What Has The Guardian Been Doing? GAL Disclosure in Divorce Proceedings

In contested child custody matters, it is common for a court to appoint a Guardian ad litem to represent the interests of minor children for that particular lawsuit or proceeding.  While Guardians ad litem (or “GAL’s”) are often attorneys, they are less frequently psychologists, social workers, or other individuals with experience representing children’s interests. The GAL’s duty is to speak on behalf of the “best interests” of the child, without necessarily being bound by a child’s expressed preferences, even when those preferences conflict with the perceived “best interests” of the child.

By contrast, a lawyer advocate for a minor child in a custody proceeding, referred to in many jurisdictions as an Attorney for the Minor Child(ren) (or AMC), is just that: a lawyer who is appointed and charged with vigilantly representing and advocating for his or her clients’ interests, including those positions which are expressed to the lawyer in the context of privileged attorney-client communications.

The fact that a GAL – who may, in fact, be a lawyer – does not enjoy the same attorney-client privilege with the minor children he or she represents creates certain significant issues with respect to discovery and document disclosure in the context of custody litigation.

In a recent decision on an issue of first impression, a Connecticut Superior Court determined that an attorney GAL’s entire file (including correspondence, emails, and handwritten notes) be disclosed to the parties over the objection of that GAL, who asserted the protections of the attorney-client privilege and work product doctrine.

The net effect of that Court’s determination is essentially to permit parents (litigants) who are understandably concerned about the position, progress, and considerable impact of a GAL’s opinion on his or her custody claim, to gain unfettered access to a GAL’s file regardless of that person’s status as an attorney.  In custody cases where a GAL may ultimately testify as a witness and opine to a court regarding a minor child’s “best interests,” a preview of that GAL’s work product and interview notes may prove invaluable.

Attorneys armed with both experience and an understanding of applicable case law can best advise our divorce clients regarding custody evaluations, GAL involvement, and overall trial strategy.

Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Joint Legal Custody and Final Decision-Making Authority

Any custody proceeding relating to minor children includes the decision or determination regarding a parent’s participation in the legal custody of those minor children.  Legal custody, as contrasted with “physical custody,” relates not to where the children physically reside, but rather deals with which parent or parents make certain major legal decisions on behalf of a child until such time as the child reaches the age of majority.

Generally speaking, the legal decisions covered by the authority of “legal custody” consist of non-emergency medical decisions, educational decisions, and those relating to the child’s religious upbringing.

Joint legal custody, as defined by Connecticut General Statutes §46(b)-56a(a), is “an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”

In certain circumstances, whether by agreement of the parties or by court order following a hearing or trial, joint legal custody may be awarded with a catch known as “final decision-making authority.”  In some instances, perhaps where communication between the parents is strained or ineffective, a court may find it appropriate to require the parties to communicate and discuss a major decision in good faith, but may award only one party the ultimate decision-making authority if an impasse remains – essentially giving one party a tiebreaking vote.

In a decision released just this week, Connecticut’s Appellate Court stated that such an award of ultimate decision-making power remains consistent with a finding of joint legal custody, where the trial court enters orders including “any such custody arrangements as the court may determine to be in the best interests of the child” (C.G.S. § 46(b)-56(b)).  Citing its own 1991 decision, the Appellate Court has noted its continued rejection of the argument that ultimate decision-making authority by one party effectively constitutes an award of sole custody.

In its ruling, the Court affirms a custodial arrangement whereby the parties were compelled to attempt to agree in good faith on any major decision relating to the child, after which they were directed to resolve the agreement through mediation.  In that case, only where mediation did not produce an agreement was one party given the authority to exercise final decision-making – effectively, the tiebreak.  The Court noted that the construct and process did not prevent either party from meaningfully participating in the major decisions relating to the child, but rather, merely “provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied.”

Often in family law disputes, it takes creativity and a keen understanding of the parties’ interpersonal dynamics to arrive at solutions that not only benefit the minor children, but could also prevent future tension and litigation.

Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Child Visitation: Privileges and Limitations

Parties entering a custody dispute or a divorce proceeding often inquire about visitation privileges by the so-called “non-custodial parent” – that is, the parent whose home is not the primary residence of the minor child.

Entirely separate from the determination of legal custody (which relates to the parties’ arrangements for major legal decisions to be made for and on behalf of the minor child) is the subject of a visitation arrangement, also sometimes referred to as a “parental access plan.”  Regardless of which parent is awarded legal custody, a non-custodial parent has a right to visit with his or her child, although such visitation is not guaranteed to be unfettered and unrestricted in all circumstances.

In the best case scenario, the parties or their lawyers may arrange for “flexible, liberal rights of visitation” for the non-custodial parent, which might mean that the parties work out their access schedule amongst themselves, rather than reducing the intricacies of a schedule to writing.  In some instances, the parties might follow a broad-brush, general guideline for visits and holiday scheduling which ebbs and flows according to the parties’ schedules and the child’s activities and needs.

On the other end of the spectrum, visitation by a non-custodial parent can be suspended, temporarily denied, or restricted in some fashion by a court if it is found that a parent’s visitation with a minor child would be adverse to that child’s best interest.  If it can be demonstrated in a court of law that a child’s personal safety, physical, mental, or emotional well-being, would be negatively and seriously impacted by visitation with a parent, it is likely that such a parent’s visitation will be severely limited, if not suspended entirely.

However, any restriction of a parent’s ability to spend quality time with his or her child is not taken lightly – not by attorneys, and not by the courts.  Before taking such drastic measures, courts will look for compelling, factual predicates based on very specific, presently existing circumstances.  Before any type of restriction on visitation, a non-custodial parent has a right to a full evidentiary hearing, an opportunity to present and cross-examine witnesses, and a chance to argue to a court that the custodial parent has not established that continued, unlimited visitation would be injurious to the minor child’s best interests.

There are limited situations in which courts deem it appropriate to deny visitation entirely; others in which visitation is restricted in time, place, or manner; still others in which visitation is required to be supervised by a third party, such as a family member or an independent agency.

Obviously, acts or omissions by the non-custodial parent which have directly impacted the child (such as cases of physical abuse, or outright neglect for the child) are looked at most critically and could potentially result in the most drastic of remedies to protect a minor child.

Of course, there are certain other factors which could – in isolated cases – result in restricted visitation by a non-custodial parent.  Violence or the threat of violence on the part of the non-custodial parent will be considered as an important factor, provided the evidence offered is competent and survives judicial scrutiny.  In very extreme cases only, a mental illness or a psychiatric condition could impact visitation time, but only where it is established, proven, and accepted by a court that there would be harm to the child as a result of the illness if visitation were to take place.

More commonly, issues concerning substance and/or alcohol abuse could and may impact visitation by a non-custodial parent, especially where the behavior is found to be likely to jeopardize a minor child’s welfare.  Even in these cases, with the best interests of the child in mind, courts are likely to favor a continued, healthy and loving relationship between the minor child and his or her non-custodial parent, provided that the visitation environment is such that the child will not be harmed or put at risk.

Whether a visitation arrangement will be “flexible and liberal” or heavily regulated is dependent on the factual circumstances of each case, the weight of the evidence, the credibility of the parties and their witnesses, and what is determined by a court to be the best interests of the minor child or children.  A legal advisor in this area is challenged not merely to advance a client’s desires, but to simultaneously consider and protect the welfare of the minor child (and the parent-child relationship) when advising his or her client.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

When Tug-of-War is Not a Game: Relocation After Divorce

Lawyers often find ourselves telling clients that their divorce is never truly “final” when there are children involved.  Regrettably, many of the symptoms that bring spouses to our offices in the first place –the arguing, the conflict, certain confines and restrictions – may continue to exist on some level even after the lawyers have done their jobs and a judge signs a final judgment, especially when the divorcing parents are now entrusted with the responsibility to co-parent young children, from different homes, and from new perspectives.

Nowhere is that more evident than in cases where one spouse seeks to relocate with the minor children to a new state – perhaps hundreds of miles away from his or her former spouse, and his or her former life.

Developments in the law even in the past few years have refined the processes and legal burdens for spouses seeking to take their children to another location, perhaps to be closer to extended family or a support network, nearer to a new job or opportunity, or for other economic reasons.

The legal burden in Connecticut now rests squarely upon the parent seeking a relocation to prove to a court (assuming the other parent objects to the move) that the relocation of the children is for a legitimate purpose, that the relocation is reasonably related to achieving that purpose, and that the move and resulting transplantation is truly in the best interests of the minor child or children of the marriage.

In reaching its determination, a court will likely hear evidence from each parent, relevant witnesses and/or healthcare professionals or experts, and likely a court-appointed guardian to represent the child’s interests in such a proceeding.  Among other things, a court shall consider each parent’s reasons for seeking or opposing the relocation, the relationship each parent has with the subject child or children, any potential enhancement that the relocation might have on the child’s life or development, the feasibility of visitation or maintained contact between the non-relocating parent and the child notwithstanding the geographic shift, and the impact the relocation would have on the relationship between the child and the parent who might be left behind.

These types of post-judgment proceedings are often painful for both litigants and are driven by facts as much as the law – facts which could and often do have nothing whatever to do with the underlying reasons for the divorce itself.  A parent involved in a post-judgment relocation dispute in Connecticut must prepare for a contentious legal battle where personal convictions, risk tolerance, and emotions can and will be tested.

We advise clients in these cases not merely to weigh their legal options, but to evaluate and assess the best interests of their children who are innocently caught in perhaps the cruelest game of tug-of-war imaginable.  We prepare our clients and assist them in structuring their case for the most favorable presentation of facts and evidence to support their legal position.  Those considering or faced with the specter of a relocation petition should retain counsel who are both well-versed in the law and attuned to the reality and repercussions that litigation brings to children’s lives – sometimes years after the ink has dried on a divorce decree.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Parental Alienation in Custody Disputes

Every lawyer who handles divorce cases recognizes that grimace.  We often see the reaction from other lawyers and people in everyday conversation when they hear we litigate divorces and custody matters.  Most often, the grimace is followed by a verbal recognition of how “draining” or “difficult” the business can be.

Invariably, that reference relates not merely to the two individuals who have decided that their marriage is no longer viable; rather, the fallout often squarely lands on the children caught in the midst of a custody battle during a divorce – or sometimes, in a residential relocation petition by one parent in the years after a divorce.

Where young children are involved, divorce lawyers regrettably see a frequency of parental alienation by one party or the other, an active or passive attempt by a divorce litigant to cause the children of that union to align against his or her soon-to-be ex-spouse.

Parental Alienation Syndrome consists of thoughts and behavior that can develop in a child of separated parents wherein the custodial parent causes a child, through repeated manipulation and restriction of visitation and access to the other parent, to unjustifiably fear or have anger towards the other parent.  Also referred to as “hostile aggressive parenting,” the syndrome essentially deprives a young child of his or her ability to be loved by – and show love for – both of his parents, unconditionally.

The syndrome manifests itself in our cases in many forms.  As lawyers, we have seen parents who file false police or DCF reports against the other parent to force an arrest or an ejection from the marital home.  We sometimes learn of a parent who loudly disparages the other within earshot of the minor children.  We often deal with litigants who unjustifiably attempt to “micro-manage” all aspects of visitation with the other parent, to the extent where the parental access – and the parent-child relationship itself – is materially (if not irreparably) harmed.

In divorce litigation, it is the attorneys’ task to dispassionately assess the evidence for and against our clients, to give sound advice, and to pursue legal remedies aggressively where other avenues have failed.  Protecting the rights and psychological well-being of children caught in the middle of litigation is, and must be, of the utmost concern.  At every turn, we seek to advise our clients of the perceived benefits, risks, and consequences of the lawsuit in which they are involved, lest they lose sight of the most valuable assets of their marriage: their children.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Defeating Governmental Immunity: Navigating the Uphill Climb

Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature.  For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.

Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).

Section 52-557n, however, contains its own pitfalls for prospective plaintiffs.  The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.

The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person.  What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task which required an exercise of judgment on the part of the town employee.

Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall.  The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area.  Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.

Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building.  In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees was required to be exercised to keep those steps free of snow and ice.  On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.

When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.

An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.

A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury.  While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial.  With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment.  Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.

An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements.  A trusted, informed advocate is essential to place such a claim in the best possible legal position.  The invitation is open to consult with attorneys at our Firm who are experienced in this type of civil litigation.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Domestic Violence and Divorce Litigation

By virtue of executive proclamation, the month of October is Domestic Violence Awareness Month in Westport, Connecticut.

As noted by Westport’s First Selectman Gordon F. Joseloff, “Domestic violence should not happen to anyone.  There is no excuse for abuse.  It is not a family business, and should never be considered nor treated as a socially-acceptable behavior.”

Indeed, domestic violence is a crime, and is frequently the basis for (or perhaps a symptom of) divorce proceedings.  More and more, in the field of divorce litigation, our lawyers handle the complex matters which relate to incidents of abuse within the home – including those issues relating to the criminal prosecution itself as well as the ongoing security of the victim.

At our firm, we have decades of experience dealing with divorces, restraining order petitions, and criminal litigation – often in situations where the three matters run concurrently.  We are similarly experienced with those unfortunate circumstances in which false allegations of criminal abuse have been improperly levied to gain advantage in divorce proceedings.  We handle all types of divorce and child-custody matters, including post-judgment matters, in Westport, Fairfield, Greenwich, and the entire Fairfield County area.

At every turn, our lawyers aggressively seek to advance the rights of the innocent, to protect the victimized, and to correct injustice.

For more information and a confidential consultation on your family law matter, please call our firm or email: hdmurphy@mayalaw.com.

Year End Employment Contract Bonus Payments in Connecticut: Enforceable Promises?

Employment Contracts in Connecticut: When is a promise to pay a year-end bonus enforceable against an employer?

Given the down turn in the economy, millions of employees recently lost their jobs at the end of last year. Many of those jobs were based upon a compensation structure including a base salary and a bonus to be paid at the end of the year, or early this year, as in now. If you are one of those individuals who recently lost your job, you are probably wondering whether you are entitled to the bonus you thought you were promised. The Connecticut Appellate Court recently answered this question in favor of employees.

Here are the facts of the case recently decided. An employee worked for a small Connecticut employer for several years. At the outset of the employment relationship, the employee agreed to accept a lower salary in consideration for the employer’s promise to pay a year-end bonus. This arrangement continued for several years. Eventually, the employee left the firm and the employer decided to pay only his base salary, but no year-end bonus. The employee sued.

In the lawsuit, the employee alleged breach of contract and wrongful withholding of wages. After trial the court entered judgment for the employee on the breach of contract count awarding damages.  In reviewing the case, the Connecticut Appellate Court found that the trial court properly looked at the employment contract, and parole evidence – circumstances outside of the employment contract - to determine the appropriate compensation, including a bonus payment, for the employee during the last year of his employment.  The Connecticut Appellate Court determined the parties entered into a written employment contract setting forth the criteria upon which annual compensation would be based and therefore, the employee had a viable claim to a bonus payment.

The Court found the written employment contract only set forth the timing and basis for calculating the amount of annual compensation. The written employment contract did not set forth the expression of the parties intent as to the timing, form and amount of payment, which are essential terms to an employment contract. The trial court concluded that the employer had agreed by either words or deeds pursuant to the compensation clause in the contract to pay a bonus to the employee for that portion of the year the plaintiff was employed with the employer. The Appellate Court further found that even though the employer and the employee were indefinite as to the amount of the bonus, this did not render the bonus promise unenforceable. The employer’s promise of a yearly bonus was supported by the consideration of the employee accepting a lower salary throughout the year.

The Appellate Court also reversed the trial court and found that the claim for wrongful withholding of wages should not have been dismissed. The Court determined that under the employment agreement the bonus could have been classified as wages under Connecticut Labor Law.

If you have any questions regarding this article, or would like to discuss an employment contract, severance package, non-competition agreement, non-solicit agreement, or any other issue related to your employment, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

 

 

Divorce: Taking the First Step….How to Hire and What to Expect from a Divorce Lawyer in Connecticut

     Every week, I spend part of my days – when not in court, writing letters or motions, sending emails, or on the telephone – meeting with people I have never previously met, sitting at a table while they tell me how their marriage has fallen apart.  In each of those meetings, the person across the table is considering hiring our law firm to represent him or her as an advocate, a guide, and a legal counselor through the difficult process of divorce litigation.  Despite the very different paths that bring those individuals to our conference room, most divorce client prospects have common goals in their search for an advocate.

     I often think of what it must be like on the other side of that table, to be the person looking for a lawyer with the right expertise, attitude, experience, skills, and temperment  to be a guide through troubled times.  The comparisons to the non-legal world, however, are scarce.  In so very few professions is the personal connection to the client so very vital to the integrity and viability of the relationship.

     From the moment a client walks into our firm for a consultation regarding divorce, my main priority is twofold: firstly, to offer comfort and a solid basis for trust, and secondly, to determine why it is that this prospective client is either seeking divorce or finds themselves defending an action filed by their spouse.  I try to determine for myself, from the outset, whether a total dissolution of the marriage is what this person wants, or whether they are “considering their options,” for example, trying to envision what a divorce would mean for them financially.  A dissolution action is a means to no other end than ending the marriage – a client who does not understand this concept is embarking on a perilous journey.  In addition, at the forefront of my approach is the notion that the selection of an attorney for a divorce matter (much like choosing an attorney to defend against criminal charges) is not only the acquisition of an advocate, a fighter, a trusted advisor…but in many ways, is the selection of a client’s surrogate “best friend” for the next 6-8 months, year, or longer.  If the chemistry is present, both the attorney and the client will know it within the first several minutes of the consult.  For those looking for legal counsel, they must ask themselves if the attorney is truly listening to them.  Is he or she engaged in the conversation?  Does the attorney seem to want to “run the show” under any and all circumstances, or is he attuned to the desires of the client, and willing to offer advice and counsel?  Will the attorney be flexible where necessary, and aggressive when needed?  Does he or she have the style that the client prefers?  Does he or she seem like a person with whom the client could have healthy disagreements, discussion, and accord?  In that first consultation, if the client (or the attorney, for that matter) perceives there is a misconnection or a communication problem, it cannot be and should not be ignored.

     A mentor of mine, also a trial lawyer, once compared the selection of a prospective juror to picking a person one would like to chat with at a cocktail party.  You would like to have things in common, so that conversation doesn’t go stale; you understand each other, and you could fall back on one other when the rest of the party turns out to be a disaster.  Choosing an attorney in a divorce action – and for that matter, choosing to represent a client in that type of capacity – goes far, far beyond that standard.  You can expect the relationship to be tested, to be challenged, to be invigorating, inspiring, rewarding and difficult – often at the same time.  A solid foundation, often formed during that initial consultation, will and should be the basis for sustaining the attorney-client relationship throughout the often emotional fray to come.  Beyond finding comfort in an attorney’s legal abilities and experience (while these are very important indeed), a client should feel able and comfortable to speak about his or her mental health, childhood, details of the marriage, and motives – all without concern that the attorney will pass judgment on any level.

How long will the process take?

     Clients almost invariably ask how long the process will take.  The disheartening news for those looking for a quick answer is…it depends.  On the one hand, clients can expect a battle of a year or (sometimes substantially) more in cases in which custody is contested, custody evaluations are ordered and a Guardian ad Litem is appointed to represent the best interest of the children, or where there are complex business valuation issues to be determined by experts.  On the other hand, where custody disputes are nonexistent or relatively minor, and where neither party raises issues of fault as related to property distribution or alimony, it is possible to negotiate a settlement agreement within a few months.  Much depends on the wants and expectations of the client, as well as the ability of the lawyer to advance those interests in an effective manner.

What if we kiss and make up?

     It is important that every client retaining our firm understands the legal process they are about to undertake, as well as having a recognition that there is a legal mechanism for stalling the divorce to work on the marriage (to a point) – and that they can, of course, withdraw the action at any time.  This type of discussion, however, goes to the commitment that a client must have to the ultimate goal; if he or she is already thinking about reconciliation or withdrawal of the action, he or she must also realize that psychologically and otherwise, merely the filing of the divorce action itself may well cause irreparable damage to the marriage.  Most often, if a prospective client is sitting in our office, he or she is ready to proceed.  Again, the client has to be true to himself or herself, and the prospective attorney is charged with encouraging the client to clearly state his or her goals and priorities.

What happens first once we decide to do this?

     Once a client has decided to file for a dissolution, he or she can and should expect the retained lawyer to act as quickly as is required to start the action.  If the circumstances justify immediate action for any reason, an effective counselor should be able to have a summons and complaint – together with any appropriate motions – served on the client’s spouse by a marshal in very short order.  Where time is of the essence for any number of reasons, it is not uncommon for our firm to meet a prospect in the morning, execute a retainer agreement that day, gather additional facts during the afternoon, and arrange for a state marshal to serve the spouse that very same evening.

     During the initial attorney consult, it is most important for a client to fully comprehend the Connecticut “automatic orders” for dissolution actions, and for the attorney and client to strategize concerning the impact of these orders once a case is served and filed.  The orders, in essence, maintain the “status quo” during a divorce action; for example, prohibiting parties from incurring unreasonable debts, selling property, or locking the other spouse out of the house absent prior court approval.  I have found that it never hurts to “drum” these into a client during the first several meetings, even to go over the written summary of the orders in detail; all too often, one party or another will act (or consider acting) outside the orders months afterward only to claim that he or she did not know what was permitted and what was not.

 How will the case unfold, and what should I expect?

     An experienced attorney, given enough uncensored information by a client, can start to envision where the case may (or could) go, how the assets might be distributed by a court, whether there will be alimony and how much, and what a custody arrangement might be.  The answers to all these questions depend heavily on the facts, and weigh considerably on what claims will be made by the client’s spouse.  As I tell every client – you know your spouse better than I ever will.  You know the relationship better than I ever will.  Educate me.  Give me the information, and don’t forget the ammunition.

     Perhaps the most useful responses I will receive during a consult are given when I ask the questions: “If your spouse were sitting here across from me instead of you, what would he or she say about you?  What would he or she say about the marriage?  About the children?  About the finances?”  By truly and honestly considering the other spouse’s position – or by merely attempting to – a client can greatly assist his or her lawyer in preparing for the major (and perhaps minor) issues in a case, well ahead of the curve.  Notably, these types of questions often yield very different responses, depending on whether they are posed at the beginning or end of the consultation.  Indeed, the more a client is honest and candid regarding information, history, and his or her spouse during the initial stages of the representation, the more accurate an attorney’s prediction will be concerning the road – and the cost – ahead.

“This is a straightforward divorce.” 

     This phrase is one which should be carefully – and almost universally – avoided by both the client and the attorney during the initial consult.  For strategic reasons, a case – from the financial perspective or otherwise – may indeed be quite streamlined, almost “simple,” by the time it gets through the discovery process.  However, a client’s effort to simplify a divorce during the initial consultation – usually in an effort to minimize a forthcoming quote for counsel fees – does no one any good.  Choose your cliché: this business is not an exact science; nothing is straightforward; there is always a wrinkle.  Each statement is almost always true, and I would much prefer that my client offers full disclosure of potential problems, and more importantly, fully understands what is (or could be) in store for the litigation ahead.

     For this reason, I often ask a client to prepare a confidential marital summary for my use and as my work product throughout the litigation – with as much detail as possible, “even if it doesn’t seem important.”  Nine times out of ten, the summary yields something useful for negotiation purposes, even if the matter is never fully litigated.

Tricky issues, strategic decisions

     Some divorces have been brimming for years, and brought only to the surface by the one party who – perhaps due to the proverbial straw on the camel’s back – finally walked into a lawyer’s office after years of unhappiness.  Other cases begin with the virtual explosion of special issues that require immediate attention.  If custody is likely to be disputed, is there an emergent reason for that position?  Has the Department of Children and Families been involved, or have any criminal arrests been made?  Is this a domestic abuse situation and does the situation call for either criminal involvement or a civil application for relief from abuse (a restraining order)?  At this juncture, the client is faced with the reality of whether the litigation will start with a bang or a whisper.  Indeed, an immediate civil restraining order and motion for exclusive possession of the marital home (where a spouse is ordered to leave and reside elsewhere) – and perhaps even a criminal arrest – might be warranted under the circumstances.  In that case, any attorney or law firm has to be prepared to act quickly and aggressively, and the client has to be ready and willing to accept and trust in our advice as the situation rapidly unfolds.

For best results, be ready to go the distance

     If a prospective client is sitting with me in one of our conference rooms to discuss an impending divorce action, it is typically the case that he or she has thought this out, has discussed it with family members, friends, confidants, and perhaps even other lawyers.  What he or she needs now is not simply information (“what are my rights?”), general strategy, or empty promises (no lawyer worth his salt will make any promises in an initial consult).  What the individual truly needs is a person to trust, with the knowledge that such person has the skills, legal resources, experience, and capability to litigate the matter through to conclusion in the event that their spouse is unwilling to settle.  As I often remind my clients: if you want a mediocre result, you can engage in mediocre settlement dialogue, at any time, and even without a lawyer.  Only those lawyers who are prepared to go to trial are equipped to deal with the unreasonable spouse who refuses to give in – such as the husband who stops paying bills and hides his income, or the wife who denies visitation or changes the locks.

     A client looking for a divorce attorney has often been spurned by a spouse, and has in some fashion or another suffered a breakdown in communication within the home.  It is my hope for each of my clients with children that the communication gap repair itself over time, in the best interests of those children.  In the interim, however, my goal as a divorce attorney, as a counselor, as an advisor, is to rebuild communication and trust for that person within the four walls of this law firm, so that together we can use the law to our advantage, in order to achieve the best possible settlement or result after trial.

     My non-lawyer friends often ask if this type of work is depressing or draining.  My view of family law is much like representing clients in criminal matters.  People come to us during a true low point in their lives, where things often appear as though they cannot possibly get much worse.  If we do our job well, if we honestly assess the client’s priorities and aggressively pursue his or her goals within the confines of the law, we can rest assured that a client will leave the situation and the litigation in a substantially improved position.  When a client returns to us in the future or refers a friend or family member, we have met our own standard for representing a client effectively.

Assets Protected From Creditors in Connecticut

            In today’s economy more and more people find themselves having a hard time paying the bills and avoiding late payments.  Still others have a problem with creditors chasing them for unpaid debts.  Now more than ever it is important for you to know what assets are protected from creditors and what are not.     

            Connecticut law provides some protection from creditors in a situation where your income or assets are subject to a court judgment or lien.  You can protect yourself in a variety of ways by planning ahead and consulting with a professional financial planner and an attorney.   Taking out liability insurance or setting up a corporate entity or trust for your property are examples of how you can shield your assets from future creditors.  However, there are some individual assets that are automatically protected from creditors.  Here is brief summary of the law in Connecticut: 

            A.            Wages    

            Once a creditor obtains a judgment against you, it can apply for an execution against your wages.  See Connecticut General Statutes, Section 52-361a.  Connecticut law does provide for some protection in this situation.   No more than twenty-five percent of an individual’s weekly disposable earnings may be subject to a wage execution.  The portion of disposable earnings subject to the wage execution is withheld and applied to the amount of the judgment.    In some cases, the maximum amount that can be withheld may be less depending upon the ratio between the individual’s disposable earnings and the hourly minimum wage in effect at the time of the execution. 

            B.             Retirement Plans

            Generally, retirement plans are exempt from claims by creditors.  Both IRAs and 401ks are protected assets pursuant to Connecticut General Statues, Section 52-321a. 

            C.             Personal Property

            Connecticut law provides a list of exempt personal property that creditors cannot claim an interest in pursuant to Connecticut General Statutes, Section 52-352b.  The list of property includes basics necessities such as apparel, bedding, foodstuffs, household furniture and appliances.  Items necessary for a person’s occupation or profession such as tools, books, instruments, farm animals and livestock feed are also considered exempt property.  Wedding and engagement rings are not subject to creditor claims as well.

            D.             Insurance and Government Assistance Payments

            Some insurance and government assistance payments are exempt from creditors under Connecticut General Statutes, Section 52-352b.   Health and disability insurance payments are exempt as are Workers’ compensation, Social Security, veterans and unemployment benefits.  In addition, under Connecticut General Statutes, Section 38a-453, creditors of an insured cannot seek payment from a life insurance policy beneficiary under most circumstances. 

            E.             Child Support and Alimony Payments

            Any court approved child support payments received by a debtor are exempt and protected from creditors.  Alimony payments, to the extent that wages are exempt from creditor claims, are also protected.  See Connecticut General Statutes, Sections 52-352b & 52-361a.

            F.             Real Estate

            Your homestead or personal residence is exempt from creditor claims up to the value of seventy-five thousand dollars.  If a creditor has a money judgment arising out of hospital services, then the value of the exemption increases to one hundred twenty-five thousand dollars.  The exemption is calculated based upon the fair market value of the equity in the property taking into account any statutory or consensual liens on the property.  See Connecticut General Statutes, Section 52-352b.

            There is no such exemption in place for commercial real estate or rental properties.   

            G.             Motor Vehicles

            Only one motor vehicle is exempt from creditor claims up to the value of one thousand five hundred dollars.  The exemption is calculated by estimating the fair market value of the motor vehicle and taking into account any relevant liens or security interests.  See Connecticut General Statutes, Section 52-352b.

           H.              Bank Accounts

         A creditor can enforce a judgment by way of a bank execution.  However, the same exemptions apply to bank accounts as they do to government assistance, insurance, alimony and child support payments as outlined above.  Therefore, you have the opportunity to challenge a bank execution based on these exemptions and prevent a creditor from taking money out of your account.   In addition, you can claim a general exemption not to exceed one thousand dollars.

            In conclusion, Connecticut law prevents creditors from seizing all of your income, property, possessions and savings pursuant to a judgment or lien.  However, the law does not prevent a debt collector from jeopardizing your livelihood and financial wellbeing.  You best bet is to limit individual liability and plan ahead to avoid a creditor claim in the first place.  Consulting with a professional financial planner and an attorney is recommended.       

 

Next Page »