those assumptions, the court entered an order that, in theory at least, equalized their incomes.
Mr. McRae wasted no time petitioning the court to reduce the award. On his third attempt in 2011, he finally met with success. Judge Trial Referee Herbert Berall reduced Mr. McRae’s weekly alimony obligation from $250 to $150 per week. Better still, from Mr. McRae’s point of view, the court allowed one half of that amount, $75 per week, to be treated as payments toward a substantial arrearage Mr. McRae had accumulated by unilaterally reducing his alimony payments without the benefit of a court order. At that rate, Mr. McRae’s arrearage would not be fully paid for approximately 7 years and, meanwhile, even the remaining $75 — the new current order — would drop away before long under the terms of the original decree.
Sandy McRae appealed the order on a number of grounds. The question that interests us the most was whether the court erred by comparing apples to oranges — 2009 earning capacity to 2011 reported earnings. The court made it clear on the record that it considering Mr. McRae’s financial affidavit and tax returns in deciding whether to modify the 2009 alimony rather than looking beyond those numbers as the first court had done to consider, instead, Mr. McRae’s earning capacity.
The point is a technical but important one. Under Connecticut law and the law of most other states as well, courts cannot modify alimony without first finding, as a matter of fact, that there has been a substantial change in the financial circumstances of one or both of the parties. There were two sides to Ms. McRae’s argument. If the trial judge had looked at earning capacity rather than his actual reported earnings, then the judge hearing the motion for modification should have done the same thing.
Conversely, she argued, if the court was considering Mr. McRae’s reported income in 2011, it should compare it, not with his 2009 earning capacity, but with what he had reported his real earnings to be in 2009 — about the same number he reported in 2011. Effectively, her argument was that if the court had compared apples to apples — reported earnings with reported earnings — it should not have modified her alimony because Mr. McRae was reporting about the same level of income in 2011 that he had reported in 2009.
The appellate court disagreed even though the judge who modified the order clearly said that he was basing the new order on Mr. McRae’s financial affidavit and recent tax returns. The judge said this about the 2009 finding that Mr. McRae had higher earning capacity than his real earnings suggested: ” Well reality set in … [s]o much for predictions. I will tell you, this court, certainly in the last year and a half, has made no decisions finding people’s earning capacity.”
The appellate court rejected Ms. McRae’s arguments finding essentially that the modifying judge based his decision on an assumption that Mr. McRae’s earnings and earning capacity were one and the same so the order was still based on a comparison between past and present earning capacity. This despite the lower court judge’s own words.
So what does all this mean? In part that depends on how many other judges agree that lower incomes are more likely to be the result of economic reality than of divorce game-playing. The case-law in Connecticut makes it clear that courts have the right to consider a person’s earning capacity if they believe that the individual is under-employed. We often encounter clients who insist that their spouses are deliberately under-reporting income or keeping his or her earnings artificially low in order to achieve better results in divorce court. Now it seems, convincing the court of that may be harder in a bad economy than it has been in years past.
This does not mean that earning capacity is lost as a concept in divorce law, but it does mean that the standards of assembling proof, including the use of expert witnesses where appropriate, are higher than ever.