The Connecticut Supreme Court recently overturned a lower court ruling that prevented a Connecticut man, Eric Fischer, from seeking money damages against the biological father of a child Fischer had raised believing her to be his own. Back in 2008 , shortly after Fischer and the girl’s mother divorced, a lower court ruled that allowing a suit for damages against the proven biological father would potentially cause emotional trauma to the child, then in her mid-teens. The decision was based on the legal principle of equitable estoppel.
In layman’s terms, and in the context of this case, this means that the court thought it would be unfair for Mr. Fischer to deny –truthfully or not– that he was the father of a child he had treated as his daughter and who had known him as her father.
Now, the State’s high court has ruled that the lawsuit against the biological father may proceed. Through it, Fischer seeks to recover nearly $200,000 in child-rearing costs from the biological father, Richard Zollino –a former business partner of the child’s mother.
The young woman at the heart of the dispute is now 19 years old — legally an adult — and her name was released as part of the Court’s decision. Not surprisingly, the case has received attention from the press so whether or not the family secret had been shared with the young woman, she will now need to grapple with how to deal with a wider public discussion of her parentage and, more importantly, of Mr. Fischer’s priorities.
The dollars involved are substantial and there is certainly enough culpability to spread around among the adults, however that doesn’t make the case a simple one.
Connecticut, like most other states, allows for divorce — or, as we call it in Connecticut, dissolution of marriage– on a number of grounds. These grounds include, among others, adultery, willful desertion, habitual intemperance, intolerable cruelty, and the irretrievable breakdown of the marriage. It is the last of these — irretrievable breakdown of the marriage — that is almost universally used in divorce cases in Connecticut. The legislature added the grounds of irretrievable breakdown in 1973 making Connecticut one of many so-called of no-fault states. Unfortunately, this designation causes some confusion among divorcing couples to this day.
With very few exceptions, lawyers now site no-fault grounds rather than fault grounds in even the most bitterly contested cases. This is because choice of grounds relates to only one of very many issues a court must decide in a divorce. That single issue is whether the divorce, itself will be granted. The intent of adding a no-fault language to the list of grounds for divorce was to make it unnecessary for parties to present evidence of wrongdoing in order to end their marriage.
While there were some who saw the advent of no-fault divorce as destructive to the institution of marriage, the common wisdom was and remains that, by making it unnecessary to present proof of a spouse’s faults or failures just to end a marriage, couples and families could emerge from the process with minimal damage.
Still, adding a no-fault grounds to the list of fault grounds was never intended to prevent the court from hearing evidence about bad behaviour in deciding other issues in divorce cases. Instead, it only meant that judges no longer had the option to deny a divorce if there had been insufficient proof of fault such as adultery or cruelty. If one spouse testifies that the marriage has broken down irretrievably, it has, whether or not the other spouse agrees. Thus, one issue of the case has been decided.
Aggrieved spouses may still produce evidence of all sorts of wrongdoing in an effort to convince a court to award or not to award alimony, and to divide the marital property in a way that favors them. On issues of child custody and visitation, the court is obligated to resolve disputes based solely on the best interests of the children. Here, too, if one of the parties has behaved in a way that threatens the well-being of the children — everything from a pattern of disengagement, to neglect or abuse — proof of those behaviors are relevant to the interests of the children and are therefore admissible. For all of these reasons, referring to Connecticut as a no-fault state can be a bit misleading.
So, what is an uncontested divorce? It is one in which fault — whether or not it played a part in the breakdown of the marriage — is never brought to the attention of the court because virtually all issues, including custody, support, alimony, the division of property, and more, have been resolved by the parties, themselves. In those cases, the court is simply provided with an agreement which will be approved provided it is not manifestly unfair or detrimental to the interests of the children.
Even in truly uncontested divorces, the court has an obligation to review the agreement so all of the documentation that is required in contested cases, is also required in uncontested cases. This documentation includes properly completed financial affidavits. In families with children, the parties must also submit affidavits in which they swear that no other court is considering issues affecting the children.
Sometimes, cases are technically uncontested because one party is not participating. In these cases, the party seeking the divorce must also follow strict rules which assure that the absent party has been properly notified of the action and has been given a fair opportunity to participate.
Couples planning an uncontested divorce, and even individuals who expect that their absent spouse will not oppose a divorce, should still take great care to be sure that their agreement or, in the case of unopposed divorces, their proposal, is truly fair and reasonable and that it covers all of the issues that should be addressed. Although the court does have an obligation to review the agreement for manifest unfairness, it is extremely unusual for judges to interfere in any way with a completed agreement. Moreover judges are not permitted to provide legal advice to the parties who appear before them. Also, it can be nearly impossible to correct certain portion of unfair agreements once they have been made part of a decree of dissolution. Therefore, even those preparing for an uncontested divorce will benefit for the advice of experience counsel.
Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship. However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.
Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing. Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.
Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.
Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused. In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.
Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.
Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming study identifying a long list of lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.
The lesson here is to make the strongest possible effort to achieve a healthy parenting plan for your children, but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.
As the result of our bad economy, more and more divorcing couples are attempting to act as their own lawyers. While this may save money in the short run, the long run consequences can be both devastating and irreversible, especially when it comes to how the parties divide their property. This is because, under the laws of Connecticut and many other states, once the court has approved an agreement to divide marital property, the agreement can never be modified absent a showing of actual fraud.
One of the biggest mistakes so-called pro se litigants make in handling their cases is failing to take advantage of a process known as “discovery”. Discovery is the mechanism by which lawyers collect evidence to use in lawsuits. In the case of divorce, lawyers routinely file formal requests for documents, not only directed to the adverse party, but also directed to employers, unions, banks, and others who might have financial information relevant in the divorce. Divorce lawyers then use the information they have gathered to prepare for negotiation and trial.
If they did not perform this crucial step in the litigation process, they would be forced to rely upon the notoriously inaccurate information provided by the adverse party on a single document known as a “financial affidavit”.
Unfortunately, this is exactly what the majority of pro se litigants do. This can result in serious miscalculations of the amounts of alimony and child support that should be paid and can also result in the over or under valuation of assets. It can even mean overlooking marital assets entirely.
When balanced against the cost of giving up a fair share of a lifetime pension, for example, the savings realized by going it alone in divorce court can be insignificant.
There is no reason why pro se litigants cannot conduct their own discovery if they first educate themselves about the types of discovery available and the rules for conducting it.
While non-lawyers do not have the right to issue subpoenas on their own, court clerks generally can sign subpoenas on their behalf.
Some requests for discovery do not even require subpoena power, notably when the request is addressed to the adverse party. Just by formally requesting items such as bank and credit card statements, tax returns, and more, pro se parties could potentially do a far better job in representing their own interests. Sadly, though, most are either unaware of the process or unable to maneuver the system in order to collect the information they need. Still others don’t know what to ask for because they are unaware of what assets are divisible in a divorce.
Courts in Connecticut and in most other states are making great strides in providing assistance to pro se litigants through programs that provide do-it-yourselfers with the forms that are required to process a divorce, but rarely does the assistance go beyond that. In fact, court personnel from clerks to judges are generally prohibited from offering legal advice at all. Nevertheless, people who have been provided with a set of necessary documents by a court official are often left with the illusion that they have received the range of legal counsel and assistance that they would have received from a lawyer.
Others feel comfortable trusting their spouse to provide full and adequate financial disclosure and therefore see no need for discovery. Any experienced divorce lawyer will tell you that this is a mistake. This is not necessarily because the other party is dishonest, but because neither spouse may fully understand how to report income and assets. Many honest people also make the mistake of believing they don’t have to disclose occasional income like bonuses or regular overtime simply because those kinds of income are not guaranteed.
If you find yourself forced to act as your own lawyer in a divorce, you should, at a minimum, visit your local law library and spend an afternoon reading the statutes covering divorce, paying special attention to those related to the discovery process.
If you can’t afford to retain a lawyer to provide full representation in your case, you may be able to hire one on an hourly basis for limited purposes such as preparing discovery requests for your signature, or reviewing proposed divorce agreements before a final hearing. When you consider how much it will cost in the long run, to inadvertently forego an extra $50 a week in child support, or $1000 a month in future retirement income, it’s easy to see that working your way through the discovery process is a rewarding task.