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 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.
According to an article published this summer in the Wall Street Journal, there is an increasing trend among divorce lawyers to market their practices specifically to men.
As a marketing tool, from the perspective of the lawyer, this makes perfect sense. There is nothing new about niche marketing and boutique divorce firms have been all the rage for years. A lawyer who can convince his or her demographic that he or she is a champion of men and understands the injustices that too often befall them in divorce court, can gain a leg up on colleagues who trust clients to understand that experience representing both men and women benefits clients of both genders.
Jennifer Smith, the author of the WSJ article entitled “Lawyers Carve out ‘Divorce for Men’ Niche”, makes it clear that the trend is about marketing and not about law. The article discusses packing lawyers’ websites with SEO rich keywords and phrases appealing to men’s fears and concerns. There are plenty of plausible reasons for this, none having to do with outcomes for clients. Lawyers who limit their practices in this way may believe that any focus in advertising is a good thing, or may have a personal bias that male clients are generally in a better position than women to finance divorce.
The question for men facing divorce, by contrast, is whether the fact that their lawyer markets exclusively to men will make a difference in the outcome of their cases. When pressed for answers on what kind of special advice such firms offered, self-described men’s lawyers reported advising clients not to get into arguments with their wives which might result in false claims of abuse, and not to relocate to distant places if they planned to seek joint custody of their children. Hardly profound insights or advice different from that which any experienced divorce lawyer would offer.
There is no doubt that at least some of the lawyers, who limit their divorce practice to men, genuinely believe that men tend to be short-changed in divorce court. Many might be proponents of alimony reform — a hot issue across the country.
Query, though, whether any judge is likely to be swayed in his or her decision by the politics of the husband’s lawyer as opposed to by the facts of the case. To the extent that gender biases exist in any jurisdiction, count on the fact that the experienced lawyers in that jurisdiction are aware of them and are prepared to address them on behalf of their clients. All of us are bound by Rules of Professional Conduct that require us to represent our client’s zealously.
Before selecting a lawyer who touts himself or herself as a man’s divorce lawyer, men should first ask: does it cost extra, and, if so, exactly why?
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.
According to a recent article published in USA Today, a study of over 7000 individuals conducted by researchers at the Ohio State University found that 79% of marital separations end in divorce.
The study found that the average length of separations that resulted in reconciliation was two years, while the average of those ending in divorce was three years. Surprisingly, the chances of reconciliation virtually disappeared among this group beyond the three-year mark. While many couples who lived apart for three or more years eventually divorced, others simply continued the separation indefinitely.
The study found that women with children under 5 years old were more likely to separate from their husbands rather than to divorce immediately.
All of this means that a great number of couples either delay or forego altogether the protection of laws designed to shield them financially in the event their marriage comes apart. These include laws governing the division of marital assets as well as laws regarding spousal and child support.
In a relatively new trend, some couples seriously contemplating trial separation begin the experiment by negotiating a formal post-marital agreement that sets out their respective financial obligations while still legally married and also in the event of an eventual divorce. In this way, they are able to enter into a trial separation — or in some cases even continue living under the same roof — with the security of an agreed-upon set of rules. This provides each of them with a degree of certainty about their financial future that would not otherwise be possible absent divorce litigation. With financial issues resolved, they are better able to understand the choices they face and to focus on other issues in their relationship.
Just like prenuptial agreements, post-marital agreements must meet certain standards in order to be enforceable. These standards are governed by the laws of individual states, but certain features are universal. First, they must be accompanied by full mutual disclosure of financial information. Second, they must be entered into voluntarily and both parties must have had at least the opportunity to have the agreement reviewed by independent counsel. All courts reserve the right to review both prenuptial agreements and post-marital agreements for fairness, but, provided there are no egregious flaws in the contract, courts generally support and enforce them as a matter of public policy.
Impending separation is not the only reason to consider a post-marital agreement. Events such as the birth of a child, a return to school, or the launch of a business can be good reason for couples to consider adding a post-marital agreement to their financial plan.
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.