Common Family Law Questions and Answers
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Q. Under what circumstances will the court permit me to relocate with my minor children?
A. After the final divorce judgment, a parent wishing to relocate with the minor child to a location that would have a significant impact on the existing parenting plan, must prove to the court three factors: 1) that the relocation is for a legitimate purpose; 2) that the proposed location is reasonable in light of such purpose; and 3) that the relocation is in the best interests of the child. In making its determination, the court must consider, but is not limited to: each parent's reasons for seeking or opposing the relocation, the quality of the relationships between the child and each parent, the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent, the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation, and the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements. The court may only enter orders as to the relocation of the minor child's residence, but may not prevent the parent from relocating. In the event a parent wishes to relocate with the minor child at the time of the initial dissolution proceeding, the court is guided by what is in the child's best interest but may also consider the factors set forth above.
Q. Will I be able to get court-ordered college support for my children?
A. The court has jurisdiction to enter educational support orders requiring a parent to provide support for a child who is over age 18 but under age 23 to attend post secondary school. If the child is under the age of 23 at the time of the divorce or judgment, the court may either: enter an educational support order, reserve its jurisdiction to enter such an order at a future time, or waive its jurisdiction to enter such an order in the future upon agreement of the parents. The court may not enter an educational support order unless it finds that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family had remained intact. If, at the time the divorce proceedings begin, the child is already in college or will be attending college in the immediate future, the court may enter an education support order while the divorce is pending. The cost of educational expenses covered by such an order is capped at the cost for a full time, in state student at the University of Connecticut.
Q. Are there any special procedural requirements to obtain a divorce in Connecticut?
A. Yes. Connecticut requires that one of the parties has been a resident of the state for at least twelve months prior to the dissolution but the divorce process may be started any time after residency is established. There is a 90 day waiting period before a divorce can be finalized. This waiting period runs from the return date (always a Tuesday) listed on the complaint for divorce. The divorce summons must be served by a Judicial Marshal at least twelve days before the return date. Once a divorce action commences, automatic orders go into effect. These orders are binding on the plaintiff upon the signing of the complaint and binding upon the defendant upon service. The automatic orders prohibit both parties to a divorce or custody action from selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of, without the consent of the other party or an order of the court, any money or property, whether held individually or jointly by the parties, except in the usual course of business and for customary household expenses. Parties with children are required to attend a six hour parenting education program. This class is held at various locations throughout the state for a cost of $ 125.00.
Q. How is marital property divided?
A. Connecticut courts have the power to assign to either party in a divorce all or any part of the marital estate. Connecticut is not a community property state. The court will consider several factors: the length of the marriage, the cause of the dissolution, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, special needs, future earning capacity and prospect for future acquisition of capital assets and income. Property owned by a party prior to the marriage or acquired by gift or inheritance during the marriage may be considered outside the marital estate and not subject to division.
Q. What happens to the marital home during the divorce process? Does one party have to move out during the pendency of the divorce action?
A. The marital home is a "marital asset" meaning both parties have an interest in it, regardless of whose name is on the title or how it was acquired. If one party leaves the marital home prior to or during the pendency of a divorce action, he/she does not lose his/her interest in the property. If the parties are still living together in the marital home when the action commences, neither party can deny the other use of the residence without a court order. This may be true even if one party has temporarily left the home. A party may file a motion for exclusive use of the marital home during the pendency of the action requesting a court hearing to determine who should occupy the home until the divorce is final. Although courts have discretion in awarding exclusive possession of the home, they are reluctant to do so without substantial justification.
Q. How big a factor is fault for the breakdown of the marriage in the distribution of property or the awarding of alimony?
A. The cause of the breakdown of the marriage will be considered by the court in making its financial awards. If the fault is substantial and contributes to the breakdown of the marriage, the court may compensate the party not at fault by giving that party a greater portion of the marital assets or more alimony than he/she would otherwise be awarded. However, it should be noted that the financial awards/distributions are not to be considered as a reward for the innocent spouse nor are they a punishment for the spouse at fault. The court will try to distribute the assets and available income where appropriate as equitably as possible taking into consideration all of the relevant facts.
Q. I have minor children. What are my custody options?
A. A custody award consists of legal and physical custody. Legal custody gives a parent decision-making authority regarding the child's education, religious upbringing, medical decisions and other major decisions affecting the welfare of the child. Sole legal custody gives one parent all such decision-making authority. Joint legal custody, the most common parenting arrangement among divorcing parents, has both parents sharing in the decision-making. With regard to physical custody, one of the parents may be designated as the primary residential parent, that is, the parent with whom the child primarily lives. The non-residential parent will have parenting access time. Parents may also have shared physical custody where the child spends equal or near equal time with each parent, essentially having two households. Split custody occurs when there is more than one child in common and each parent provides the primary residence of at least one of the children.
Q. How is custody determined?
A. The court will determine legal and physical custody, based on the best interests of the child if the parties are unable to agree on a custody arrangement. The court will take into consideration the totality of the circumstances in making its decision. In many disputed cases, the Family Services Unit, a division of the court, conducts a custody evaluation to assist the court with the custody determination. A family relations officer conducts home visits and contacts or interviews parents, the children, the child's teachers, neighbors, relatives and any other necessary parties, and reviews other relevant documents. Thereafter, the family relations officer prepares a report with his/her custody recommendations which is submitted to the court. Similarly, parents may agree to have a mental health professional perform a private custody evaluation. The court may also appoint an attorney for the children or a guardian ad litem to represent the children or the children's interests.
Q. How is child support determined?
A. Child Support is based upon the theory that both parents are obligated to support their children. Child Support is determined using the State of Connecticut Child Support Guidelines. The Guidelines are based upon economic studies regarding the cost of living with children within the State of Connecticut. Under the Guidelines, based upon the combined net income of the parties and the number of children the parties have, the total amount of basic child support is determined. For example, parents with a combined net weekly income of $ 2,000.00 and 2 children are obligated to pay $ 484.00 per week. Each parent's portion of the total support is calculated according to their portion of the total net income. In the above example, if each parent earns 50% of the total income of both parents, each parent's share of child support is $ 242.00 per week. In addition to basic child support, the guidelines also calculate the contribution that each parent should make toward the children's daycare and unreimbursed medical/dental expenses.
Q. Can the child support, custody or parenting time be changed after my divorce is final?
A. Yes. The court retains jurisdiction over child custody and support matters. Upon a motion to the court, child support may be modified upon a showing of a substantial change in circumstances of the parties, such as the loss of a job, substantial increase or decrease in income, inability to work due to health reasons, etc. There is a rebuttable presumption that any deviation of less than 15 % from the Child Support Guidelines is not substantial. Custody may be modified after a final decree has been entered, based on a material change in circumstances which changes the court's findings regarding the best interests of the child. In addition, custody may be modified upon a showing to the court that the custody order sought to be modified was not based on the best interests of the child when it was entered.
Q. Will I be able to receive alimony? How is alimony determined?
A. Unlike child support, alimony is not determined by a specific formula. Either party may seek alimony, but neither is guaranteed to receive it. The court considers several factors in determining an alimony award: the length of the marriage, the causes for the dissolution or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. Alimony is tax deductible to the spouse paying it and is taxable to the spouse receiving it. If the parties to a divorce do not seek alimony and no provision is contained in the divorce agreement, they will not be able to ask for alimony in the future regardless of their financial circumstances. The payment of alimony is usually terminated upon remarriage. It may be modified, suspended or terminated upon the cohabitation of the ex-spouse receiving alimony payments, if it is shown that the party receiving the periodic alimony is living with another person under circumstances which have altered the financial needs of that party.
Q. Can I receive child support and/or alimony before the divorce is final?
A. Yes. The court may make temporary orders or "pendente lite" orders for the payment of child support and alimony. These orders may be modifiable during the divorce process, by either party if the financial situations of the parties change, resulting in substantial increases/decreases in the income of the parties, loss of employment or other special circumstances necessitating a change in the support or alimony orders.These orders do not survive the final divorce judgment.
Q. How are legal fees determined in a dissolution action?
A. Family law attorneys customarily bill on an hourly basis and require a retainer to start the case. The amount of time our firm spends on each case is charged against the client's retainer. If any funds remain after the conclusion of the case, they will be refunded to the client.
If you are facing a family legal matter, contact the Law Offices of Deborah R. Eisenberg, LLC. We would be happy to meet with you regarding your case and provide you with an assessment.