THE CONNECTICUT PRO BONO NETWORK
FAMILY LAW TRAINING
Spring 2006
Presented by:
Connecticut Bar Association &
Connecticut's Legal Services Programs
INTRODUCTION
The Connecticut Bar Association and Connecticut's four legal services
programs (Connecticut Legal Services, Greater Hartford Legal Assistance, New
Haven Legal Assistance Association and Statewide Legal Services) welcome you to
this training program for attorneys volunteering to participate in the Connecticut Pro
Bono Network. The Connecticut Pro Bono Network campaign provides you with the
opportunity to join with legal services programs in providing legal representation to
low-income people (people with income less than 125% of the official federal poverty
level - $24,188 annually for a family of four) in Connecticut. There is great need for
legal services and yet, the programs have extremely limited resources. Through the
Connecticut Pro Bono Network, members of the private bar help meet some of this
unmet need. You will be contacted by a pro bono coordinator shortly after this
training if you have not already received a pro bono referral.
These materials were created by Steven Eppler-Epstein and Claudine Siegel,
Connecticut Legal Services; Mildred Doody and Robin Murphy, New Haven Legal
Assistance Association; Jill Davies and Shirley Pripstein, Greater Hartford Legal
Assistance; Emily Moskowitz and Maxwell Gould.
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FAMILY LAW TRAINING
Table of Contents
INTRODUCTION
i
TABLE OF CONTENTS
ii
SUMMARY OF A SIMPLE DIVORCE
I.
1
PROCEDURES AND LAW
Interviewing the Client . . . . . . . . . . . .
Grounds
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Jurisdiction . . . . . . . . . . . . . . . . . .
For Dissolution
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For Financial Orders . . . . . . . . . . .
For Custody Orders . . . . . . . . . . . .
Venue
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Writ of Summons . . . . . . . . . . . . . . . .
Complaint . . . . . . . . . . . . . . . . . . .
Automatic Orders . . . . . . . . . . . . . . . .
Case Management Date & Conference . . . . . . .
Affidavit Concerning Children . . . . . . . . .
Pendente Lite Motions . . . . . . . . . . . . .
Alimony and Child Support . . . . . . . . .
Custody . . . . . . . . . . . . . . . . . .
Exclusive Use of Family Residence . . . . .
Citations (Order to Show Cause, etc.) . . .
Ex-Parte Orders . . . . . . . . . . . . . .
Prejudgment Injunctions and Remedies . . . . . .
Restraining Order Against Family Violence .
Notice of Lis Pendens . . . . . . . . . . .
Prejudgment Attachment . . . . . . . . . .
Fees
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Fee Waivers . . . . . . . . . . . . . . . . . .
Service on the Opposing Party . . . . . . . . .
Service in Connecticut . . . . . . . . . .
Service Outside Connecticut . . . . . . . .
Service by Publication . . . . . . . . . .
Service Upon the Attorney General or Town Clerk
Appearance by the Defendant . . . . . . . . . .
Discovery . . . . . . . . . . . . . . . . . . .
The Pendente Lite Phase of the Case . . . . . .
Child Support . . . . . . . . . . . . . . . . .
Alimony
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Wage Withholding . . . . . . . . . . . . . . . .
Parenting Education Programs . . . . . . . . . .
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If Your Client Receives/d Welfare (AFDC, TFA) . .
Time Limitations . . . . . . . . . . . . . .
Child Support & “Income Disregard” . . . . .
Arrearages Owed to the State . . . . . . . .
Lump Sum Payments . . . . . . . . . . . . . .
General Assistance (GA & SAGA) . . . . . . . . . .
Medical Assistance (Medicaid and GA Medicaid) . .
Custody and Visitation . . . . . . . . . . . . . .
Criteria . . . . . . . . . . . . . . . . . .
Joint Legal Custody vs. Sole Legal Custody .
Attorney/Guardian ad Litem for Minor Children
Relocation
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Health Insurance for Children . . . . . . . . . .
Continued Health Insurance for Ex-Spouse . . . . .
Life Insurance . . . . . . . . . . . . . . . . . .
Distribution of Assets and Liabilities . . . . . .
Assets. . . . . . . . . . . . . . . . . . . .
Personal Property . . . . . . . . . . . . . .
Marital Home . . . . . . . . . . . . . . . .
Pension Plan . . . . . . . . . . . . . . . .
Liabilities . . . . . . . . . . . . . . . . .
Educational Support Orders . . . . . . . . . . . .
Assignment for Final Hearing . . . . . . . . . . .
Documents to be Filed at Final Hearing . . . . . .
The Uncontested Hearing . . . . . . . . . . . . .
Limited Contested and Contested Cases . . . . . .
The Pretrial (settlement) Conference . . . .
The Trial Management Conference . . . . . . .
Referral to a Judge Trial Referee . . . . . . . .
The Judgment File . . . . . . . . . . . . . . . .
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DISSOLUTION FORM SAMPLES . . . . . . . . . . . . 57-130
Retainer Agreement . . . . . . . . . . . .
Summons
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Case Management Dates (JD-FM-165) . . . .
Complaint . . . . . . . . . . . . . . . .
Automatic Orders . . . . . . . . . . . . .
Receipt of Automatic Orders . . . . . . .
Case Management Agreement . . . . . . . .
Affidavit Concerning Children . . . . . .
Request for Non-Disclosure of Residence .
Motion for Custody, Child Support, Alimony
Pendente Lite . . . . . . . . . . . .
Motion for Exclusive Use of Premises
Pendente Lite . . . . . . . . . . . .
Financial Affidavit . . . . . . . . . . .
Order for Hearing and Notice . . . . . . .
Application for Order to Show Cause, Order
to Show Cause, and Summons . . . . .
Application for Relief From Abuse . . . .
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Sample
Sample
Sample
Sample
Sample
Sample
Sample
Sample
Sample
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3
4
5
6
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8
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Sample 10
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Sample 11
Sample 12
Sample 13
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Sample 14
Sample 15
Affidavit Temporary Custody Relief from
Abuse . . . . . . . . . . . . . . . . .
Affidavit - Relief From Abuse . . . . . . .
Ex-Parte Restraining Order - Relief From
Abuse . . . . . . . . . . . . . . . . .
Lis Pendens . . . . . . . . . . . . . . . .
Release of Lis Pendens . . . . . . . . . . .
Application for Waiver of Fees . . . . . . .
Letter to Marshal to Serve . . . . . . . . .
Motion for Notice by Publication or Mail . .
Order for Notice by Publication or Mail . .
Motion for Additional Notice by
Publication or Mail . . . . . . . . . .
Letter to Publish Order for Notice
by Publication or Mail . . . . . . .
Invoice - Voucher for Goods And Services . .
Certification of Service . . . . . . . . . .
Appearance . . . . . . . . . . . . . . . . .
Answer & Cross Complaint . . . . . . . . . .
Agreement Form . . . . . . . . . . . . . . .
Law Journal Notice re Wage Withholding . . .
Advisement of Rights re Wage Withholding . .
Order to Withhold Income for Child Support
Case Input Record, Non IV-D Wage Withholding
Parenting Education Program Order,
Certificate & Results . . . . . . . . .
Order to Maintain Health Insurance . . . . .
Dissolution of Marriage Report . . . . . . .
Military Service Affidavit . . . . . . . . .
Letter to Military . . . . . . . . . . . . .
Final Hearing Questions . . . . . . . . . .
Special Masters Presentation . . . . . . . .
Judgment [Default] . . . . . . . . . . . . .
Judgment [Uncontested] . . . . . . . . . . .
Request for Leave to file Motion to Modify .
Motion to Modify . . . . . . . . . . . . . .
Sample 16
Sample 17
Sample
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Sample 25
Sample
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Sample
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III. FAMILY LAW PRACTITIONER'S HANDBOOK
ON DOMESTIC VIOLENCE
IV.
SAFETY PLANNING
V.
COMPARISON OF PROTECTIVE ORDERS AND
RESTRAINING ORDERS
SEPARATE HANDOUTS
VI.
CHILD SUPPORT GUIDELINES
VII. CONNECTICUT DOMESTIC VIOLENCE SHELTER PROGRAMS,2002"
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May, 2005
A SUMMARY OF
A SIMPLE DIVORCE
1.
Interview Client -- get all essential information; have client sign retainer
agreement; fill out and have client sign Application for Waiver of Fees.
2.
Prepare Writ of Summons, Complaint, Automatic Order, Motions for
Pendente Lite Orders, Affidavit Concerning Children, and Financial Affidavit [and
Motion for Order of Notice and Order of Notice, if needed for out-of-state
defendant]. Choose return date on a Tuesday about five or six weeks from date
papers are being signed. Attach motions and financial affidavit to complaint;
the motions will appear on the Short Calendar shortly after the return date.
3.
Using Form JD-FM-165, determine the Case Management Date for your
judicial district. Fill in the case management date in the space provided in
paragraph 4 of the automatic orders.
4.
Present Fee Waiver and original Writ of Summons, Complaint, Automatic
Order, and Pendente Lite Motions to Court [to a clerk or directly to a judge,
depending on courthouse procedure].
5.
Upon return of granted Fee Waiver, send papers to Marshal for Service.
6.
File originals with marshal’s return with court clerk.
7.
Attend Short Calendar with client and get Pendente Lite Orders.
8.
If service by certified mail not successful, file Motion for Subsequent Order
of Notice of Publication, in newspaper in or near town where defendant was last
known to live.
9.
Attend Case Management Conference [or file case management
agreement with date to proceed uncontested; available days vary from
courthouse to courthouse].
10.
Final Hearing --Ninety (90) days or more after return date. Prepare and
bring to hearing: a) updated financial affidavit, b) custody affidavit, c) health
department certificate, d) requested orders e) if needed, a military affidavit.
Take accurate notes of the judges orders.
11.
Send notice of orders to a non-appearing defendant by certified mail.
12.
Insure wage withholding order prepared, signed by court and served.
13.
Prepare Judgment. Get it signed by other counsel, if any. Send to court
with request for certified copy for client [cost is $15, which client should pay].
14.
Send certified copy of signed judgment to the client.
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PROCEDURES AND LAW
INTERVIEWING THE CLIENT
It is important to interview the client alone to preserve attorney-client privilege
and to enhance full disclosure. However, note that use of an interpreter does not
jeopardize attorney-client privilege.
The following are general types of questions that cover important issues. Please
note that this list is only meant to provide a general overview of some areas to cover in an
interview, each case and client will require different inquiries.
Facts necessary to complete the complaint (See page 8).
If minor children, facts necessary to complete affidavit concerning children
(history of residence of children for last five years; whether there are any
existing court orders regarding custody or visitation).
Information sufficient to prepare a financial affidavit in accordance with
Practice Book requirements (Sample 12)
What is the history of the relationship?
Has either party ever been arrested? When? In what town? What were the
charges? What was the disposition?
Does either party have a history of drug/alcohol abuse?
reasons?
Has either party been in counseling or been hospitalized for psychiatric
If there are minor children:
- Who is the father of each of the children?
- Care-taking history and involvement of the other parent
etc.)
- How are the children doing? (School, medical, emotional, special needs,
- What is your client's view of an appropriate custody/visitation order?
Why? What does your client think their spouse will say is an
appropriate custody/visitation order? Why?
- Is DCF involved? Have they been in the past?
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What is each spouse's financial situation and employment history?
What education or training has each spouse had?
benefits?
Does either party have a pension or other deferred income or retirement
Does either party have any disability or chronic medical condition.?
what kind:
Has either party been a recipient of welfare assistance in Connecticut? (If so,
AFDC. TFA, GAGA, Food Stamps, medicaid)
What is the best time and place to serve the opposing party?
What familial or other resources are available to client?
Information regarding domestic violence is relevant to the timing of filing for
dissolution, the need to obtain a restraining order, the type of custody and visitation
orders to be pursued, and whether your client can participate on equal footing in
mediation with the opposing party. Victims of abuse may not volunteer information about
violence unless asked. Therefore, it is particularly important to ask questions similar to
the ones below to help you discover if violence is an issue for your client and whether
your client will be making decisions based on fear. If you determine that your client is
the victim of domestic violence then it will be helpful to consult the "Family Law
Practitioner's Handbook on Domestic Violence," published by the Family Law Section of
the Connecticut Bar Association in The Connecticut Family Lawyer, Vol. 5, No. 2,
Summer 1990 (included in these materials) and "A Guide to Connecticut's Family
Violence Laws," published by the Connecticut Coalition Against Domestic Violence,
which discusses the response to family violence by the police and the criminal justice
system, as well as civil restraining orders.
How were decisions made in your marriage?
How did you react/feel about that?
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How did your spouse act/feel about that?
What happens when the two of you fight or have a conflict about something?
Tell me other ways in which you both fought.
How about anger? How do you and your spouse act when you're angry?
What types of things make your spouse angry?
Have you ever been afraid of your spouse?
Do you think s/he would ever physically harm you?
Have either of you ever used threats?
Has there ever been any shoving, choking, hitting, kicking, or pushing?
Did either of you ever threaten to or actually destroy the other person's property
or harm pets?
Did either of you ever force the other to do anything against his or her will?
(e.g. sexual acts)
Are there any weapons in your home?
Whose are they and where are they kept?
Have you or your spouse ever had a problem with alcohol or drugs?
Discuss with the client the automatic orders that go into effect for the client when
the complaint is signed and for the defendant when the defendant is served! Provide the
client with a copy of the automatic orders and have the client sign an acknowledgment of
receipt of automatic orders (Sample 6).
Inform the client that he or she will likely be required to attend parent education
classes.
Have the client sign a retainer agreement (See Sample 1 for a suggested retainer
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agreement).
If relevant, have the client sign a fee waiver application.
Conclude the interview.
GROUNDS
The grounds for dissolution of marriage are set forth in C.G.S. §46b-40(c). Most
divorces are brought about only on the ground of irretrievable breakdown, i.e. "no fault."
The causes of the breakdown can be relevant for the purposes of determining custody,
C.G.S. §46b-56(b), property distribution, C.G.S. §46b-81, and alimony, C.G.S. §46b-82,
but will not be relevant in determining the level of child support. C.G.S. §46b-84. It is
not necessary to plead a fault ground in order to introduce evidence of fault. Sweet v.
Sweet, 190 Conn 657, 462 A.2d 1031 (1983).
JURISDICTION
(i) Jurisdiction to Issue a Dissolution Decree
C.G.S. §46b-42 places exclusive subject matter jurisdiction over dissolution
actions in the Superior Court. A complaint for dissolution of marriage may be filed at
any time after either party has established residence in Connecticut (i.e. resides in
Connecticut with the intention of permanently remaining). C.G.S. §46b-44(a).
The court can enter a decree dissolving the marriage if one of the following
conditions have been met:
(1) one of the parties to the marriage has been a resident of this state for at least
twelve months preceding the date of the filing of the Complaint or the date of the decree;
or (2) one of the parties was domiciled in this state at the time of the marriage and
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returned to this state with the intention of permanently remaining before filing the
Complaint; or (3) the cause for the dissolution of the marriage arose after either party
moved into the state. C.G.S. §46b-44(c).
It is important to note that once the action is started, the court may grant
temporary relief, such as temporary alimony and child support orders, pending the
resolution of the case, regardless of whether the party has lived in Connecticut for twelve
months. Temporary orders issued while the dissolution is pending are commonly referred
to as "pendente lite" orders.
(ii) Jurisdiction to make financial orders.
In order to grant a dissolution, the court need not have personal jurisdiction over
the defendant. To make financial orders, however, the court must have personal
jurisdiction over the defendant. If the defendant resides out of state, the court may
exercise "long-arm" jurisdiction over the defendant as to matters concerning temporary or
permanent alimony or child support if the following conditions as set forth in C.G.S.
§46b-46(b) are satisfied:
(1) the non-resident received actual notice of the proceeding pursuant to an Order
of Notice as provided in C.G.S. §46b-46(a); and
(2) the party requesting the alimony or support meets the residency requirements
of C.G.S. §46b-44.
A non-resident defendant can explicitly or implicitly consent to the exercise of
personal jurisdiction over him or her.
Note: If the non-resident defendant has property in Connecticut, jurisdiction may be
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obtained via attachment of the property. The judgment will only be valid to the extent of
the property attached. See C.G.S. §46b-80 and §52-279 et. seq.
(iii)
Jurisdiction to enter custody orders.
The fact that the court may have jurisdiction to issue a dissolution decree and to
make financial orders does not mean that it will have jurisdiction to make custody
determinations. Jurisdiction to enter custody orders is determined in accordance with
Connecticut's version of the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), C.G.S.. §46b-115 et. seq., and the federal Parental Kidnaping Prevention Act
(PKPA), 28 U.S.C. §1738A.
VENUE
Venue for dissolution proceedings, as for all civil proceedings, is governed by
C.G.S. §51-345.
THE WRIT OF SUMMONS
Use the summons titled "Summons Family Actions," JD-FM-3, available at the
clerk's office. A sample summons is attached as Sample 2. In selecting a return date,
keep in mind that:
(1)
The return date must be a Tuesday within two months of the date the writ
is signed. C.G.S. §52-48;
(2)
The summons and complaint must be served on the opposing party at least
12 days before the return date. C.G.S. §52-46; and
(3)
The summons and complaint must be filed with the proof of service at
least six days prior to the return date - C.G.S. §52-46a; and
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For case type, the major code is "F" for "Family." The minor codes, found at
Practice Book Form 103.1A, are as follows:
00 = dissolution of marriage;
70 = foreign family judgment;
10 = legal separation;
72 = Uniform Child Custody Jurisdiction Act;
20 = annulment;
80 = paternity,
30 = change of name;
81 = paternity acknowledgment/ support
agreement;
85 = support petition;
40 = support;
50 = habeas corpus;
86 = agreement to support;
60 = juvenile appeal;
90 = all other
65 = relief from physical abuse;
THE COMPLAINT
The first page behind the summons should be the complaint. A sample complaint is
attached as Sample 4. A sample complaint can also be found in the Connecticut Practice
Book, Volume 2, Form 504.1. A complaint form designed for pro se litigants can be
obtained from the clerk’s office or the judicial department web site. Connecticut Practice
Book §25-2 governs complaints for dissolution.
The complaint must state:
1.
The date of the marriage;
2.
The place of the marriage, including city or town;
3.
Wife's maiden name;
4.
The facts necessary to give the court jurisdiction to grant dissolution;
5.
The name and birth date of all children who are issue of the husband and
wife, including those born prior to the marriage;
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6.
The name(s) and birth date(s) of all children born to the wife since the date
of the marriage who are not issue of the marriage;
7.
The name of any individual or agency presently responsible by virtue of
judicial award for the custody and support of any child;
8.
Whether either party is receiving, or has is the past received financial
assistance from the State of Connecticut or any town within the State of
Connecticut.
If either party is receiving or has received financial assistance from the State or a
town, the attorney general (in the case of State assistance) or town clerk (in the case of town)
must be served with a copy of the writ and complaint. The attorney general or town clerk is
deemed to be a party to the action although they need not be named as a party or summoned
to appear.
The complaint may also state that the wife is pregnant and allege whether the child
will be issue of the marriage. C.G.S. §46b-45a.
If the wife was using a name other than her maiden name prior to the marriage, it is
useful to include that fact in the first paragraph of the complaint. This should always be done
where one of the prayers for relief is that the wife's name be restored to her prior name rather
than her maiden name.
Finally, Practice Book §10-20, which applies to complaints generally, requires that
the complaint contain, on a separate page of the complaint, "a demand for relief which shall
be a statement of the remedy or remedies sought."
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AUTOMATIC ORDERS
The automatic orders, found at Practice Book §25-5, are designed to maintain the
status quo until the parties are before the court. They apply to the plaintiff as soon as the
plaintiff signs the complaint and to the defendant as soon as s/he is served. They continue
throughout the case unless they are terminated or modified by court order. Automatic orders
must be served with the complaint in every dissolution. The judicial department has
provided a form for automatic orders, JD-FM-158. (Sample 5).
The automatic orders do not apply if there is a prior contradictory court order. Thus,
if before the divorce papers are served, a restraining order has been obtained ordering one
of the parties to stay away from the family residence and the minor children, then the
automatic orders concerning assisting the children to have contact with other parent and no
denial of entry to the family residence would not go into effect. In the ordinary run-of-the
mill cases, these automatic orders are salutary, but they do pose problems for many of our
clients: e.g., victims of domestic violence who have never obtained prior orders protecting
themselves or those whose prior orders have expired would now have to go into court and
convince the judge that they should be exempt from some of the automatic orders.
CASE MANAGEMENT DATE & CONFERENCE
The automatic orders require the insertion of a case management date. The judicial
department has made charts of return dates and the corresponding case management date,
form JD-FM-165 (Sample 3), available at any civil court clerk’s office. Each courthouse has
its case management date on a different day of the week, so be sure you look at the chart for
the courthouse you will be using.
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You can avoid having to go to court for a case management conference if you and
opposing counsel are able to agree in advance on the issues in the case and on a schedule for
discovery. P.B. §25-50(c). Report your agreement to court on a Case Management
Agreement form, JD-FM-163 (Sample 7). It is a good idea to complete a case management
form and obtain everyone’s signatures when you are at court on pendente lite motions.
However, if custody or visitation is contested, you must appear for the case management
conference on the case management date. P.B. §25-50(d).
THE AFFIDAVIT CONCERNING CHILDREN
C.G.S. §46b-115s, which is part of the UCCJEA, requires every party in a custody
proceeding (including a dissolution action in which custody is one of the issues) to file an
affidavit attached to the first pleading the following information:
(a)
The child's present address;
(b)
The places where the child has lived within the last 5 years;
(c)
The name and present address of any person with whom the child has lived
during the past five years;
(d)
Whether s/he participated as a party, witness or in any other capacity in any
other litigation concerning custody of the same child in this or any other state;
(e)
Whether s/he has knowledge of any custody proceeding concerning the child
pending in a court in this or any other state;
(f)
Whether s/he knows of any person not a party to the proceedings who has
physical custody of the child or claims to have custody or visitation rights
with respect to the child; and
(g)
If the answer(s) to (d), (e), or (f) is yes, any additional information that the
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court may want.
Practice Book §25-57 requires the filing of an affidavit before the entering of any
order regarding custody, visitation, or support of a minor child. A Practice Book §25-57
affidavit must include the information required by C.G.S. §46b-115s and the following
additional information:
(a)
Whether the wife is believed to be pregnant;
(b)
The name and birth date of any child born since the complaint was filed or a
statement that no children have been born to the wife since the filing of the
complaint);
(c)
A statement that there is no other proceeding in which either party has
participated as a party, witness, or otherwise concerning the custody of the
child in any state; and
(d)
A statement that no person not a party has physical custody or claims custody
or visitation rights with respect to the child.
This affidavit required by C.G.S. §46b-115s has customarily been filed at the final
hearing rather than with the initial pleadings or prior to a pendente lite order. This may
change. While a Connecticut court has held that the lack of an affidavit required by C.G.S.
§46b-99, the predecessor to C.G.S. §155s, does not affect the court's subject matter
jurisdiction, Babouder v. Abdenennur, 41 Conn. Supp. 258, 566 A.2d 457 (1989), the courts
in other states have held the requirement to be jurisdictional. Therefore, a parent with a
Connecticut custody order issued without filing an affidavit pursuant to C.G.S. §46b-115s
might not be able to enforce the order in another state. The Affidavit Concerning Children,
JD-FM-164, (Sample 8) should be filed with the complaint or at the time any custody or
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visitation order is entered.
PENDENTE LITE MOTIONS
Final judgment of dissolution can be granted no earlier than 90 days after the return
date. C.G.S. §46b-67. Obviously, many clients will need relief before then. The vehicle by
which to obtain such relief is a motion for temporary or "pendente lite" relief. The motion
must state clearly that it is a pendente lite motion, Practice book §25-24(b), and meet the
general requirements for motions found in Practice Book §11-1. A sample pendente lite
motion for custody, child support, and alimony, is attached as Sample 10.
(i)
Motion for Temporary Alimony and Child Support
Under C.G.S. §46b-83, the court may award temporary alimony and child support at
any time after the return date. Health insurance coverage for your client and the children are
part of the alimony and child support. The automatic order requires that any insurance in
effect at the time the action was initiated be maintained. Responsibility should also be
allocated for uninsured or unreimbursed medical expenses of the parties and the minor
children.
Note that the motion can be filed before the return date, so that you can prepare a
motion for temporary alimony and child support at the same time as the summons and
complaint, and have the motions served on the opposing party along with the summons and
complaint.
Under Practice Book §25-30(a), a party moving for child support, alimony or counsel
fees must file a sworn financial affidavit substantially in accordance with form JD-FM-6 at
least five days before the hearing date of the motion. The responding party must file a
financial affidavit at least three days prior to the hearing date. A sample financial affidavit
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is attached as Sample 12. Very often, attorneys only present financial affidavits at the time
of the hearing itself. However, if you are the moving party, your failure to follow the rule
can be raised as an objection and cause a delay.
(ii) Motion for Temporary Custody.
Under C.G.S. §46b-56, the court may make temporary orders regarding custody and
visitation at any time after the return date of the complaint. Under C.G.S. §46b-64, such an
order could be made prior to the return date upon the issuance of an Order to Show Cause.
For the court to make temporary orders regarding custody, there must be jurisdiction
under the UCCJA, C.G.S. §46b-90 et. seq. An Affidavit Concerning Children, discussed
supra, must be filed before orders are entered. Practice Book §25-57.
(iii) Motion for Temporary Exclusive Use or Possession of Family Residence.
C.G.S..§ 46b-83 authorizes the court to award temporary exclusive use of family
home or any other dwelling unit available for use as a residence to either party. Such an order
does not affect the respective interests of the parties in the premises. If parties are still
residing together, proof that one party's behavior has an adverse effect on the health and wellbeing of the other party or on that of the children is generally needed. If the opposing party
has already vacated the premises, it is usually good practice to get an order of exclusive
possession and/or use to prevent the opposing party from moving back in. Most judges feel
they have extremely broad discretion on this issue. 2 Kaye & Effron, Connecticut Practice,
Form 504.1-M. New Practice Book §25-25 sets forth specific requirement for contents of
a motion for exclusive possession. See Sample 11.
(iv) Application for Order to Show Cause/Order for Hearing and Notice
Consider seeking an Order for Hearing and Notice, Sample 13, or an Order to Show
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Cause, Sample 14, where the presence of the opposing party in court is necessary in order
for you to obtain the relief you are seeking. For example, you will probably want to do this
if your client is seeking visitation or seeking child support and has no information as to the
opposing party’s income. In-hand service is required. If the defendant does not appear, you
can ask for a capias to be issued or you can proceed without the defendant if the court will
permit you to do so. The court will not issue a capias if the defendant has not been
subpoenaed or cited into court by an Order to Show Cause or an Order for Hearing and
Notice. Clerks at the various courthouses differ as to which form they prefer or require.
(v) Ex Parte Orders
C.G.S. §46b-64 states that any provision authorizing the court to make an order after
the return date shall not preclude the court from making the order prior to the return date
upon the filing of a motion and issuance of an Order to Show Cause. The court has the
authority to make such orders ex-parte under C.G.S. §52-471. The application for an ex-parte
order must be verified (sworn to by the applicant), contain an allegation that there is no
remedy at law, and contain an allegation that irreparable injury would occur if the relief
sought were not granted. C.G.S. §52-473. The statute requires the applicant to post a bond,
but most family judges are either not aware of this requirement or never insist upon a bond.
A waiver of bond can be requested. C.G.S. §52-472.
PREJUDGMENT INJUNCTIONS AND REMEDIES
(i) Restraining Order Against Family Violence.
If your client is being physically injured, or threatened with physical injury by his or
her spouse, your client can seek an "Application for Relief from Physical Abuse by Family
or Household Member" pursuant to C.G.S. §46b-15. Temporary custody of minor children
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can be awarded incident to an order granting the application (which is commonly referred
to as a "restraining order"). Retraining Orders applications must be done on the forms
available at the clerk’s office. See Samples 15, 16, and 17.
After the application is signed by a judge and a hearing date set (Sample 18), the
restraining order can be served on the defendant along with summons, complaint, and
pendente lite motions. You can file an application for an order to show cause pursuant to
C.G.S. §46b-64 setting the hearing date for the pendente lite motion on the same date as the
hearing on the restraining order. Unless otherwise ordered by the judge, the R.O. now lasts
six months. The court has the authority to extend the restraining order for an additional
period of time on motion of the applicant (Motion to Extend Restraining Order). You can ask
to have the restraining order extended “until further order of the court, but not all judges will
do this. Be sure to file your Motion to Extend so that it is calendared before the restraining
order expires. Once the initial six-month restraining order expires, it cannot be extended.
Contact your local legal services offices for a sample motion.
It is important to know that a battered woman may be at increased risk of violence
at the time papers are served on the abuser. You should keep her informed of the progress
of the case. Either you or some qualified person (e.g. an advocate who regularly assists
battered women) should help her explore her options for keeping herself and her children
safe.
(ii) Notice of Lis Pendens
If your client's spouse owns real property - typically, the marital home - either jointly
with your client or as sole titleholder, a review of the land records is always desirable. There
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is a danger that a creditor of the spouse may put a lien on the property. Since the court can
only distribute property the parties own at the time of dissolution, any prior encumbrance
would (1) decrease the equity available for distribution; and (2) most likely have to be paid
by your client if the title were to be transferred to him or her. There may also be a danger that
your client’s spouse will file bankruptcy.
To protect your client's interest in the property, you should file a notice of lis pendens,
Sample 19, on the land records of the town in which the property is located. C.G.S. §46b-80.
The lis pendens can be recorded with the Town Clerk of the town in which the property is
located at any time after service of the complaint. C.G.S. §46b-80(a). The adverse party
must be served with "a true and attested copy of the recorded notice of lis pendens" within
30 days after it is recorded. C.G.S. §52-325(c).
If you file a lis pendens, you should file a release of lis pendens, Sample 20, after the
judgment if the property is not transferred to your client.
(iii)
Prejudgment Attachment
The prejudgment remedies available in other civil actions pursuant to C.G.S. §52278a et seq. are available in dissolution actions. C.G.S. §46b-80. There are times when a lis
pendens would not be helpful. For example, if your client will be unable to maintain the
house after receipt of child support and the house will have to be sold, or if your client will
most likely be the spouse ordered to vacate the premises and quitclaim his or her interest in
the property the opposing party, an attachment would be the more appropriate remedy.
Attachments may be obtained by motion as well as ex-parte by Writ of Attachment.
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FEES
The filing fee for civil actions, including family cases is $225.00. The marshal's fee
for serving the papers will range from approximately $40.00 to $50.00. Publication costs
depend on the newspaper rates.
You should discuss these fees with your client at the initial meeting. Prepare a
weekly or monthly cash flow statement so that you can form an opinion as to whether your
client can afford the fees. Most, but not all, of the clients we refer will not be able to afford
the fees, and will have to apply for a fee waiver.
FEE WAIVERS
If the court determines that a party is indigent and unable to pay court fees or to pay
the cost of service of process, the court must waive court fees and the State must pay the cost
of service. C.G.S. §52-259b; Practice Book §8-2. There is a rebuttable presumption that a
person receiving certain public benefits is indigent and eligible for a fee waiver. C.G.S. §52259b(b). Attached as Sample 21 is the court form for requesting waiver of fees. The
Application must be presented to a judge assigned to family law. You must also have all the
papers prepared and signed (Summons, Complaint, Motions and, if necessary, a Motion for
Order of Notice and Order of Notice) and present them to the judge along with the
Application. If the application is denied, the client has the right to request a hearing.
In addition to seeking waiver of the $225.00 filing fee, some attorneys seek waiver
of the Parent Education Class fee ($100) and the fee for certified copies of orders (cost
varies: $1.00 per page plus $2.00 for certification) and the judgment file, $15.00. Some
judges will not grant this relief, on the theory that the financial state of the client at the time
of dissolution cannot be known when the case is started.
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Some judges will grant a waiver of the filing fee but not of the marshal’s fee.
Moreover, service is more likely to be made if the marshal does not have to wait for state
payment. If at all possible, have the client bring in $50 for the marshal’s fee. If the client is
paying the fees, we recommend that you have the money in your client fund account before
you incur financial responsibility. See Rules of Professional Conduct, Rule 1.8(e) and Rule
1.5(d).
If the marshal is to be paid by the State of Connecticut, the marshal will have to bill
the State on the proper invoice form, which must be attached to the original writ and
complaint when they are returned. See Sample Form 27.
SERVICE ON THE OPPOSING PARTY
Service of the summons and complaint must generally be made by a marshal or
constable. C.G.S. §52-50.
(i) Personal or Abode Service in Connecticut.
Where the defendant resides in Connecticut and his location is known, the marshal
must serve him personally or leave the summons and complaint at the opposing party's usual
place of abode. C.G.S. §52-54.
Send the marshal the Summons, Complaint, Automatic Orders and Motions. If the
client cannot afford the service fee, send a copy of the signed fee waiver Application and an
invoice for services. The invoice is a state form which may be obtained from the clerk's
office. Send a cover letter describing the defendant and the best time and place for service.
(Sample 22).
After serving the defendant, the marshal will give you the "marshal's return,"
indicating the time and method of service and a signed invoice (if you obtained a fee waiver).
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Mail the original court papers with the invoice attached to the clerk's office.
A word of caution: The State can take up to a year to pay the marshal's fee. This
makes some marshals reluctant to serve papers for state payment. If you have trouble getting
a marshal to serve papers for state payment please inform your contact at legal services.
(ii)
Service Outside Connecticut
If a defendant lives in a state other than Connecticut, he may be served in-hand by a
marshal of the state where he resides, Cato v. Cato, 27 Conn. App. 142, 605 A.2d 558
(1992), aff'd 226 Conn. 1, 626 A.2d 967 (1993), or by certified mail. If service is to be by
certified mail or if the defendant's whereabouts are unknown, you will need to prepare a
Motion for Notice by Publication or Mail (Sample 23) and Order of Notice by Publication
or Mail (Sample 24). C.G.S. §46b-46(a); Practice Book §25-28(a). Submit the Motion for
Notice by Publication or Mail and the Order for Notice by Publication or Mail along with
the actual complaint which is to be served to the clerk’s office.
If your client knows the defendant's out-of-state address, you can attempt to serve the
defendant by certified mail, return receipt requested. This is done by giving the papers to a
marshal and having the marshal send them. You may get a bifurcated return, the first part
stating only that on a specified date, the papers were sent to the given address by certified
mail, return receipt requested. If you do get such a return, file the papers with it. You should
later get a supplemental return stating "on (date) I received the return receipt hereunto
annexed."
If the service by certified mail is unsuccessful, return the original papers to court as
if there were a marshal's return attached (which you may have already done if the marshal
bifurcated the return) and proceed with a Motion for Additional Notice by Publication or
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Mail (Sample 25) asking for service by publication. DO NOT CHANGE THE RETURN
DATE. The court's computers are not programmed for such a procedure and if you do it, you
will create confusion. Just be sure to wait 90 days between the last date of publication and
the dissolution hearing.
(iii) Service by Publication.
You and your client should make all reasonable efforts to ascertain the defendant's
address. Practice Book §11-4, governing applications for Orders of Notice, requires the
plaintiff to state the address of the defendant or that all reasonable efforts have been made
to ascertain the address and have failed. If your client does not know the defendant's address,
you will have to serve the defendant by publication. Service by publication is expensive.
We usually obtain a fee waiver, discussed supra, when we know that service will be by
publication.
The first step in service by publication is to determine the locality in which the
defendant is most likely to be. That is the area in which you will have to publish. If your
client has no idea of the defendant's whereabouts, you will have to publish in the locality in
which the defendant was last known to be. To find a publication in that area, consult your
local public library for a media guide. Costs for legal notices vary. We try to use the least
expensive newspaper.
To publish, send the newspaper a copy of the Order for Notice by Publication or Mail
(Sample 24), the Invoice (if you have obtained a fee waiver) and a cover letter (Sample 26),
with directions for the time and frequency of publication, billing, and return of the affidavit
of publication. When you receive the affidavit of publication, make a copy for your files and
send the original to the clerk’s office with the writ and complaint.
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If you
initially attempted to serve the defendant by certified mail and were
unsuccessful, you will have to do a Motion for Additional Notice by Publication or Mail
(Sample 25). Motions for subsequent order of notice are supposed to be sent to court and
heard on the short calendar rather than presented to the clerk.
SERVICE UPON THE ATTORNEY GENERAL OR TOWN CLERK
If either party has ever received public assistance through the Aid to Families with
Dependant Children program (AFDC) or Temporary Family Assistance program (TFA),
Practice Book §25-2(b) requires you to serve a copy of the complaint on the Attorney
General. The attorney general may be served by sending a copy of writ, complaint and all
motions to the Attorney General, State of Connecticut, 55 Elm Street, P.O. Box 120,
Hartford, CT 06141.
An Assistant Attorney General (hereinafter AAG) will file an appearance on behalf
of the State. Do not attempt to go forward on the date the hearing is scheduled until you have
consulted with the AAG in court that day. You may wish to confirm with the AAG who
filed an appearance that s/he will be present in court on the day of the hearing. For
Bridgeport, Norwalk, Stamford, and Danbury, the telephone number is (203) 579-6877. For
all the rest of the state the telephone number is (860) 808-5150; fax (860) 808-5389.
If either party has ever received General Assistance (GA) through his or her town of
residence, Practice Book §25-2(b) requires you to serve a copy of the complaint on the town
clerk. Send a copy of writ, complaint and all motions to the Town Clerk of the town from
which general assistance was received. Town Counsel will generally not file an appearance:
90% of the general assistance paid by towns is reimbursed by the State .
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We usually file with the court a Certification (Sample 28) that a copy of the writ and
complaint was sent to the Attorney General or town clerk.
APPEARANCE BY THE DEFENDANT
As stated in the summons, the defendant is required to file an Appearance (Sample
29) on or before the second day following the return date. Practice Book §3-2. The court
will allow a late Appearance.
The defendant may also file an answer and cross-complaint. Practice Book §25-9.
If a cross-complaint is filed and the plaintiff contests the grounds upon which a dissolution
is sought in the cross-complaint, the plaintiff must file an answer to the cross-complaint.
Practice Book §25-10. It is common in matrimonial cases that no answer is filed by the
defendant. If you represent a defendant who wants to be divorced, you should file an answer
and a cross-complaint (Sample 30), along with appropriate pendente lite motions. If a crosscomplaint is not filed and the plaintiff withdraws the proceeding, the case will be over, and
any pendente lite relief will be terminated.
DISCOVERY
Discovery in family matters is governed by Practice Book §§ 25-31 and 25-32.
Practice Book §25-31 makes Practice Book §§13-1 through 13-11, 13-13 through 13-16, and
13-17 through 13-32 applicable to family matters.
Discovery concerning the financial situation of your opponent is important to avoid
malpractice. At a minimum you should obtain copies of your opponent's:
• tax returns for the last three years
• bank statements
• pension information
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• paycheck stubs
• copy of W-2 forms
• other possible assets
• information as to whether any personal injury or worker compensation actions are
pending.
Other discovery includes obtaining police incident reports, wage records from the
employer, access to Department of Children and Families files, medical records, etc. Call
your local legal services for samples of discovery.
Depositions can be taken by other than stenographic means; permission should be
asked of the court so that the tape can be introduced as evidence to the court, if necessary.
In cases in which the facts are disputed or in which your client’s memory is not the best,
depositions can be very important.
THE PENDENTE LITE PHASE OF THE CASE
A dissolution cannot be granted until 90 days from the return date, and no case may
be assigned for trial until 90 days after the return date. C.G.S. §46b-67. Procedures for
obtaining a final hearing are discussed infra.
If you have filed for motions for pendente lite relief, you will receive a court calendar
in an envelope telling you when and where your motions will be heard. The number above
your address on the envelope is the number of your case on the calendar. Look at the
beginning of the calendar for the date and time of your case, the courthouse in which it will
be heard and then note the column number at the bottom of the column in which your case
is listed.
Be sure to read the instructions on the top of the calendar. Some require that you call
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the courthouse and the opposing party before the hearing date to mark the case as "Ready"
to be heard. If this is required and you do not call the court, you will generally not be
allowed to go forward. You must also notify the opposing party that you are going to
proceed. Assuming that you have complied with these requirements, when you appear in
court for the motions, it is likely that you will be directed to meet with a family services
(a.k.a. family relations) counselor on duty at the courthouse to see if an agreement can be
reached. The family services counselor will discuss the case with the parties and their
attorneys and recommend a settlement. If, after meeting with a family services counselor,
the parties still cannot reach an agreement, the case will be referred to a judge for argument
and, if necessary, a hearing. In some jurisdictions, any matter which will take more than one
hour will not be heard on a miscellaneous calendar day and must be specially assigned for
a hearing.
In a majority of cases, the parties reach an agreement as to pendente lite relief after
meeting with a family services. All such agreements should be entered as an order or the
court. Agreements not entered as an order of the court will not be enforceable. Some
jurisdictions will accept oral agreements, but it is better practice to reduce the agreement to
writing and have both parties for this purpose (e.g., Sample 31). Where there are children
of the marriage, a pendente lite order should contain at minimum the following: 1) a
provision regarding custody and visitation; 2) a provision regarding child support; and 3) a
provision regarding health insurance for the children. Where appropriate under the facts of
the case, the order should contain provisions for alimony, health insurance coverage for the
dependant spouse, purchase of a life insurance policy naming as beneficiaries the dependant
spouse and/or the minor children, and other provisions necessary to protect your client's
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interests during the pendente lite phase of the case. All of these substantive issues are
discussed below.
A pendente lite motion may not be reclaimed more than 90 days after it was filed, but
after 90 days you can file a new motion.
CHILD SUPPORT
The criteria for determining the amount of both temporary and final child support
orders are set forth in C.G.S.A. §46b-84. As of October 1, 1989, consideration of Child
Support Guidelines is mandatory in all child support determinations, and there is a rebuttable
presumption that the amount of the award resulting from application of the guidelines is the
appropriate award. C.G.S. §46b-215b.
The current guidelines, effective as of July 1, 1999, list several deviation criteria
which may be relied upon to justify a deviation from guidelines. You should read both the
Guidelines and the Final Report of the Commission for Child Support Guidelines. A copy
of the Final Report and Guidelines are included in these materials.
If the defendant does not appear in court, you can seek a child support order based
on the best available evidence as to the defendant's income. Your client may have a recent
pay check stub, or a copy of the prior year’s joint income tax return, including W-2 forms,
or your client may have personal knowledge of his or her spouse’s income from having seen
a pay check stub or the income tax return. If your client knows where his or her spouse is
employed, you may be able to subpoena the spouse’s wage record from the employer. If there
is no evidence as to the defendant’s income, an order for child support may be based on
earning capacity.
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One way to obtain evidence of the defendant’s income is to serve the defendant’s
employer with a subpoena duces tecum requiring that the defendant’s salary information be
produced. If there is not sufficient evidence as to the defendant's income or earning capacity,
you can recommend to your client that she seek assistance from the Bureau of Support, 1800-647-8872, which will attempt to locate the defendant and obtain a child support order.
You can also return to court to obtain a child support order if you obtain better evidence as
to the defendant's income.
The age of majority in Connecticut is eighteen. However, parents are liable for child
support until a child turns nineteen or graduates from high school, whichever first occurs, if
the child is unmarried, living with a parent and is a full time high school student. C.G.S.
§46b-84(b). The court may also order child support for a disabled child until the child attains
the age of twenty-one if the child is residing with a parent and dependant on the parent for
support. C.G.S. §46b-84(c).
ALIMONY
Alimony may be awarded to either party. C.G.S. §46b-82. Alimony pendente lite
is based on the same factors as final award of alimony (listed in C.G.S. §46b-82) except that
the grounds for the complaint or the cross-complaint are not considered. C.G.S. §46b-83.
While the court is not required to consider the tax consequences of an alimony award,
you should be familiar with the tax consequences in negotiating an agreement and/or
presenting your case to the court. The Family Law Reporter's Reference File and Tax Guide
has a section on divorce taxation. See also Connecticut Practice Series, "Family Law and
Practice," Volume 8, Sections 55.5-55.14. Unlike child support payments, which are not
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deductible by the payor or countable as income to the payee, alimony payments are
deductible by the payor and countable as income to the payee.
An alimony award cannot be made by the court after a divorce is granted if no
alimony award was made at the time of the divorce decree was entered. Brown v. Brown, 29
Conn.Supp. 507, 294 A.2d 339 (1972). If you have a case which merits an alimony award,
but the proposed payor does not presently have sufficient income to pay alimony, you can
agree to or seek One Dollar per year as alimony in the final decree. A "One-Dollar per year"
clause permits the payee to move to modify the alimony award if the payor's financial
circumstances improve. If the final decree fails to make an alimony award, the right to seek
alimony is permanently waived.
WAGE WITHHOLDING ORDER TO COLLECT CHILD SUPPORT, ALIMONY
Under C.G.S. §52-362(b), a wage execution to collect child support and alimony
payments is mandatory unless waived in writing by the obligee, or for cause found by the
court. See March 8, 1994 Law Journal notice, Sample 32. Waiver of right to an immediate
wage execution is done on the back of a form entitled “Advisement of Rights re Wage
Withholding.” (Sample 33). If an immediate wage execution is not ordered, the court must
order a contingent wage execution. This means that a wage execution will be issued after a
notice and a hearing if the obligor defaults in his or her payments.
It is the obligee's responsibility to insure that the wage execution form is properly
completed, signed by the judge or clerk, and forwarded to the appropriate state agency for
service on the obligor’s employer. If you represent the obligee, fill out the "JD-FM-1" form,
entitled "Order to Withhold Income for Child Support," and submit it to the clerk in duplicate
(Sample 34). The clerk will check to make sure the form complies with the court order, sign
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the form, and return the original to you. This can be done when the order is entered if you
have the form ready. If you submit the form at a later date you may have to wait for it to be
mailed back to you.
All child support obligees fall into one of two broad categories: those receiving IV-D
(Support Enforcement) services and those not receiving IV-D services. Welfare recipients
(AFDC or TFA - see infra) automatically receive IV-D services. Non-welfare recipients may
apply for IV-D services through the Department of Social Services, but there is a $25 fee.
What you do with the completed and signed wage execution form will depend on
whether your client is receiving IV-D services. If your client is receiving IV-D services, you
may serve a true and attested or certified copy of the wage execution on the employer by
certified mail, return receipt requested. The original form, with the return receipt attached,
should then be sent to the support enforcement office serving your client. Alternatively, you
may send the original wage execution to support enforcement for service. If your client is
not receiving IV-D services, you must obtain and complete form JD-FM-150, Case Input
Record, Non IV-D Wage Withholding (Sample 35 ). Follow the instructions on the form
carefully. The original wage execution and the complete Case Input Form must be sent to the
Child Support Information and Problem Resolution Unit (I.P.R.U.), P.O. Box 320680,
Hartford, CT 06132. Whether or not your client is receiving IV-D services, all wage
executions for child support pursuant to C.G.S. §52-362 must be payable to the state
disbursement unit. C.G.S. §52-363(p).
PARENTING EDUCATION PROGRAM
Unless excused by the court, C.G.S. §46b-69b requires parents who are involved in
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a divorce, visitation or custody action (but not restraining order applications) to participate
in a Parenting Education Program. Practice Book §25-5(a)(6) [Automatic Orders] requires
that the parties attend the program within 60 days of the return day. The program takes six
hours. This can be in 2 three-hour classes or 3 two-hour classes. The cost is $100 per person
and those who are indigent may have those fees waived. The course includes information
on the developmental stages of children and their adjustment to parental separation, dispute
resolution and conflict management as well as guidelines for visitation.
The Judicial Branch has contracted with various service providers around the state
to give these courses. The names of the providers and the times of the sessions both during
the day, evening and weekends can be obtained from the Family Services office. A party can
request that s/he not be in the same class as their spouse. The provider signs a certification
to be returned to the court when the client has completed the course. See Sample 36. These
forms are available from the clerk's office and must be presented to the provider by the
participant.
C.G.S.§ 46b-56(b) provides that in determining custody or visitation orders, the court
shall consider whether the party has satisfactorily completed the program. In some
jurisdictions, a divorce will not be granted unless at least one of the two parties has
completed the class.
IF YOUR CLIENT RECEIVES, OR HAS RECEIVED, PUBLIC BENEFITS
The current welfare program in Connecticut for persons with minor children is called
the “Jobs First” program. Temporary Family Assistance (TFA) is the cash component of the
Jobs First program. The old welfare program for persons with children was known as Aid
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to Families with Dependent Children (AFDC). All welfare recipients in Connecticut are in
the new Jobs First program except for two small control groups in New Haven and
Manchester. If you have a client in New Haven or Manchester you should find out from the
Department of Social Services if your client is in the control group which is still governed
by the old regulations.
(i)
Time Limitations
For everyone except the control group, TFA benefits will be paid for a lifetime
maximum of 21 months from the date of application (for new recipients) or the date of
redetermination (for people who were receiving AFDC as of January 1, 1996). There are
exceptions to the time limit for certain classes of individuals, such as minor parents, disabled
persons, individuals caring for a disabled household member, or individuals with a child
under the age of one year. There is also provision for a discretionary six month extension for
persons who have followed the rules and are unable to obtain or maintain a job that would
pay the equivalent of the individual’s monthly welfare benefit plus $90. There is no limit
to the number of six month extensions that an individual may be given.
(ii)
Child support collection and "income disregard"
If your client is receiving TFA cash assistance (which may be by a cash card), then
child support and alimony payments are collected by the State. TFA recipients assign all
rights to child support and alimony to the State for the period of receipt of benefits.
However, to encourage the obligee to cooperate with the support enforcement and the obligor
to pay, the first $100 per month of child support collected is “passed through” to the welfare
recipient. The Assistant Attorney General (AAG) will want to be involved whenever child
support and alimony orders are considered by the court in TFA cases.
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A TFA recipient has the right to request that the State not pursue support if she has
a reasonable belief that she or her child might be put in danger if support is pursued.
(iii) Arrearages owed to the State
If one of the parties and the children of the marriage have received TFA or AFDC,
the State will probably ask the Court to find an "arrearage" of child support pursuant to
C.G.S. §46b-215(a). The Court or a family support magistrate has the authority to
“determine, order and enforce payment of any support due because of neglect or refusal to
furnish support prior to action."
The maximum the State can request is an arrearage equaling the total amount of the
AFDC paid. The statute requires, however, that any arrearage be based on the obligor's
ability to pay. If there is no available information about historical ability to pay, the arrearage
finding may be based on the obligor’s current ability to pay support projected backward .
See C.G.S. §46b-215(a).
Both parents are liable, jointly and severally, to repay the full amount of AFDC or
TFA benefits if either should obtain a "windfall" such as lottery winnings or a personal injury
award. A welfare recipient thus has an interest in the arrearage figure against her spouse
being as large as possible because payment of the arrearage would reduce the amount the
State could seek from her.
A welfare recipient also has an interest in arrearage found against her spouse being
as small as possible. When she stops receiving assistance and support is paid directly to her,
she may need to use the income tax intercept system to obtain any back support owed to her.
Since the State has the first right to the tax intercept for payment of a child support arrearage
owed to the State, she cannot collect back child support througha tax intercept until the entire
State arrearage has been paid.
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(iv)
Lump sum payments
If your client is in the AFDC control group, be careful when seeking lump-sum
payments from the other spouse. You are encouraged to contact a legal services attorney to
discuss your client's specific situation.
If your client is in the Jobs First program, a lump sum award is treated as an asset
which is subject to the $3,000 asset limit for TFA eligibility. If your client receives a
payment in excess of $3,000, she will be ineligible for TFA until she spends it down to the
asset limit. Your client should keep records of what she spends the money on to show that
she is not hiding assets. Consider having any large lump sum payment be by the provision
of "in kind" benefits for your client or the children: if your client never receives the cash,
the TFA rules do not apply.
If your client is in one of the AFDC control groups, the old regulations for lump sum
payments apply. Your client will be ineligible for AFDC benefits for the period of time,
measured in months, that it would take the sum of her monthly benefits, if she received them,
to equal the lump sum. This rule only applies if the client is on AFDC in the month she
receives the lump sum.
If your client will be receiving a payment that would make her ineligible for AFDC,
you should consider timing the payment so that your client can withdraw from AFDC in the
month before she receives the lump sum. However, she will need to show how she spent the
money when she re-applies for AFDC.
STATE ADMINISTERED GENERAL ASSISTANCE
State Administered General Assistance (SAGA) is the welfare program for adults
who do not have dependent children in their care. Historically, the general assistance
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program was administered by the cities and towns. An individual seeking benefits had to
apply to the city or town of his or her residence. In 1997, the State Department of Social
Services began assuming administration of the general assistance program in the larger
Connecticut cites. Currently Norwich is the only town in Connecticut that has a general
assistance program not directly administered by the State. Except for residents of Norwich,
individuals must apply directly to DSS for SAGA benefits.
The SAGA program and the general assistance (GA) program in effect in Norwich
are not identical, but the eligibility requirements are essentially the same.
To be eligible for general assistance, an applicant must fall into one of the following
categories:
Families, including pregnant women, who are awaiting TFA determination
Unemployable
•
Adult and unable to work for a period of six months or longer as determined
by Colonial Care Cooperative, Inc., an agency with whom the state
subcontracts;
•
Under age 16;
•
Over age 65;
•
Over age 55 with a history of chronic unemployment;
•
Needed at home to care for an incapacitated spouse or child of any age;
•
Full time high school student
Transitional
•
Long-term impaired - adults who present medical documentation of severe
physical or mental impairment expected to persist for at least six months and
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who have not yet been determined unemployable by Colonial Care.
•
Short-term impairment - adults who earned at least $500 per quarter in at
least three of the preceding five quarters and who present medical
documentation of being unable to work for a period of two to six months
because of a physical or mental impairment.
•
Substance Abuse or Mental Illness Adult with a substance abuse or mental
illness problem who is in a treatment program approved by the Department
of Mental Health and Addiction Services or who is on the waiting list for
such a program.
Employable individuals - i.e., individuals who do not fit into any of the above
categories, are not longer eligible for general assistance.
Benefits vary depending upon an individual’s classification and living situation:
Classification
Benefit
Family
TFA amount
Unable to Work
$350 per month
Transitional, with shelter costs
$200 per month
Transitional, no shelter cost
$150 per month
Substance abuse/mental illness
benefits payable for 10 of the first 12
months, then for 6 of the next 12 months.
The general assistance recipient's spouse may be liable to reimburse SAGA benefits
to the State of Connecticut or GA benefits to Norwich if there is a financial ability to do so.
If a SAGA or GA recipient receives a lump sum which is less than the person's
monthly award, then the amount of the lump sum is subtracted from the award amount. If
the lump sum is greater than the award amount, then assistance benefits are discontinued.
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If the recipient re-applies for assistance within 24 months, then the disposal of the lump sum
will be evaluated as a transfer of assets: That is, the recipient will have to show that s/he
received fair market value for any transfer of funds from the lump sum. The recipient will
be ineligible for that period of time over which the "uncompensated value" of monies s/he
transferred could have been used to meet his/her basic needs.
DSS promulgates regulations for SAGA and GA. For more information on the
SAGA program, see the DSS Uniform Policy Manual, available from DSS. There may also
be relevant information on the DSS website. Be alert for changes.
MEDICAL ASSISTANCE (Medicaid and GA Medical)
If your client receives TFA, she and her children automatically receive Medicaid (also
referred to as "Title XIX"). If your client receives state administered general assistance, s/he
is automatically eligible for SAGA medical assistance. If the opposing party makes child
support and/or alimony payments in an amount equal or greater than the TFA or SAGA
grant, your client will become ineligible for TFA or SAGA. If the opposing party is able to
make payments comparable to the amount of your client's TFA or SAGAGA grant, you
should discuss with your client the pros and cons of discontinuing TFA or SAGA assistance.
Income limits for Medicaid are higher than those for TFA so that clients who do
receive child support/alimony payments that render them ineligible for TFA may still remain
eligible for Medicaid. If the opposing party may be able to pay child support/alimony in an
amount that would render your client ineligible for Medicaid for SAGA medical assistance,
you should discuss the pros and cons on discontinuing assistance under these programs. For
example, in Turner v. Turner, 219 Conn. 703, 709, 595 A.2d 297 (1991), the court noted that
the parties had agreed to a child support award $10 below that set forth in the Child Support
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Guidelines in order to preserve the wife's Medicaid eligibility, "which she needed because
her health was poor."
The importance of maintaining eligibility for Medicaid or SAGA medical benefits
will of course depend on the availability of private health insurance coverage. The AAG may
insist or an order that the obligor maintain health insurance for the minor children through
his or her place of employment if the cost is not exorbitant or if such insurance is available
at reasonable cost.
If you are not familiar with TFA, SAGA, Medicaid or SAGA medical benefits, you
should consult with an experienced benefits attorney in cases where the opposing party may
be able to pay child support/alimony in an amount comparable to your client's TFA or SAGA
grant.
CUSTODY AND VISITATION
If the parties cannot agree on custody and/or visitation, we generally request the
matter to be referred to a Family Services for a mediation or a study. Our clients and their
spouses usually cannot to hire private experts. If your client or the opposing party receives
Medicaid (Title XIX), the state may pay up to a certain amount for a court ordered
psychological evaluation of the recipient. Private medical issuance may cover an evaluation.
The Judicial Department has no funds set aside to pay for psychological evaluations in
Family Division.
The Family Services officer will prepare a study and recommendation. The study is
admissible as evidence as long as the Family Services officer who prepared it is in court to
testify and be cross-examined. The recommendation of the Family Services officer can be
considered by the court, but it is not binding. Of course, it can be used as a spur for further
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settlement discussions.
(i)
Criteria
Conn General Statues Section 46b-56(b) provides that:
“In making or modifying any order with respect to custody or visitation, the
court shall be guided by the best interests of the child, giving consideration
to the wishes of the child if he is of sufficient age and capable of forming an
intelligent preference, provided in making the initial order the court may take
into consideration the causes for dissolution of the marriage or legal
separation if such causes are relevant in a determination of the best interests
of the child.”
One trial court wrote a summary of some of the criteria courts have considered in
determining custody matters. The summary was reprinted in Connecticut Family Lawyer,
Volume 1, No. 3, Winter 1986. The following are the 22 criteria as reprinted in the
Connecticut Family Lawyer:
(1985).
1. Parenting Skills. Cappetta v. Cappetta, 196 Conn. 10 16-17
2. "Each person's relationship with the child," Cappetta, supra. at 17;
"emotional ties of each parent with the child;" Seymour v. Seymour, 180
Conn. 705, 711 (1980); "the child's primary psychological parent," Seymour
v. Seymour,supra. at 711-712.
3. Character of parent by reason of willful disobedience of court
orders. Hall v. Hall, 186 Conn. 118, 171 (1982); Stewart v. Stewart, 177
Conn. 401, 407 (1919); Simons v. Simons, supra. at 348.
4. Willingness to facilitate visitation by the other parent. Seymour v.
Seymour, supra. at 713.
5. "[P]ast behavior as it relates to parenting ability..." Seymour v.
Seymour, supra. at 711; Yontef v. Yontef, 185 Conn. 275, 283 (1981).
6. Family Relations Division Report recommendations. See Yontef
v. Yontef, supra. at 281.
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7. Independent advice of attorney appointed to represent minor
children. See Yontef v. Yontef, supra. at 281.
8. Credibility. Cf. Yontef v. Yontef, supra. at 277.
9. "[M]anipulative and coercive behavior in...efforts to involve
children in the marital dispute." Yontef v. Yontef, supra. at 281.
10. A parent's behavior and its effect on the child(ren). Yontef v.
Yontef, supra. at 282.
11. Continuity and stability of environment. Cappetta v. Cappetta,
supra. at
12. "[T]he flexibility of each parent to best serve the psychological
development and growth of the child." Seymour v. Seymour, supra. at 711.
13. Which parent is more willing and able to address medical and
educational problems of the child and to take appropriate steps to have them
treated and corrected. Faria v. Faria, 38 Conn. Sup. 37, 47-50 (1982).
14. "[C]hildren living in a familiar and stable environment with love
and attention from their paternal grandparents." Ridgeway v. Ridgeway. 80
Conn. 533, 541 (1980).
15. Psychological instability of one parent posing a threat to the
children's well-being. Ridgeway v. Ridgeway, supra. at 541.
16. Recommendation that one party immediately commence inpatient
treatment. Ridgeway v. Ridgeway, supra. at 541.
17. Visitation having an adverse effect on the child at the time.
Ridgeway v. Ridgeway, supra at 540.
18. Remarriage. Trunik v. Trunik, 179 Conn. 287, 289 (1979).
19. Parental sexual activity Trunik v. Trunik, supra at 288.
20. "[C]onsistency in parenting and life style, insofar as these factors
might affect the child's growth, development and well being." Seymour v.
Seymour, supra. at 711.
21. "[T]he time each parent would be able to devote to the child on
a day-to-day basis. Seymour v. Seymour, supra. at 711.
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22. Untidy condition of the home, alcoholism, leaving home
unattended, emotional problems. Seymour v. Seymour, supra. at 346.
In addition, the Connecticut Supreme Court has decided that domestic violence
should be considered as a factor in determining custody. Knock v. Knock, 224 Conn. 776
(1993).
This list can help you evaluate a case in which there is a dispute as to custody.
(ii)
Joint Legal Custody vs. Sole Legal Custody
Under C.G.S. §46b-56a(b), there is a rebuttable presumption that "joint custody" is
in the best interests of a child where the parents agree to an award of joint custody. C.G.S.
§46b-56a(a) defines joint custody as an order awarding legal custody to both parents,
providing for joint-decision making and providing that physical custody shall be shared by
parents in such a way as to assure the child of continuing contact with both parents. The
statute goes on to note that the court may award joint legal custody without awarding joint
physical custody where the parents have agreed to merely joint legal custody.
If the parties cannot agree to joint legal custody, the court may award joint legal
custody if, and only if, one of the two parents: (1) listed joint custody in his or her claims
for relief, Emerick v. Emerick (I), 5 Conn.App. 649, 502 A.2d 933 (1985), cert. Dismissed,
200 Conn. 804, 510 A.2d 102 (1986); or (2) filed a motion for conciliation counseling.
Cabrera v. Cabrera, 23 Conn.App. 330, 580 A.2d 1227, cert. denied , 216 Conn. 828, 582
A.2d 205 (1990).
There are some important differences between joint legal custody and sole custody:
•
If a parent with joint legal custody fails to the return the child from visitation,
most police departments take the position that no crime has been committed
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(a joint custodian being entitled to physical custody of the child) and may or
may not assist the primary residential parent in regaining physical possession
of the child. But see State vs. Vakilzaden, 251 Conn. 656, 742 A.2d 767
(1999).
•
If the parties or one of them is a foreign national and the children are taken
to the foreign country, some foreign countries will not let the children be
taken out of the country unless the parent they are traveling with has sole
custody.
13.
A parent who has joint legal custody with the child’s other parent must obtain
the signature the other parent to obtain a United States passport for a child
under fourteen years old. Public Law 106-113, effective July 2, 2001.
•
A parent with sole custody is clearly entitled to make educational, medical,
and other decisions pertaining to the minor child. Joint legal custody
presumes agreement, and provides no mechanism for resolution of disputes.
(Joint legal custody does not mean that the parent with whom the children
reside must abide by the wishes of the other parent in the event of a
disagreement).
•
An order of joint custody as opposed to an order of sole custody may make
it more difficult for the residential parent to obtain permission from the court
to relocate to another state with the minor child.
In most cases, parties reach an agreement on custody and visitation. Frequently, our
agreements provide for joint custody, with the child to "reside primarily" (physical custody)
with one of the parties. A visitation schedule is usually also included (as opposed to merely
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providing for "reasonable visitation rights").
We suggest in that in virtually all cases the agreement contain a specified visitation
or access schedule or parenting plan, so that the non-custodial parent's right to visitation and
the custodial parent's obligation to provide visitation are clear. The parties are always free
in practice to add to and/or modify the schedule by mutual agreement, but the schedule will
define their legal rights and obligations. An exception to the need for a visitation schedule
may exist where the parties have been separated for a substantial period and have been able
to arrange visitation amicably on their own.
We suggest that you advise your client to keep a “visitation dairy” or visitation
history if there are visitation issues.
(iii)
Attorney or Guardian ad litem for Minor Child
Connecticut statutes allow for the appointment of an attorney to represent the minor
children. C.G.S. §46b-54. If custody or visitation is contested, it may be error for the court
to have a trial without an attorney representing the minor children. G. S. v. T. S., 23
Conn.App. 509, 582 A.2d 467 (1990). The Connecticut Bar Association has promulgated
guidelines for the representation of minor children in family division cases.
(1982).
56 C.B.J. 484
Essentially, a minor child must be represented in accordance with Rules of
Professional Conduct §1.14 - i.e, the attorney must advocate the position articulated by the
client. If the child does not articulate a position, the attorney may advocate what the attorney
perceives to be the best interest of a child. In addition, the attorney for the child has a duty
to try to facilitate an agreement between the litigants so a trial may be avoided. If the case
does go to trial, the attorney for a minor child may call witnesses and cross examine
witnesses.
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Connecticut General Statutes also allow for the appointment of a guardian ad litem
for minor children. C.G.S. §45a-132. A guardian ad litem may be appropriate if the minor
child is not competent to express an opinion or if the child appears to be expressing an
opinion which is not in his or her best interest.
Neither the legislature nor the courts have articulated the duties of the guardian ad
litem.
Many judges expect the guardian ad litem to conduct an investigation, write a report, and
testify at trial as to the findings and best interests of the child. As the crush of cases outpaces
judicial department resources, the courts are increasingly relying on guardians ad litem to
perform this investigative and report function that formerly was the province of family
relations. A guardian ad litem for a minor a minor child is not required to be an attorney, but
may be an attorney. No special education, training, or expertise is required.
In Juvenile Division, it is common practice to appoint an attorney to act as both
attorney and guardian ad litem for the minor child whose fate is at issue, leaving it to the
individual appointed to judge whether the roles conflict. This approach is occasionally
taken in Family Division.
The Rules of Profession Conduct contemplate the appointment of a separate guardian
ad litem when the child takes a position that appears to be contrary to his or her best interest.
R.P.C. §1.14(b). However, if there is both a guardian ad litem and an attorney for the minor
child, the attorney is not obligated to advocate the position taken by the guardian ad litem.
Schult v. Schult, 241 Conn. 767, 699 A.2d 134 (1997).
If the court appoints a guardian ad litem for the children your case, we recommend
that you ask the court to clarify the duties of person appointed.
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RELOCATION
Obtaining permission for a parent to relocate to another state with minor children may
be difficult. If the decision to relocate is made after a divorce, Ireland v. Ireland, 246 Conn.
413, 717 A.2d 676 (1998) applies. Ireland places an initial burden of persuasion on the
custodial parent to make a prima facie case that the reasons for the proposed relocation are
legitimate - i.e., not simply to preclude contact between the children and the other parent.
Once this burden is met, the burden of persuasion then shifts to the non-custodial parent to
show that the proposed move will not be in the best interests of the children. The factors
which the court must consider in determining whether the permit the proposed relocation are:
Each parent's reasons for seeking or opposing the move
The quality of the relationships between the child and the custodial parent
The quality of the relationships between the child and the noncustodial parent
The impact of the move on the quantity and quality of the child's future contact with
the noncustodial parent
The degree to which the custodial parent's and child's life may be enhanced
economically, emotionally and educationally by the move
The feasibility of preserving the relationship between the noncustodial parent and
child through suitable visitation arrangements
If the relocation issue arises at the time of initial dissolution, Ireland’s burdenshifting scheme does not apply. The proper standard is best interests of the child. The
Ireland factors may be considered, but they are not mandatory or exclusive. Ford v. Ford,
68 Conn.App. 173, 789 A.2d. 1104 (2002).
HEALTH INSURANCE FOR CHILDREN
If there are minor children, it is important to get an order regarding health insurance
coverage for the children. Generally, the non-custodial parent maintains this insurance as
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available through his or her place of employment. To the extent the opposing party has to
pay higher premiums in order to obtain dependant coverage, that can be taken into account
in the child support, alimony and/or property distribution awards. If our client is employed,
we generally agree that our client will also obtain insurance for the children as available
through the place of employment. How unreimbursed medical expenses are to be paid must
also be dealt with. If health insurance coverage for a child is ordered by the court, C.G.S.
§46b-84(d) requires that the court enter other specified orders to facilitate payment of claims.
A court form, JD-FM-125, "Order to Maintain Health Insurance of Minor Children" should
be filled out and submitted to the court for signature by a judge or clerk. (Sample 37).
CONTINUED HEALTH INSURANCE FOR EX-SPOUSE
As stated above (page 24), one party can be required pendente lite to maintain health
insurance coverage for the other spouse. Once the dissolution is granted, the ex-spouse can
remain eligible to participate in the other party's health insurance plan. Under C.G.S. §38a538, a spouse who is a member of the other spouse's group health insurance plan remains
eligible for continued coverage under the plan, except disability income coverage, for 156
weeks (3 years) after the dissolution of the marriage, or until the spouse becomes eligible for
benefits under another group plan. The premium cost is quite high, which makes payment
for such continued coverage an issue.
Attorneys dealing with employer-provided health care plans in a dissolution must be
familiar with both state law and federal law (COBRA) regarding continued coverage after
a divorce. See Maxine Aaronson, "Keep Your Client Covered with COBRA," Family
Advocate, Fall 1990, Volume 13, No. 2, pp. 18-21. The Family Advocate is a publication
of the American Bar Association's Family Law Section.
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LIFE INSURANCE
The automatic pendente lite orders require parties to maintain existing life insurance
coverage naming the spouse and/or the children as beneficiaries. Practice book §25-5(a)(8).
The court can order its continued maintenance in the final decree. Where there are child
support and/or alimony orders, maintenance of life insurance by the obligor can be used as
security for these payments. An obligor can be ordered to purchase life insurance, but only
upon evidence of insurability and cost. Michel v, Michel (II), 31 Conn.App. 338, 624 A.2d
914 (1993). Absent alimony or child support issues, the value of any life insurance policies
is a marital asset subject to distribution. See C. Terrence Kapp, "How to Get More Out of
Life -- Insurance, That is: Tips on ensuring beneficiary protection after divorce," Family
Advocate, Fall 1990, Volume 13, No. 2, pp. 22-28.
DISTRIBUTION OF ASSETS AND LIABILITIES
At the time of entering the dissolution decree, the court may assign to either party all
or any part of the estate of the other. C.G.S. §46b-81. The factors to be considered by the
court are listed in that the statute and are similar to the factors determining alimony.
Assets.
The spouses of our clients are generally low-income and do not have extensive assets.
However it is important to find out what assets do exist and deal with them. The types of
assets we most commonly see are (1) personal property; (2) marital home; and (3) pension
plan.
Personal Property
In many of our cases, the parties have been living separately for a substantial period
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of time, and have made their own arrangements with respect to personal property. If personal
property is at issue, make a list of the items at issue, and try to help the parties come to an
equitable resolution. Don't forget to ask your client about the existence of items such as
safety deposit boxes, coin/stamp/antique collections, baseball card collections, etc. One
possible technique for resolving disputes regarding personal property is to let each party take
turns picking an item. The party who goes first can be determined with the flip of a coin.
Pictures can be dealt with this way, or by duplicating all of them. This procedure allows the
parties to take into account their subjective needs and desires, which can be very difficult to
communicate in court.
Another principle that can be used where there are children is the primary physical
custodian should get items used by the children (e.g., the furniture, television and VCR).
Usually, the husband gets the exercise equipment, the tools, and the stereo and, if requested,
some cookware, kitchen utensils, and linen.
Marital Home. It is common that the primary physical custodian of the children is
awarded the use of the home until the children reach their majority, sale of the house, or the
death or remarriage of the custodian. Beyond that, there are several issues that need to be
resolved if there is a marital home; such as the allocation of expenses associated with the
maintenance of the home, allocation of equity, the possibility of a buy-out. It is generally not
good practice to leave the parties as joint owners after they are divorced.
Pension Plans The Connecticut Supreme Court has held that pension plans are
property subject to equitable distribution. Krafick v. Krafick, 234 Conn. 783, 663 A.2d 548
(1995). This is true for unvested as well as vested pension plans. Bender v. Bender, 258
Conn. 733, 785 A.2d 197 (2001). If the opposing party has an interest in a pension plan (or
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some other type of deferred compensation plan such as profit-sharing, stock option, 401K,
thrift plan, TSA, or individual retirement account) you must determine through discovery the
value of the plan and how the plan works, so as to be able to negotiate and/or argue for a
distribution favorable to your client. Qualified pension plans are divisible by Qualified
Domestic Relations Order (QDRO). You should ask the spouse’s employer for a sample
QDRO. If a sample is not available, a good introduction to QDRO’s is Finley, Assigning
Retirement Benefits in Divorce, published by the American Bar Association Section on
Family law. A pension plan is often the only asset of value in cases we refer.
Liabilities.
A final dissolution order should distribute responsibility for the liabilities of the
parties. Typically, each party agrees to assume liability for debts incurred for his or her own
benefit, as shown on their respective financial affidavits. Liability for debts incurred for the
general benefit of the household or for the care of the children should be divided according
to the ability to pay. Each party should agree to hold the other party harmless for the debts
he or she agrees to pay. While a "hold harmless" clause does not by law prevent a creditor
from pursuing a debtor who has been held harmless in a dissolution decree, many creditors
will in practice stop pursuing a debtor whose former spouse has held him or her harmless for
the debt.
Property distribution orders and orders requiring the payment of debt can be
discharged in bankruptcy. Alimony and child support orders are not dischargable in
bankruptcy. Whether a particular order is a property distribution order or an alimony order
is a question of fact for the bankruptcy court. Sometimes the bankruptcy will refer this
question to the family court. Consider stating in the agreement or in your requested orders
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that the payment of debt requirement imposed on the opposing party is in the nature of
alimony.
Discharge of debt in bankruptcy after an order requiring payment in a dissolution
decree may be considered contempt of court. If your client is or should be considering
filing for bankruptcy, consider placing a statement in the agreement or requested order that
discharge in bankruptcy of any debt for which he or she is obligated shall not be considered
contempt of court.
If the defendant has not appeared, you should ask the court to order that your client
be held harmless for any debts incurred by the defendant. This is important because both
spouses are liable for certain debts incurred during the marriage no matter by which spouse
incurred. C.G.S. §46b-38.
EDUCATIONAL SUPPORT ORDERS
If there is a child of the marriage who is under the age of 23, then the court must
determine whether or not to make an order regarding payment for higher education or for a
private occupational school. The provisions of C.G.S. Sec. 46b-56c should be reviewed
carefully, as there are many technical requirements.
If the child or children are still young, and/or if the parents are not sure what their
financial capabilities will be at the time the child is ready for post-secondary education, then
the best course is usually to ask the court to retain jurisdiction for educational support orders.
If a parent is requesting a specific order, then the court must make a finding that it
is more likely than not that the parents would have provided support to the child for postsecondary education if the family were still intact. The court must then consider all relevant
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circumstances relating to the parents’ financial situations, the child’s ability to pay, and the
availability of financial aid.
Educational support orders are modifiable, and do not extend beyond the child’s 23rd
birthday or the acquisition of a bachelor’s degree, whichever occurs first. The orders can be
entered pendent lite or at the time of judgment.
The parents can waive an educational support order if the court finds that the parents
fully understand the consequences of the waiver.
ASSIGNMENT FOR FINAL HEARING
The final hearing in a divorce case cannot be held until at least 90 days have elapsed
from the return date. For purposes of assignments for final hearing, there are three kinds of
cases: uncontested, limited contested, and fully contested. See Practice Book §25-49.
(i) An uncontested matter is a case in which no aspect of the matter is in dispute.
This includes cases in which the defendant has not appeared, as well as cases in which the
parties have reached agreement. As soon as you know that a case will be uncontested, you
can request a final hearing date by submitting case management form with section III
completed. However, in most jurisdictions not all dates and times are available. Check
with your family caseflow coordinator or clerk’s office for available days of the week and
times.
(ii) A limited contested matter is a case in which the disputes are limited to monetary
awards, real property, or personal property. The case management conference is an
opportunity for counsel and parties to determine what disclosure is needed, request
scheduling orders, set a date for a pretrial conference with Family Relations, etc. However,
there is nothing to prevent you from doing these things prior to the case management date.
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See, e.g. Practice Book §25-32 on mandatory disclosure. If a limited contested matter is not
resolved after such settlement attempts as the court requires, the case will be assigned a
hearing date. Ask the clerk how such assignments are made in your locality.
(iii) A contested matter is a case in which child custody, visitation rights, paternity,
or the grounds for the actions are in dispute. Monetary or property matters may also be in
dispute. You should try to determine pendente lite if custody or visitation will be contested,
at which time you should file motions to request a Family Relations mediation or evaluation.
If custody is contested, the minor child or children must be represented by counsel at trial.
G.S. v. T.S., 23 Conn.App. 509, 582 A.2d 467 (1990).
DOCUMENTS TO BE FILED AT THE FINAL HEARING
You must have the following documents prepared and ready to hand to the judge at
the final hearing:
1. Financial Affidavit. Practice Book §25-30(a) (Sample 12).
2. Affidavit Concerning Children. C.G.S. § 52-231a, Practice Book §2-57 (Sample
8).
3. Dissolution of Marriage Report C.G.S. § 46b-68, Practice Book §25-58, JD-FM-
181. (Sample 38). These forms are available at the clerk's office.
4. Written proposed orders. Practice Book §25-30(b). If there is not an agreement,
note the time requirements for serving and filing these prior to the final hearing. Written
proposed orders are not required if there is an agreement, but we recommend that that you
prepare them, review them with your client, and file them to protect against omissions by you
or the clerk.
5. Certification of completion of Parent Education Program (not required in all
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jurisdictions). Practice Book §25-5(a)(6). (Sample 36).
6. Child Support Guidelines Worksheet (not required by all judges).
7. A military affidavit, required if the defendant has not filed an appearance. Practice
Book §17-21; Servicemembers Civil Relief Act of 2003, 50 U.S.C. §501 et seq., particularly
§520. (Sample 39)
If your client knows that the defendant is not in military or knows facts about the
defendant that makes it impossible for the defendant to be in the military service (i.e.,
defendant disabled, defendant was never in military and is now over 40 years old, defendant
is an alien, defendant has been convicted of a felony, defendant is disabled, etc.), model your
affidavit after Sample 39-A.
If it is possible for the defendant to be in the military service, you will have to write
to each branch of the armed forces requesting information. See Sample 40. When you have
received a reply from each of the five branches of the armed forces, prepare a military
affidavit substantially in accordance with Sample 39-B. The affidavit should be signed by
your secretary or paralegal.
THE UNCONTESTED HEARING
Even if the matter is uncontested, a hearing is necessary for a dissolution. Usually,
the plaintiff testifies to the allegations in the complaint. A sample list of questions for an
uncontested hearing is attached as Sample 41. Note that most of the questions are phrased
so that the answer can be a simple "yes.” Always review the questions with your client,
beforehand.
If there is a nonappearing defendant and no written agreement, you should prepare
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a list of requested orders.
If the parties have entered into an agreement, the agreement must be reduced to
writing and signed by the parties. You will ask the plaintiff whether he or she understands
the agreement, thinks the agreement is fair and equitable, is satisfied with the advice of
counsel and wants the court to approve it. If there is no provision for alimony, you must ask,
"Do you understand that by not asking for alimony at this hearing, you are permanently
giving up the right to get alimony?"
End the questioning by going through the relief the plaintiff is seeking. Ask "Are you
asking the court to dissolve your marriage?" You should also ask the plaintiff about each
item of relief being sought. If there is written agreement, you can do this by asking whether
the plaintiff is seeking that the court order what is set forth in the written agreement. You
may also go through each item in the agreement.
If the court finds an agreement between parties to be fair and equitable, it becomes
part of the court file, and, if the agreement is in writing, it shall be incorporated by reference
into the order or decree of the court. C.G.S. §46b-66.
LIMITED CONTESTED AND CONTESTED CASES
(i.) Pretrial (Settlement) Conference
Under Practice Book §25-50(c), cases with contested issues will be assigned for a
pre-trial conference. Some family courts, such as Hartford, have set up "special master"
programs in which experienced family law attorneys attempt to help the parties settle
contested financial issues. You should consult the clerk or an experienced family law
practitioner to find out the exact procedure in the court you are in. If your case is fully
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contested, it may be sent to the Regional Family Trial Docket in Middletown where the
settlement conference is an all-day affair conducted by a special masters team consisting of
an attorney and a psychologist or psychiatrist.
How you present the case to the special masters or judge at pre-trial may effect the
settlement recommendation they will make. We usually present a one or two page written
summary of the relevant facts and financial circumstances. See Sample 42 for an example
of such a fact sheet. It is also useful to have an equitable premise as a starting point and to
present the special masters with a computation showing that the equitable premise, when
applied to the financial facts, leads to the result you are seeking.
Refer to Practice Book §25-30 for the list of documents that you will be required to
submit for settlement conferences and in advance of the trial if the case is not settled. In
particular, a financial affidavit must be filed within 30 days prior to the date of the final
hearing, a child support guidelines worksheet must be prepared and filed at the final hearing
if there are minor children, written proposed orders must be filed and served at least ten days
before any settlement conferences, and, if there has been a change in the claims for relief, an
amended complaint, answer or cross complaint must be filed at least 10 days prior to the date
of the trial. Again, the degree to which these rules are enforced may vary from judicial
district to judicial district.
(ii) The Trial Management Conference
The Regional Family Trial Docket and some judicial districts require a trial
management conference prior to trial. You may be asked to bring all or some of the
following: (1) written proposed orders; a list of contested issues, a list of proposed witnesses,
a brief summary of the testimony of each witness, the expected time of direct examination,
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and a list of proposed exhibits. You may be precluded from introducing an exhibit not on
your list of exhibits, calling a witness not on your list of witnesses, going beyond your
estimated time on direct examination, introducing evidence not relevant to a contested issue,
or introducing testimony from a particular witness beyond the scope of your summary.
REFERRAL TO A JUDGE TRIAL REFEREE
Under C.G.S. §46b-9, §52-434(a) and (b) and Practice Book §25-53, dissolution
cases may be referred to a judge trial referee under certain circumstances.
THE JUDGMENT FILE
After the final hearing, the attorney for the plaintiff (or the attorney for the defendant,
if the plaintiff is unrepresented) may have to prepare a judgment file. Practice Book §25-38.
In some courthouses, the clerks are now preparing judgment files on computer at the time
of the hearing. Prior Practice Book §453, which has been deleted, required that judgments
of dissolution of marriage state the date and place of the marriage and the jurisdictional facts
as found by the court upon the hearing. The judgment file should also indicate the names and
birth dates of the children who are issue of the marriage, and the specific relief being granted
and orders being entered. See Practice Book Form 507.1, JD-FM-120 (uncontested
judgments) and JD-FM-121 (default judgments). See Samples 43 and 44. If a written
agreement was submitted to the court, the written agreement may be incorporated into the
judgment file by reference. For further information see Volumes 7 and 8, Connecticut
Practice, Family Law and Practice with Forms by Rutkin, Effron and Hogan.
It costs $15 to obtain a certified copy of the judgment. The total cost is payable to
the Clerk of Superior Court. The cost for an non-certified copy is $10, but in many
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jurisdictions, the clerks will not release a non-certified copy, and so it may be necessary to
request a fee waiver for the certified judgment at the time of the final dissolution hearing.
It is possible to obtain a Certificate of Dissolution from the clerk’s office as proof of
the divorce within twenty days of the divorce, or immediately if the parties waive the right
to appeal. The Certificate of Dissolution does not contain any of the findings or orders of
the court.
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