Non-Compete Agreements (Restrictive Covenants) for Practicing Physicians in New York and Connecticut: Just How Enforceable Are They?

A restrictive covenant (often referred to as a non-compete clause or a covenant not to compete) is a clause contained in an employment contract through which the employee agrees not to pursue a similar profession or trade, placing them in competition with the employer, after the employment relationship is terminated.  This clause or covenant is often put in place to prevent a former employee from using information he or she obtained through the course of their employment to gain a competitive advantage over their former employer.  

If you are currently employed as a physician and your employment agreement contains a provision similar to the type of covenant described above, you probably want to understand how a Court will determine the validity of such a clause in order to understand how such a clause will impact your future as a physician after the termination of your current employment contract, joinder and/or partnership agreement.

Below is a summary on the way Courts are handling the non-compete clauses included in the employment contracts of physicians employed in Connecticut and New York.  This review and analysis consists of two separate, but related parts.  First, a Court must determine whether the non-compete clause is valid, and therefore enforceable.  Second, if a clause is valid, as a way to prevent you from pursuing your newly found employment opportunity, your employer may ask the Court to grant a temporary and/or permanent injunction.  The second section of this analysis focuses on whether a Court will grant your employer’s request for a temporary or permanent injunction.  If granted, this injunction would prevent you from obtaining employment in any manner which violates the restrictive covenant. 

The Validity and Enforceability of Physician Non-Compete Clauses in New York and Connecticut

The laws governing the validity and enforceability of non-compete clauses in New York and Connecticut are fairly similar.  In both states Courts seek to determine if the restraints provided for under the non-compete clause are reasonable.  In making that determination, Courts consider the following factors:  (1) the employer’s need to protect legitimate business interests (such as trade secrets and customer lists), (2) the employee’s need to earn a living and support his or her family, (3) the public’s need to secure the employee’s presence in the labor pool, and (4) the amount of time, and the area restricted under the covenant.

Employer’s Need to Protect Legitimate Business Interests: 

In general, Courts have found an employer to have a legitimate business interest in situations where the employer needs to protect against the former employee’s use of a trade secret or a highly valuable patient list.  If the employer is not able to protect the employee from using such things in the course of their future employment, the employer’s business will noticeably suffer.  This is what the Courts will try and protect against through the enforcement of the restrictive covenant.  In Connecticut, however, it is important to note that it is not the employer who needs to prove a legitimate business interest, but instead, the employee who needs to disprove the employer’s need to protect legitimate business interests through enforcement of the non-compete clause.

Employee’s Need to Earn a Living:  When considering the impact of the enforcement of a non-compete clause on the earning potential of a former employee, Courts will try to determine if enforcement of a restrictive covenant will unreasonably prevent the employee from earning a living, and therefore being able to support themselves.  Significantly, Courts noted, however, that this does not mean the operation of a covenant not to compete must maintain a former employee’s income at present levels in order to be found reasonable.  It is the burden of the former employee to prove that if the covenant is enforced it will substantially damage his or her ability to earn a living.

The Public’s Need to Secure Employee’s Services:  The principal objection to restrictive covenants in physician employment contracts is that they can potentially interfere with continuity of care for a patient.  Therefore, a Court is more reluctant to enforce a covenant if the covenant would impact the care of the former employee’s current patients.  There are however, many covenants that are drafted to allow a physician to continue providing post-operative, or other limited care, for current patients.  If a restrictive covenant will allow for such continuity of care, the Court is more likely to find its restrictions reasonable, and enforceable. 

Time and Area Restrictions:  The amount of time, and the area restricted under non-compete clauses varies greatly between different employment agreements, depending on the type of services involved and the location of the parties.  In making a finding, Courts will look to whether or not the time and area restrictions are reasonable.  Recent decisions held clauses limiting the former employee for up to a period of five years within a thirty mile radius reasonable.  Reasonableness depends, however, on the specific circumstances of the case. 

Other Considerations:  Courts also consider the bargaining power between the parties to the employment contract in determining the reasonableness of a restrictive covenant.  Some Courts may be more reluctant to find a restrictive covenant unenforceable where the employment agreement is created between partners to a practice, rather then when the agreement is held between an employer and an employee.  The Courts have explained this discrepancy on the parties’ ability to negotiate the terms of the employment agreement.  A partner will most likely have a greater ability to negotiate the terms of the contract, than will an employee.   

Injunctive Relief

 

An injunction is an equitable remedy in the form of a Court order, whereby a party is required to do, or to refrain from doing, certain acts. In this case, those certain acts would include being employed in a way which would violate the restrictive covenant.  When considering an employer’s request for a temporary or permanent injunction, the Courts in New York and Connecticut consider whether the employer has demonstrated that he or she would suffer irreparable injury in the absence of an injunction, that he or she is likely to prevail on the merits of the case, and that the balancing of equities favors the issuance of an injunction. 

Irreparable Harm:  In considering the irreparable harm an employer may suffer, a Court will rely on factors such as the employer’s revenues, patient flow and the employer’s ability to maintain their business on a long-term basis.  Such calculations will consider only the employer’s losses, and not the former employee’s gains.
Balancing of the Equities:  When balancing the equities, Courts consider the following: the effect the injunctive relief will have on the employer’s business, the effect that the injunctive relief will have on the employee’s earning potential, and the effect that an injunction will have on the public.  In determining the effect on the employer, the Court analyzes how the employer will benefit from the injunctive relief.  As for the effect on the employee, the Court considers the options available to the employee if the relief is granted.  If the employee can reasonably continue to earn a living, Courts are more willing to grant the employer’s injunctive relief request.  In considering the public interest, Courts look at factors such as the hardship the injunctive relief would have on a doctor’s existing patients and the doctor’s contributions to the surrounding community that would be limited by the granting of injunctive relief. 

Connecticut – Adequate Remedy at Law:  In addition to the above factors, Connecticut Courts consider whether the employer has no other adequate remedy at law available to them.  Although some Connecticut Courts have held that the lack of an adequate remedy at law is presumed to be established where a party seeks to enforce a covenant not to compete, not all Courts have relied on that.  The Courts that do rely on that theory, however, state that it is only a rebuttable presumption; meaning that it may be possible for the employee to convince the Court that this presumption does not apply in a certain situation.  The Connecticut Courts that have not followed that presumption have held the presumption to apply only in the limited instances where the calculation of damages may be difficult or impossible and therefore limits the employer’s potential remedies.  These Courts have found that employers have an adequate remedy at law where they are in a position to bring a breach of contract claim, meaning that the employer is able to calculate the damages suffered as a result of the former employee’s actions. 
Physician Restrictive Covenant Cases in Connecticut   

As a way of bringing together the above information, and to demonstrate the effects of certain factual situations on an outcome, the following illustrations provide examples of restrictive covenant cases heard and decided by the Connecticut Courts in recent years.  

Restrictive covenant valid, Injunction denied:

Opticare, P.C. v. Zimmerman, 2008 Conn. Super. LEXIS 759 (2008).

In this Connecticut case, a doctor entered into an employment contract with physician practice group which provided, among other things, that in the event the doctor voluntarily left the practice but intended to continue practicing medicine he would be prohibited from practicing the type of medicine he practiced with the group, within a specific area for a period of 18 months.  The restricted area was in the shape of a hexagon and ranged from between fifteen to thirty miles from the locations in which the doctor had been employed with the practice group.

After 22 years of employment, the doctor left the physician practice group and opened his own office, practicing the same kind of medicine as he had been, before the 18 month time period had passed and less than four miles away from his former employer’s office.  Upon learning of the physician’s new practice, the practice group asked the Court to grant injunctive relief to prohibit the physician from continuing his practice in violation of the restrictive covenant. 

In denying the group’s request, the Court determined that although the restrictive covenant was valid, the group did not establish a showing of irreparable harm.  The practice group was still in business, and it had failed to demonstrate that the practice was permanently harmed in any way.  The Court also determined that the employer had available to them an adequate remedy at law because the employer had the ability to calculate the damages incurred as a result of the physician’s actions.  Finally, the Court found that the equities balanced in favor of the former employee, due in part to the fact that the doctor frequently donated his time to assisting uninsured premature infants at local hospitals and that an injunction would place an undue hardship on his current patients. 

Restrictive covenant valid, Injunction granted: 

Fairfield County Bariatrics v. Ehrlich, 2010 Conn. Super. LEXIS 568 (2010).

The case of Fairfield County Bariatrics v. Ehrlich, is a case in which the restrictive covenant was deemed valid and injunctive relief was granted to the employer.  It involved a situation where a physician developed a very prominent practice performing bariatric surgeries for the physician practice group with whom he was employed and was a one-third shareholder.   

As part of his employment with the physician practice group, the physician signed an employment agreement which, among other things, provided that for a period of two years following the termination of his employment, the physician could not practice medicine or general surgery within 15 miles of the practice’s office, and that he could not practice bariatric surgery in five local hospitals. 

Following his termination from the group, the physician retrieved a list of the patients he had treated during his employment with the physician practice group.  The physician contacted each patient and informed them that he was no longer associated with the group and directed them to contact him at his new office.  

The physician’s new office was located within the restricted area provided for in the employment agreement.  Additionally, the physician continued to perform bariatric surgeries at the hospitals restricted under the restrictive covenant in the employment agreement. 

The Court held the restrictive covenant valid, finding the length of time and area of coverage to be within reasonable limitations.  Furthermore, the Court determined that the physician practice group had legitimate business interests that needed the protection of the restrictive covenant.  In that finding the Court relied on the practice’s fear that because of the extremely large amount of bariatric surgeries the physician performed on a yearly basis, if the physician were allowed to continue practicing bariatric surgeries at the hospitals within the county, it would drastically dilute the number of surgeries performed at the hospitals in which the practice performed those surgeries.  Additionally, the Court determined that the physician’s ability to earn an income was not so restricted by the covenant as to make it unreasonable.  Under the covenant, the physician was able to perform surgeries throughout the majority of the county in which he resided, and was able to continue providing post-operative care for his current patients.  Finally, the Court determined that the public’s need to secure the physician’s services would only be slightly impacted and that because the physician was still able to provide post-operative care, the public’s need did not render this covenant invalid. 

Continuing in their decision, the Court granted the practice’s request for injunctive relief as the Court believed the practice was likely to prevail at a trial.  In its decision the Court found the physician practice group would suffer irreparable harm if injunctive relief were not granted as it was able to demonstrate the physician had the ability to drastically dilute the number of available surgeries.  As for the balance of equities, the Court determined the harm the physician practice group could potentially suffer if their request was denied was much greater than the harm the physician would suffer if the relief was granted. 
Restrictive covenant invalid, Injunction denied: 

Merryfield Animal Hosp. v. Mackay, 2002 Conn. Super. LEXIS 2628 (2002).

In this Connecticut case, the Court determined that the restrictive covenant included in the employment agreement was invalid.  Consequently, the Court denied the employer’s request for injunctive relief.  The doctor in this case had been employed under an employment agreement that contained a non-compete provision.  This provision restricted the employee from owning, managing, operating, controlling, participating in, or being employed or in any way connected with an organization providing the services provided by the employer for a period of two years after his termination, and within a seven mile radius from the employer’s locations. 

Shortly after his termination the physician obtained employment with a different practice group performing the same services he had been for his former employer. His new employment was located within the seven mile radius restricted under the restrictive covenant.  The employer turned to the Court, seeking a temporary injunction which would order the doctor to comply with the specific provisions of the restrictive covenant.

Although the Court found the time and area restrictions provided for in the restrictive covenant reasonable, it ultimately determined that the covenant was unenforceable and therefore denied the employer’s request.  In doing so the Court relied exclusively on its finding that the restriction under the covenant was overly broad and not reasonably necessary for the fair protection of the group’s business.  If enforced, the language of the covenant would have prevented the doctor, not only from his new position, but even from employment that could in no way bring him in competition with his former employer.         Finding the expansive limitations provided for by the language of the restrictive covenant unreasonable, the Court determined the covenant unenforceable, and consequently denied the employer’s request for injunctive relief. 

Restrictive covenant invalid, Injunction denied: 

Merryfield Animal Hosp. v. Mackay, 2002 Conn. Super. LEXIS 4099 (2002).

A Connecticut Court determined the restrictive covenant at question in this case to be overly protective of the employer’s interest, and therefore determined that the covenant was invalid.  Pursuant to the terms of that clause the doctor in this case agreed he would not involve himself with or be employed by a business providing the professional services he provided for the practice within a seven-mile radius of the practice, and for two years after his employment contract terminated. 

After providing written notice of his termination, the doctor accepted a position with another practice, located slightly less than seven miles from his former employer’s office.  During the course of his new employment the doctor did not solicit any of his former employer’s patients and even rejected any patients he knew to have been patients of his old practice.  The Court, therefore found no evidence of a legitimate business interest that the practice needed to protect.  Furthermore, the practice was unable to demonstrate it suffered or would suffer any loss as a result of the doctor’s actions.  Consequently, the Court determined the restrictive covenant was unenforceable and denied the practice’s request for injunctive relief. 

  

Physician Restrictive Covenant Cases in New York

As a way of bringing together the above information, and to demonstrate the effects of certain factual situations on an outcome, the following illustrations provide examples of restrictive covenant cases heard and decided by New York Courts.  

Restrictive covenant valid, Injunction denied:

Millet v. Slocum, 4 A.D.2d 528 (1957).

Following the termination of his employment as a partner in a physician partnership, the physician in this case brought an action before the Court asking the Court to render the restrictive covenant contained in his employment agreement unenforceable.  Under the terms of his employment agreement, following his termination, the physician was barred from practicing medicine or surgery within a 25 mile radius from the city in which the partnership was located for a two-year period.  The partnership, in response, asked the Court for injunctive relief which would prevent the physician from practicing in contravention of the employment agreement. 

Before working with this partnership, the physician never worked as a physician in New York State.  During the time the physician served the partnership he developed a professional reputation for competence and earned the trust of the partnership’s patients.  As a result, the Court concluded that if the physician were able to directly compete with the partnership, the remaining partners would suffer a loss of patients and good will.  Considering next, the physician’s ability to earn a living, the Court decided that the hardship imposed on the physician was not, when balanced with the needs of the partnership, sufficient to invalidate the covenant.  The physician had the ability to practice medicine and surgery anywhere outside of the 25 mile radius, and the Court noted that since he had been able to come to New York and build such a strong professional reputation when beginning his work with the practice, it would not be so unreasonable for him to do so again.  The Court therefore, concluded that the restrictive covenant was valid and enforceable. 

Despite the validity of the restrictive covenant, the Court denied the partnership’s request for injunctive relief based on its finding that the partnership breached the partnership agreement when it expelled the physician from the partnership without justification, as was required pursuant to the agreement.  The Court held the partnership’s actions constituted such a breach of the partnership agreement as to not entitle the partnership to the injunctive relief requested. 

Restrictive covenant valid, Injunction granted: 

Gelder Medical Group v. Webber, 41 N.Y.2d 680 (1977).

After a few years of employment as a partner to a partnership practice, the physician in this case was expelled pursuant to the partnership agreement.  Under the terms of the partnership agreement, the physician had agreed not to practice his profession within a radius of 30 miles of the village in which the partnership was located for a period of five years.  Disregarding the restrictive covenant, the physician resumed his surgical practice as a single practitioner, practicing in the same village as the partnership and within two months of his expulsion.  The partnership, in an effort to protect its practice, asked the Court to enforce the restrictive covenant and grant injunctive relief. 

The Court ultimately determined this restrictive covenant was valid.  Its decision was due, in part, to the small size of the village in which the partnership was located and had built its practice.  In such a small area, the threat of competition from the physician, if allowed, could result in serious damage to the partnership’s number of patients and its revenues.  The Court also considered the impact that the covenant could have on the physician’s ability to earn a living and found that throughout the course of his career, this physician had repeatedly changed professional associations within a range of thousands of miles.  Therefore, the Court did not credit the physician’s argument that relocating his practice would unreasonably impair his ability to earn an income.  Finally, the Court considered the interest of the public and noted the public would not be affected by the enforcement of this covenant, as they could easily obtain the services provided by the physician elsewhere.  Granting the employer’s injunction, the Court noted that the damage the partnership would suffer without injunctive relief, when balanced with the losses the physician may face if the covenant were enforced, justified the enforcement of this restrictive covenant. 

Restrictive covenant invalid, Injunction denied:

Michael I. Weintraub, M. D., P. C. v. Schwartz, 131 A.D.2d 663 (1987). 

The physician in this case had been employed by a certain professional practice group for a period of two years at the time his employment contract was terminated.  Pursuant to the terms of his employment agreement, the physician was restricted from engaging in the type of services he performed for the physician practice group within a five mile radius from the professional practice’s office, and within a five mile radius of any hospital at which he had worked at on behalf of the professional practice for a period of one year after the effective date of his termination.  Before that one-year period lapsed the physician established an office to perform the restricted type of services within five miles from a hospital where the physician worked on the group’s behalf.  The professional group initiated an action against the physician to enforce the restrictive covenant and prevent him from breaching his employment agreement. 

In reviewing the restrictive covenant, the Court determined the provision restricting the physician from practicing within five miles of the group’s offices was reasonable and enforceable.  The Court, however, found the portion of the covenant prohibiting the physician from practicing within a five-mile radius of any hospital where he worked on the group’s behalf was overly broad and oppressive, and thus unenforceable.  If the physician had been required to follow the terms of the covenant it would essentially prohibit him from practicing at or near any of the major hospitals in the two nearest counties.  The Court furthered noted an absence of evidence indicating the group’s business related concerns were implicated in any manner through the physician’s breach of the restrictive covenant.  Consequently, the Court denied the group’s motion for injunctive relief.

Restrictive Covenant Severed:

Karpinski v. Ingrasci, 28 N.Y.2d 45 (1971).

In the following case the Court held even though the restrictive covenant contained an unreasonable provision, the remaining restrictions provided for under the agreement would be enforceable against the former physician employee.  In essence, the Court severed the unreasonable restriction from the restrictive covenant, and held the remainder to be valid.  This situation involved a dentist employed by an oral surgeon.  As part of his employment with the oral surgeon he agreed to never practice dentistry or oral surgery in any of the surrounding counties except in association with the oral surgeon.

Upon voluntarily ending his employment with the oral surgeon, the dentist opened his own office in violation of the restrictive covenant.  After the competition created by the dentist’s new office forced the oral surgeon to close one of his offices, the oral surgeon asked the Court to enforce the restrictive covenant.  The Court ultimately held the employer was entitled to an injunction barring the dentist from practicing oral surgery in the five specified counties named in the covenant, but that the covenant’s restriction on the practice of dentistry was too broad.  Since the oral surgeon’s business consisted only of performing oral surgeries and related operations, a dental practice providing only dentistry services, and no oral surgery services, would provide no direct competition.  The Court, therefore determining the restriction on the practice of dentistry to be too broad, severed that restriction from the covenant, but enforced the remaining provisions of the agreement. 

Situations involving these restrictive covenants, or non-compete agreements, are very fact specific, requiring case by case analysis and determinations.  Determining the consequences of your employment agreement and your options will require an in-depth review.  A violation of a restrictive covenant, if such covenant is in fact enforceable, may result in other contractual claims being brought against you by a former employer.  If you have any questions relating to your restrictive covenant or would like to discuss any element of your employment agreement, please contact Joseph Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision

Is a Bonus a ‘Wage’?:  Not According to a Recent Connecticut Supreme Court Decision

Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it?   A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.

This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act.  Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.

Under this recently decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid.  If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise.  If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages.  If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action.  In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.

Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages.  If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.

The events of this recently decided case unfolded as follows:   At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus.  The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work and loyalty to the firm.  The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus.  When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment.  To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.

The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act.  The breach of contract claim, however, went to trial.  The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest.  On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim, but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim.  The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.

The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act.  The employee therefore was not able to proceed with his wrongful withholding of wages claim.

Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.

It is quite possible that after the release of this opinion many employers will revisit their bonus polices to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case.  It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.

If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case.  If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer.  This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.

If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.

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.

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.

Faulty Misconceptions of Connecticut No-Fault Divorce

Doesn’t fault always matter?
Connecticut is known as a no-fault divorce state. In fact, almost all of the states in this country now have provisions for no-fault divorce. While controversy will continue to exist as to whether no-fault divorce provisions have led to the downfall of marriage in the United States, the question is … doesn’t fault always matter? [Read more]