In a decision released this week, the Connecticut Appellate Court upheld a ruling by the trial court that the court did not have authority to allow one member of an unmarried couple to buy out the other in order to separate their interests in a jointly held home — a solution routinely applied in divorce cases.
Dean Fusco and Robbin Austin had been in an almost 40 year relationship and for many years had shared a home that they had purchased together. When they broke up, Dean moved out of the home they had owned together for about 23 years and Robbin remained in the house but ultimately, like many estranged couples, they were unable to see eye-to-eye on a fair way of dividing their possessions including the equity in their house.
Since they were not married, Dean and Robbin could not take advantage of the relatively short process of divorce which typically takes between 5 and 12 months to accomplish except in the most hotly contested cases. Instead, they were relegated to the ordinary civil docket which often moves even more slowly. In order to receive his share of equity in the house, Dean had to file an action for partition — a procedure designed to separate joint ownership in real estate.
Not only is the procedure more cumbersome and, in most cases, more drawn out than divorce litigation, the remedies available are also limited.
Because Robbin was living in the home and wanted to remain there, she asked the court simply to determine what the house was worth and to award Dean his share based on the evidence of what he had contributed over the years both financially and in labor and management. That was, after all, what any divorce court could do and probably would if the parties were already separated.
The court said no. Historically, partition in Connecticut can have only two results. One is called ‘partition in kind’ . That means the property is literally divided up and each party walks away owning his or her part of the whole. That may work fine with open land or a farm, but can hardly work in a single family home.
The other option is ‘partition by sale’. This is used when the nature of the property doesn’t lend itself to a line drawn in the sand. So, because this was a single family home, that is what the court ordered.
Robin, who didn’t want her house sold, appealed the trial court’s decision.
There is a statute she pointed to that does allow the court to order one party the option of buying out the other even when they are not married and must go the partition route.
The statute did not apply here. The problem, according to the Appellate Court who denied the appeal, was that this third option only applies in a small class of cases in which the party to be bought out has an interest deemed to be “minimal”.
Even though Dean had contributed less than Robbin financially, he had worked on the house over the years and the trial court had not considered his interest to be minimal.
The lesson of this case is not that anyone considering buying a house with a significant other outside of marriage or civil union should marry. The lesson is that partners in real estate purchases, whether or not they are in love, need to have a clear written agreement about how their interests will be determined in the event that their partnership some day ends.
Writing recently for the New York Times, author Matt Richtel in an article entitled, ” Till Death, or 20 Years, Do Us Part”, mused about whether setting an expiration date for marriage might be the best way to address new attitudes about marriage — those that render it expendable depending on circumstances.
Richtel, who writes most often about technology, makes his case for a twenty-year contract with tongue in cheek but does make the serious point that no real mechanism exists, short of prenuptial contracts, to mitigate the drama and stress of divorces that happen at statistically predictable stages of marriage.
Richtel implies that making marriage contracts renewable might have the double advantage of lessening the stigma of divorce where it proves inevitable, and, conversely, of raising the consciousness of couples whose marriages will grow stronger if re-examined and effectively re-negotiated at intervals that coincide with marriages’ biggest stressors. Various experts cited in the article suggest that these milestones involve the birth of a child, a job change, the death of a family member, or when the couple finds themselves living in an empty nest. While most of these events are unpredictable, others are not. Generally, for example, empty-nest syndrome shows up at roughly the twenty-year mark. The president of the American Academy of Matrimonial Lawyers, Kenneth Altshuler, quoted in the article, noted that, in his own practice, divorces seem to cluster around the 7 and 20 year marks. As it turns out, the seven year itch may be more than a movie title.
None of this is to suggest seriously that renewable marriage contracts are really ripe for serious thought given the tenor current political dialogue on the overall issue of marriage. Instead, however, Richtel’s article makes us think more seriously about what should be done at the beginning of a marriage to lessen the trauma and bitter discord that so often characterizes the end.
True, prenuptial agreements do put a temporary crimp in the image of unsullied romance that we expect to survive from the first date to the end of the honeymoon. (Although anyone who has ever planned a large wedding knows that only a strong dose of denial can keep that illusion alive.)
On the other hand, at what other point in a relationship will a frank and, mercifully, hypothetical discussion about the practical issue of divorce take a lesser toll on a couple’s relationship? Balance this against the angst that the couple will suffer if their marriage is among the half that end in divorce and at a time when love and goodwill are no longer the most important underpinnings of the negotiations. Once that comparison is made, the only remaining question is what will better serve the couple and their future children — betting everything that they will beat the odds, or promising from the start to do the right thing in the unexpected event that they won’t?
A recent decision of the Connecticut Appellate Court in the case of Felicia Pierot Brody vs. Cary Brody illustrates what can happen when the focus of a divorce case shifts from the issues in the marriage to the credibility, or lack thereof, of one of the parties to the case. In the Brody case, one thing that happened was that a lot of personal information became public – e.g., the husband’s awkward excuse for stashing condoms in his travel bag. Another consequence: Brody was ordered to pay $2.5 million in lump sum alimony even though his prenuptial agreement was meant to prevent that and even though the court was unable to ascertain his income. The trial took place in 2010. Recently the Appellate Court has ruled against Brody on all six issues he raised in his appeal.
For all most of us know, Mr. Brody might have told the truth from start to finish. However, the judge found him not to be credible which, as the finder of fact in a civil case, she was privileged to do.
Any judge will tell you that the best way to appear to be truthful is simply to tell the truth. Still, any divorce lawyer who’s practiced as long as I have, has encountered more than one client who is shocked to learn that their lawyer expects them to be honest.
What kind of lawyer wouldn’t help you hide your assets, understate your income or cover up your extramarital affairs? The answer: any good one. Yet, despite our best efforts, there are plenty of folks who remain unconvinced that honesty is the best policy even when the truth isn’t pretty.
The fact is, there isn’t much that happens in a marriage that the judge hasn’t heard before. Also, there can be two very different sides to every story even when the story is told by honest people. Your secret spending or infidelity might have led to enormous drama in your household, but in divorce court, might barely cause a ripple. Unless, that is, you deny the deed and the judge isn’t buying it.
Brody was not a divorce between members of the 99% although the basic issues were fairly universal. There was an issue of irresponsible spending — in this case buying one too many Ferrari automobiles , a wine cellar, and an airplane. There was an issue of suspected infidelity with no proof other than a few unused condoms. There was a business purportedly in decline — in this case the Defendant’s hedge fund. There were some “he-said-she-said” claims of verbal abuse. All matters divorce judges deal with day in and day out.
No case in Connecticut goes to trial without first going through at least one formal attempt at settlement usually with the assistance of a judge or court-appointed Special Master. Most cases settle before trial. Of the small percentage that do not, only a handful are appealed and those few find little success in overturning the decision of the trial judge.
In this case, the Defendant raised a number of issues that might have served him well during settlement negotiations. His business really had been embroiled in litigation with the SEC, for example, and the prenuptial agreement arguably offered him protection from a lump sum alimony award that would have to be funded by liquidating personal assets.
At trial, however, the judge found him not to be a credible witness. For one thing, he had admitted testifying falsely under oath in an earlier divorce proceeding that his wife had commenced but later dropped. Back then he had denied removing his wife’s jewelery from a safe, but had later come clean. Added to that was the finding that the Defendant had stonewalled during the discovery phase of the trial pretending that certain documents sought by the Plaintiff didn’t exist. With those two strikes against him, the case was pretty much over. The Plaintiff, whose personal net worth at the time of the marriage had been 29 million, and whose dividend income from her separate property was approximately $100,000 annually was awarded alimony and, tacitly, the designation of honest litigant.
A recent pair of California lawsuits has caught the attention of the whole country because –at least at first glance — each case presents an irresistible tale of triumph in a battle between the little guy and the giant.
In the first, Heather Peters, a California Honda owner, opted out of a pending class action suit against the car company based on alleged defects and misleading promotions regarding its Civic Hybrid model. If Ms. Peters had not opted out, she might have become eligible, eventually, to receive a few hundred dollars in cash and some vouchers toward the purchase a new Honda. This was the settlement that had tentatively been approved for each of roughly 200,000 plaintiffs in the class action suit.
Heather, who had paid thousands more for the hybrid versionl of her Civic, , thought this was not enough to compensate her for her losses. Instead, she brought her own small claims suit against the car company. She won the case and was awarded $9,867 in damages. This was just shy of the maximum allowable award in small claims court under California Law — $10,000.
The second recent small claims success story to make national news was smaller but no less impressive. This one, too, was brought in Californiat where Matt Spaccarelli, a man who had purchased an unlimited data plan as part of his cellphone deal with AT&T, found that his service had been “throttled” — slowed to a crawl once his usage reached a certain arbitrary level. He, too, won his case and was awarded $850 by the small claims court. Not exactly a life-changing sum, but enough to buy a bit more phone service and, more importantly, to send a message that unlimited data should mean just that — unlimited.
If only that were the end of the story. Unlike Connecticut, California allows appeals from the judgment of small claims courts. According to the AP, At&T announced its intention to appeal Mr. Spaccarelli’s judgment as soon as the ruling was handed down. Ditto for Honda when Ms. Peters won her case.
So, with no appeal option in Connecticut, could it work more smoothly here? Not exactly. While Connecticut does not allow appeals from small claims judgments, it does provide an option whereby defendants sued in small claims court may file a motion to transfer their case to the regular Superior Court docket before it ever gets heard. Not only does this restore the option for appeal but it also slows down the process considerably and opens up the possibility of trial by jury which makes prosecution more difficult for non-lawyers.
On the other hand, as these two cases demonstrate, pursuing legitimate consumer complaints through the small claims process can catch the attention of the consuming public and of the offending company and thus exert pressure for reform. Sometimes it can even result in a simple victory.
In the Honda case, the plaintiff happened to be a retired lawyer. This undoubtedly came in handy in strategic planning. Ms. Peters was prepared with plenty of admissible evidence to prove her claims regarding gas mileage and had even lined up a witness described as a Honda whistleblower.
Ms Peters helped along the publicity buzz that grew out of the case by publicizing it before the hearing. This drew coverage from a variety of far-reaching media including NPR, Fox News, USA Today, The Los Angeles Times and more. She also launched a web site to encourage other affected Honda Civic owners to follow her lead by opting out of the class action and filing suit on their own. Ms. Peters even re-activated her law license in order to help other plaintiffs prosecute their cases.
How this will turn out for Ms. Peters and for other Honda owners who did not opt out by the February 2012 deadline remains to be seen, but one thing is certain — Ms. Peters managed to deliver a stinging public relations blow to the company that will sap some of the sweetness from the otherwise stunningly favorable settlement they had so far achieved in the class action suit.
The effect of Mr. Spaccarelli’s small claims win on other AT&T subscribers will be less dramatic. This is because, as part of its subscriber contract, AT&T precludes both class action lawsuit and individual suits in courts of general jurisdicion by its customers — a clause previously upheld by the Supreme Court, according to Boston.com.
Still, depending on the amount of publicity the case generates, this could theoretically be a double-edged sword for AT&T since it has, itself, ruled out the opportunity to deal efficiently with large numbers of claims in the context of class action litigation or to play hardball by moving cases out of small claims. From the point of view of the consumer, though, this means that AT&T has less incentive than Honda to fight individual cases commenced in small claims courts — potentially good news for consumers.
For those who opt to pursue their consumer complaints through the small claims system, it is worth noting that rules differ greatly among states. In Connecticut, for example, the maximum recovery in small claims court is $5000 although the cost of filing the suit is only $75 — less than in California.
Moreoer, lawsuits are not the only route to vindication for disgruntled consumers. Each state’s office of the Attorney General has forms and procedures for filing consumer complaints. Consumers need to be aware that by filing an official complaint they are normally consenting to be called upon to act as a witness in any action brought by their state as a result of the complaint.
Many Connecticut residents may remember how , in 2003, New London native, Casey Neistat and his brother Van produced a 3 minute video calling attention to the problem of iPod’s short-lived irreplaceable battery and Apple’s unsatisfactory response to their personal complaints. According to Wikipedia, the video received more than a million hits on the Internet in its first six weeks and soon thereafter caused Apple to announce a new battery replacement program for the device as well as an extended warranty.
This is just one more example of how one or two individuals willing to make waves can lift up millions who find themselves in the same boat.
The mission of the American Bar Association’s Committee on the Delivery of Legal Services is to make courts and the justice system more accessible to everyone. These days, the Committee’s work has become exponentially more difficult because, at the same time more and more individuals lack the income and resources necessary to hire lawyers, courts – including courts in Connecticut – are increasingly underfunded. Last summer, Connecticut’s Chief Administrative Judge, Barbara Quinn, made the scope of the crisis abundantly clear in her report to the legislature. In it, Judge Quinn outlined a myriad of across-the-board cutbacks made necessary by severe cuts in the budget of the judiciary affecting every facet of operations in the State’s courthouses.
This means that judges are increasingly overworked, courtrooms are increasingly understaffed, and the pressure to settle or streamline cases is stronger than ever. Rambling, unfocused hearings in which litigants are unprepared and proper procedural groundwork has not been laid, waste precious court time and cannot be accommodated. While Connecticut, like most states, makes an effort to provide document preparation and other basic services to support to self-represented litigants, those programs are also stretched to the limit. Law libraries in many parts of the state, once a front-line resource for pro se litigants have closed due to budget cuts making matters even worse.
Faced with this reality across the country, the ABA Committee on the Delivery of Legal Services has made recommendations designed to make it easier for lawyers to “unbundle” their services in order to make legal support and assistance more available to individuals who cannot afford to retain a lawyer to provide comprehensive representation in their cases.
In the course of representing a client in any type of litigation, lawyers perform a wide variety of services. These include drafting and serving pleadings, collecting evidence, analysing cases and setting goals, drafting settlement offers, developing trial strategy, writing briefs, and arguing on behalf of clients at hearings and trials.
When a client retains a lawyer to prosecute or defend a lawsuit, the lawyer typically files a document known as an appearance, and thereafter becomes responsible for performing any and all of the functions necessary to bring the case to a conclusion. As part of that process, the lawyer remains available to consult with the client at all steps of the procedure and to provide advice and guidance whenever it is needed. The lawyer also becomes responsible for keeping the client informed about new developments in the case, and of upcoming events.
Because the scope of full representation is so broad and comprehensive, lawyers in most types of cases — with the exception of injury, accident and malpractice cases — charge clients a retainer designed to cover some or all of the anticipated time and expense that will be devoted to the case.
For too many people in this bad economy, the cost of full representation may be out of reach. For those individuals, the choices are limited. They may choose not to participate at all in the litigation or may enter a so-called pro se appearance, signalling to the court that they will be representing themselves. At a minimum, this ensures that they will receive notice of scheduled hearings and other events in their cases.
The unbundling of legal services is designed to provide a middle ground for those individuals. The growth of so-called virtual law offices is part of this trend. Many of these businesses are little more than document preparation services while others offer broader and more skilled support.
Brick and mortar law firms are increasingly willing to offer limited services to clients who must represent themselves in court. The most straightforward unbundled service is document preparation at the commencement of a case. While it may be convenient to pay for such service, the bare-bones documents needed to start a lawsuit are generally available at no cost through each state’s official judicial website or at the office of the appropriate court clerk.
The more difficult part of any case comes after the initial papers have been filed. Unbundled services beyond the opening salvos of a case include case analysis, preparation of litigation checklists, procedural guidance, ghostwriting of legal memoranda and briefs, review of proposed agreements, preparation of subpoenas and document requests, and coaching in preparation for depositions or hearings. None of these services are generally available through court-sponsored pro-se assistance programs since they fall under the category of legal advice. Under existing rules, court personnel including pro-se assistants, clerks, judges, and others are precluded from offering legal advice of any kind. Mere document preparation assistance does not cross that line, but more substantive assistance does.
Unfortunately, most states still do not allow lawyers to file so-called “limited appearances” that would allow them to argue at a hearing on behalf of a client without committing to full ongoing involvement in the case, so court appearances generally cannot be part of the unbundled services lawyers are able to offer.
For those who cannot afford to have a lawyer speak for them in court, it is still worthwhile to seek out experienced counsel who will meet with them to perform some or all of the other services that go into case preparation and development. By unbundling those services, lawyers can perform specific tasks on a flat fee or hourly basis depending on the needs and budget of the client.
In the past, lawyers have been reluctant to offer services related to litigation on a piecemeal basis. This is because no amount of quality document preparation or coaching can guarantee that the client will achieve satisfactory results. For that reason lawyers worry that based on their limited involvement they may be blamed for difficulties or setbacks — whether forseeable or not — that the client might later encounter. Now, though, with the growing support of both the bench and bar oversight bodies, lawyers have become more willing to work with clients in limited capacities as long as those limits are carefully outlined in an appropriate engagement letter.
For anyone otherwise facing a lawsuit alone, where the stakes can be high, unbundled legal services can be a life-changing investment.
CONNECTICUT’S DEPARTMENT OF CHILDREN AND FAMILIES ANNOUNCES BIG CHANGES IN HOW IT WILL HANDLE REPORTS OF CHILD ABUSE OR NEGLECTPosted: February 13, 2012
Last year, the new Commissioner of the Connecticut Department of Children and Families (DCF), Joette Katz, called an end to surprise home visits in most cases of reported child abuse or neglect. According to the Connecticut Mirror , Commissioner Katz felt that the practice was inconsistent with the principles of the Department. Katz believes that only 10 to 20 percent of reports of abuse are serious enough to warrant a surprise visit. All others are now to be pre-announced by telephone.
Soon, the Department is scheduled to make another big change. Rather than investigating all reports of child abuse or neglect in the way police might investigate crime, the DCF has announced that beginning in March 2012 it will operate on a model known as Differential Response. Under that model, only a small percentage of reported abuse or neglect will be investigated. Instead, cases considered by the department to be less serious will be approached by collaborating with the family. The goal will be to keep children within the family setting by directing the family to appropriate community services. In keeping with the new policy, the agency’s child abuse “hotline” has even been re-named the “care line”.
The Differential Response model has both proponents and critics. Both groups seem to agree that a benefit of using Differential Response is cost savings. Reducing the number of adversarial proceedings related to claims of abuse or neglect and keeping more children in their home settings saves money. Proponents also argue that collaborating with families to support them in efforts to correct behaviors detrimental to the welfare of children, results in better long-term outcomes for the children.
Opponents don’t necessarily disagree with the concept in principle, but caution that the success of the model depends entirely upon how well it is implemented. They argue that, to produce good outcomes for children, social workers need to be able to do adequate screening and follow-up to be sure the desired results of are actually being achieved and maintained. In other words, DCF workers must be empowered to oversee their cases over time once an initial determination of the seriousness of a case has been made.
Connecticut is just one of many states that have adopted the Differential Response model of child protection, but a 2009 report notes that several states, including Florida abandoned the approach after results were either unsatisfactory or inconsistent among districts.
The question for Connecticut residents is whether the Department can provide funding and resources adequate to ensure that the children of families who have not undergone a traditional investigation will be protected and that their situations will be monitored over time. We would like to know what you think.
If you ever find yourself in a lawsuit, your Facebook privacy settings may no longer matter.
Discovery is a process through which parties to a lawsuit collect evidence and information to prepare their cases for settlement negotiations or trial.
Often, parties squabble over whether certain documents or areas of questioning are ‘discoverable’. Usually the dispute over whether a discovery request must be honored is based on a claim that the document or information is either too burdensome to produce or is protected by laws concerning personal privacy.
Lately, more and more of those squabbles concern whether an individual’s Facebook password and posts are discoverable. For anyone who hoped that their Facebook privacy settings were enough to keep their online discourse private from enemies or adversaries, that hope is fading fast.
Most often, Courts deal with demands for Facebook access in the context of personal injury litigation where the defendant wants to use Facebook photos or posts to show that the plaintiff’s injuries are not as serious as he or she claims. Let’s face it – photos of your golf swing or dance moves will shoot serious holes in your disability claim.
Courts increasingly agree that Facebook content is fair game in the discovery process.
Laws that prevent Facebook, itself, and other social media sites from disclosing member’s private information are of no help if you are the one being asked to allow access. For example, a Pennsylvania court recently found that the federal Stored Communications Act, which would have prevented Facebook from honoring a subpoena of documents, did not apply to the Defendant, himself.
Personal injury litigation is not the only area of law affected by this trend. In a recent pretrial ruling, a Connecticut court paved the way for a divorcing couple in a child custody case to examine each other’s past and current Facebook posts following an attempt by the wife to change her password and delete posts.
Conventional wisdom has always dictated that we shouldn’t post anything on Facebook that we wouldn’t want a potential employer to see. What this growing body of caselaw shows us is that, when you share too much information with your Facebook friends, you risk losing more than just a job.