Dissolution of Marriage

This FAQ relates specifically to the law in the State of Connecticut, where divorce is referred to legally as "dissolution of marriage.", but the concepts will be similiar in most states which, like Connecticut, are technically a "no-fault" divorce state. That means that one need not prove marital "fault" in order to obtain a divorce. However, as noted below, marital fault may play a role in the court's financial award. As with any matter involving family law, the law differs from state to state, and you should only act upon advice given to you by an attorney with whom you consult, in an attorney-client relationship.

• Grounds
• Procedure
• Separation Agreements
• Discovery
• Jurisdiction
• Alimony
• Child support
• Child custody
• Assignment of Property
• Attorneys' fees
• Do I need a lawyer?

 

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Grounds

The grounds for dissolution are set forth at Conn. Gen. Stat. § 46b-40(c), and are:

1. Irretrievable breakdown
2. Living apart for 18 months with no reasonable prospect of reconciliation
3. Adultery
4. Fraudulent contract
5. Willful desertion for one year
6. Seven years' absence
7. Habitual intemperance
8. Intolerable cruelty
9. Life imprisonment or conviction of an infamous crime violating conjugal duty
10. Legal confinement for mental illness for five of the last six years

In almost all cases, irretrievable breakdown is the sole ground alleged, and it is legally sufficient. However, as noted above, occasionally multiple grounds may be alleged because marital "fault" is permitted to be taken into account in the court's assignment of property and alimony under Conn. Gen. Stat. § 46b-81 et seq. But proof of "fault" may be considered even when irretrievable breakdown is the sole ground alleged.

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Procedure

The dissolution action is commenced by filing a summons and complaint with the Superior Court in the judicial district where one of the parties resides. Conn. Gen. Stat. § 46b-45. The filing fee is $185, and the sheriff's fee for service of papers will generally be about $35.

The complaint sets forth the names of the parties, the maiden name of the wife, the basis of the court's jurisdiction, the names and birth dates of the minor children, the grounds, whether a party has received public assistance, and the relief requested. The court can award alimony, an assignment of property, child support, custody, restoration of the wife's maiden name, and any other appropriate relief.

Although the parties to a divorce action are denominated as "plaintiff" and "defendant," it really does not matter which party commences the action. Some attorneys suggest that there is an advantage to being the plaintiff because you get to tell your side of the story in its entirety first, although in practice it rarely makes much difference.

The complaint must be served on the defendant at least twelve days before the return date (a date specified by plaintiff's counsel), Conn. Gen. Stat. § 52-46, and must be filed in the clerk's office at least six days before the return date. Conn. Gen. Stat. § 52a-46a.

Connecticut has a 90-day "cooling off" period after the commencement of the action and before a final judgment can be rendered. Conn. Gen. Stat. § 46b-67. During the pendency of the divorce, the parties may require temporary alimony, child custody and support, a restraining order against abuse, and exclusive possession of the marital residence. The court is empowered to grant appropriate temporary relief. Conn. Gen. Stat. § 46b-64 et seq.

New Rules Effective October 1, 1997:

Effective October 1, 1997, Connecticut made dramatic changes in the procedural rules applicable to family matters. These rules are designed to streamline the process of divorce, although their real impact remains to be seen. Among other things, the rules provide for standing orders requiring each party maintain the status quo (i.e., prohibiting transfers of assets, termination of insurance, etc.) pending the final judgment in a divorce case (those orders are now automatic, even if neither party requests them), and providing for various case-management, automatic discovery and alternative-dispute-resolution procedures. Also, because there are so many pro se filings, new "check the box" forms have been promulgated and are available from the Superior Court clerk's office. The new rules have been incorporated in the Connecticut Practice Book at Section 1200.

Separation Agreements

Probably more than 90% of all dissolution cases are settled prior to trial in Connecticut. The traditional means of memorializing a settlement is a writing called a "Separation Agreement." This agreement, drafted by the parties' counsel, and then executed and acknowledged by the parties, provides for all of the financial arrangements (alimony, child support, real and personal property, counsel fees, etc.) to which the parties have agreed, as well as for the custody and visitation of children, waiver of rights in future property (including estate rights), and other matters. Click here to see an example of a simple separation agreement.

If the parties have settled their case by agreement, the case is claimed for the "uncontested" list, and a hearing is scheduled. At the hearing, the court inquires into such matters as jurisdiction, whether the grounds have been proven (which they always are!), and whether the agreement is fair and equitable to both parties in light of their resources and needs. Since public policy favors private resolution of disputes, the parties' agreements are almost always approved.

Discovery

Each party to a dissolution in Connecticut must make complete disclosure of his income, expenses, assets and liabilities. All of the traditional litigation discovery tools are at the disposal of the parties' counsel: interrogatories, depositions and requests for production of documents, among others. In most relatively simple cases, discovery is limited to exchange of tax returns and W-2 forms. Discovery of business proprietors and others who are in a position to conceal or manipulate their income may involve extensive (and expensive) procedures by accountants and actuaries.

Jurisdiction

Connecticut courts have subject matter jurisdiction when one of the parties has been a resident of the state of Connecticut for at least twelve months, or if one party was domiciled here at the time of the marriage and returned to the state with the intention of remaining permanently prior to commencing the dissolution action, or is the cause of the dissolution occurred in Connecticut. Conn. Gen. Stat. § 46b-44. As a general matter, where jurisdiction is based on residence, an action can be commenced immediately upon becoming a resident of the state, and the required twelve-month period need only be established at the time of the final judgment.

Personal jurisdiction is not required for a dissolution of marriage, since the court is deemed to have "in rem" jurisdiction over the marriages of residents of the state. However, the court must have personal jurisdiction over the defendant if financial orders are to be imposed on him or her.

All dissolution actions require that the defendant, even if absent from the state, be given notice and an opportunity to be heard. If the defendant cannot be found, a notice is required to be published in a newspaper pursuant to court order.

Alimony

Alimony may be awarded to either party. If no alimony is awarded at the final hearing, it can never be awarded thereafter. Conn. Gen. Stat. § 46b-82. Accordingly, many alimony arrangements call for $1 a year in alimony, in order to preserve the opportunity to revisit the amount. Usually, the payor spouse will wish alimony to be of short duration and non-modifiable either as to duration or amount, while the interests of the recipient are the converse. These are matters for the court's sound discretion, taking into account the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each party, the property settlement, and whether the custodial parent should work. In addition, the court may take marital fault into account.

Child support

Connecticut requires both parents to support their children in accordance with their respective abilities. Conn. Gen. Stat. §§ 46b-84, -86. The published guidelines are required to be considered in each case. For general information about child support, see the Child Support FAQ.

Child custody

When jurisdiction is present over the children, a dissolution decree must dispose of the issue of child custody.  Connecticut follows the "best interests of the child" standard is making a custody award. The child's preferences and the cause for the dissolution of the marriage may also be considered. Conn. Gen. Stat. § 46b-56.

In contested custody matters, an attorney may be appointed to represent the minor child, at the expense of the parents. Conn. Gen. Stat. §§ 46b-54, -62. Disputed matters are referred to the Family Relations Office for mediation and/or a custody study. Conn. Gen. Stat. § 46b-6 et seq.

Connecticut has a statutory presumption in favor of joint custody when the parents agree to it. Conn. Gen. Stat. § 46b-56a.

For general information about custody, see the Child Custody FAQ.

Visitation is generally arrived at using the same "best interests" standard applicable to custody.

Assignment of Property

Connecticut is a pure "equitable distribution" state - all property of the parties is subject to distribution in a dissolution action (i.e., there is no statutory exemption from distribution for the pre-marital or "separate" property of the parties). There are twelve factors which the court will consider in dividing assets: the length of the marriage; the causes for the dissolution of marriage; the age, health, station, occupation, amount and source of income; vocational skills; employability; estate; liabilities and needs of each of the parties; the opportunity of each for future acquisition of capital, assets and income; and the contribution of each of the parties in the acquisition, preservation or appreciation value of the assets. The court also must consider the value of the homemaker's services in dividing assets. In marriages of relatively short duration, the court will often attempt, as nearly as possible, to restore the parties to their pre-marital financial state. In relatively long marriages, the property distribution usually is closer to 50-50, although that result can vary widely depending on the court's analysis of the twelve factors.  The recent decision of Judge Tierney in Wendt v. Wendt is an exhaustive discussion of this subject area and required reading for attorneys who practice in this field.

Attorneys' fees

Either spouse may be required to pay the counsel fees and disbursements of the other spouse, based on the same factors to be taken into account in making an award of alimony. Conn. Gen. Stat. § 46b-52. Generally, a party with enough funds to pay his or her own attorney will not receive an award of counsel fees; however, the provisions of this statute make it possible for the non-monied spouse to recover counsel fees from the monied spouse in a proper case. Never fail to consult an attorney simply because you do not have the immediately available funds to pay a retainer.

The cost of hiring an attorney varies based on the time expended, the issues involved, the difficulty of the matter, the results achieved, and any extraordinary time or demands placed upon an attorney which would prevent an attorney from representing other clients. Of these factors, the time expended is generally the most important. Most attorneys will require that a retainer be paid at the time of retention. Every attorney in Connecticut should have a written fee agreement with his clients.

Do I need a lawyer?

Having a lawyer is always a good idea. However, many people feel they cannot afford a private attorney. Matrimonial disputes are sometimes complex and often depend on factors that a layman would not consider. Moreover, closeness to the subject matter makes an objective presentation of evidence nearly impossible. If you cannot afford a lawyer, often there are resources available to you at state expense. Check with your local Connecticut Legal Services office or the court clerk.

About Hilary B. Miller, Esq.

Send e-mail to Hilary B. Miller, Esq.: info@ct-divorce.com

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