Posts tagged with "legal separation"

Court Decides Issue of First Impression Regarding Payment of College Expenses

Leave a reply

In a recent decision, a Connecticut Superior Court addressed an issue of first impression regarding the payment of college expenses, namely whether the Connecticut Superior Courts have the authority to enter an educational support order for a child that has reached the age of majority when entering a child support order for a minor child.  The parties in this particular case were married in Chile and had two children before obtaining a divorce (also in Chile) in 1991.  The Chilean divorce decree did not contain any provisions regarding child support or the payment of college expenses.

The parties subsequently moved to the United States, and in February 2012, the children’s mother filed a motion requesting that the father pay child support for their minor son and also contribute toward the cost of their older daughter’s college expenses.  When the mother filed the motion, the parties’ son was fourteen and the parties’ daughter was eighteen.

Educational Support Orders

Generally speaking, C.G.S.A. 46b-56c authorizes a court to issue an educational support order requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction.  The statute provides that a court, on motion or petition of a parent, may enter an educational support order at the time of entering: a decree of dissolution, legal separation or annulment; an order for support pendente lite; a support order where parents of a minor child live separately; or a judgment of paternity.

However, the statute also provides that, “On motion or petition of a parent, the court may enter an educational support order at the time of entering an order pursuant to any other provision of the general statutes authorizing the court to make an order of support for a child…” As the Court in this case explained, at any of those points, “[a]n educational support order may be entered with respect to any child who has not attained twenty-three years of age . . .”

The Court’s Decision

In the aforementioned case, the Court held that the provisions of §46b-56c clearly provide that an educational support order may be entered with respect to any child who has not attained twenty-three years of age at the time the court enters an order of support pursuant to any provision of the General Statutes.  According to the Court, nothing in the plain language of §46b-56c requires that the educational support order be issued for the same child for whom the support order is being entered.

Additionally, nothing in the statutory language suggests that the court’s authority to enter an educational support order for a child that has reached the age of majority is limited in cases where a parent’s younger child qualifies for support.

Litigants should be aware of the fact that the foregoing decision is persuasive (as opposed to binding authority) at best, and contains facts that may distinguish the case from their own.  Indeed, it is important to have a comprehensive understanding of the statutes and case law governing the payment of college expenses, particularly because parties are generally precluded from seeking post judgment orders regarding college expenses unless the court specifically retains jurisdiction over the issue during the final dissolution hearing.

–

Should you have any questions regarding educational support orders, or divorce matters in general, please feel free to contact Joseph Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Visitation and Custody Interference: An Overview

Leave a reply

One of the biggest questions in a child custody case is “Who will get custody and visitation rights?” The answer to this crucial question can be complicated. Once settled, things don’t always go smoothly. This article walks you through some common questions concerning visitation and custody interference issues.

My ex has physical custody of our kids. I am always very prompt in sending my support check, but lately, I’ve been feeling that I don’t have enough time with my kids. Is it a good idea to stop paying my child support as a way to force my ex into giving me more visitation?

No, it is not a good idea. In fact, it could backfire and result in you having less or no time with your children. Visitation and child support don’t have anything to do with each other from a legal standpoint, and a judge would probably come down on you hard for withholding your support.

Try having a civil conversation with your ex about having more time with your kids. If that doesn’t work, you can request a modification of the visitation schedule in court.

Joint physical custody is another option if you and your ex don’t live too far apart. Courts will only grant this option if it won’t harm the children and if the parents demonstrate that they can work together.

Our visitation order clearly states that my ex-wife must pick up our daughter at a certain time on a certain day each week, but she is consistently late and sometimes doesn’t bother to show up at all. This is very hard on our daughter, and it often interferes with my life as well. Can I do anything about this?

The first step (as it usually is) is to talk to your ex-wife and get an understanding for the reasons why she’s late or a no-show. If her job or family responsibilities are the cause, you may be able to fix the problem with a few simple schedule changes.

If she doesn’t have a valid reason and you can’t work out a solution, you can ask a judge to enforce or change the visitation order. You should create a list of all the times your wife shows up late or doesn’t show up at all so you have some documentation of the problem. The court will definitely be more interested in how the situation is affecting your daughter than how it is inconveniencing you, so make sure to focus on her rather than on yourself.

I have joint legal custody of my son with my ex-husband. Every time we have to make a decision about our son’s religion, healthcare or education he fights me tooth and nail. I feel that he is just trying to be difficult — do I have to consult him about these things?

Sharing legal custody can present a wide range of problems, especially when the relationship between the former spouses has deteriorated. As tough as it may be, though, you still need to keep your ex-husband in the loop when it comes to these decisions, as you may violate a court order if you keep him in the dark. If your ex challenges your unilateral decision-making in court, a judge could end up awarding him sole legal custody, so it’s better to comply with the terms of the original order until it can be modified.

As always, you should try as hard as you can to work it out amongst yourselves. Try to get inside your ex’s head and figure out why he obstructs these decisions. Perhaps he feels that he doesn’t have enough visitation with your son. If so, a few more visits might resolve the issue.

I have joint legal and physical custody of my children with my ex-wife. She never seems to do anything to help with chores or scheduling, so I end up doing all the laundry, shopping and planning. How can I get her to pull her weight?

First, examine the situation and see if there’s a reason why your ex hasn’t helped out with these responsibilities. She might have personal or work issues that prevent her from doing all that she should. She may not even realize that you feel this way.

Talk to her and ask her to help out. If that doesn’t work, send her a cordial letter via certified mail listing the parental duties and requesting that she take over some of them. If she doesn’t respond or start pitching in within two or three weeks, you may have to go to court to change anything.

Also think about asking a mediator to step in. Impartial mediators can really help a situation like this. Sometimes an outside voice repeating what you’ve already said can get the desired results.

I’ve had sole physical custody of my son for his entire life. His father recently promised him a car if my son comes to live with him. Can I fight this in any way?

Before you try to fight the move, ask yourself if it could actually be a good choice for your son.

If you still object to the switch, it’s within your rights to prevent your son from leaving. If you choose to do so, however, your ex-husband could go to court and ask for a change in the custody order. When children get older, judges will generally give greater weight to their preferences. That doesn’t mean that a judge will rubber-stamp your son’s wish to go live with his father, but it does make it more likely that the judge will allow your son to make his own choice.

Remember not to badmouth your ex based on your personal feelings about him, but if you think that he is a danger to your son in any way you should explain this to both your son and the court.

You could also avoid court altogether by trying to reach a compromise. Increased visitation might satisfy your ex while allowing you to retain custody of your son.

Over spring break, my ex took our kids on a trip, but didn’t tell me where they were going. Is there anything I can do to make sure I know of future vacation plans ahead of time?

That’s a difficult question. Unless your custody and visitation arrangement states otherwise, your ex can take the kids wherever they want as long as the trip doesn’t place the children in any danger. And yet it is probably in the children’s best interest that you know where they are going in case an emergency comes up.

Ask your ex to give you information about any future vacation plans. Explain that you want to know for safety purposes, not to hinder the plans in any way. If he doesn’t provide the information in a few days, send a certified letter that politely repeats your request. You may want to send a copy to your ex’s attorney — a lawyer can usually convince a client to cooperate, if only to help their case should the matter go to court.

If you still don’t receive a response you can file an “order to show cause” demanding that your ex appear in court and list the reasons why he shouldn’t have to disclose the vacation plans to you. It is likely that a judge will order your ex to tell you the plans.

My ex-husband often returns the kids late after his scheduled visitation. I’m worried he may be thinking of not returning them at all one day. Is there anything I can do?

It might be possible to clear everything up by talking to your ex about his tardiness. He might not know that his actions have caused you so much worry.

If your ex does fail to return the kids, his actions break both criminal and civil law, and also violate the custody and visitation orders that you have in place. At this point, the police can step in to recover the children, and they can charge your ex-husband with kidnapping. You can also sue him for damages.

My ex-wife has sole physical custody of our kids, but I have visitation on alternating weekends. She just told me that she plans to take a job across the country, however, which would mean that I could only afford to see my kids every few months. What can I do?

Unfortunately, there isn’t an easy answer for this question. State law controls, and states differ greatly when it comes to relocation issues. Some states protect the non-custodial parent’s right to maintain an ongoing relationship with their children, while other states protect the custodial parent’s right to relocate for employment or family reasons.

Try to reason with your ex-wife by explaining your desire to keep seeing your children regularly and laying out your financial limitations. If this doesn’t work, you should probably consult with your attorney to learn more about the laws in your state.

I have an infant child, and the child’s father has visitation rights every other weekend. He lives in a tiny apartment that isn’t baby-safe and doesn’t have the necessary items, like a crib, stroller or infant tub. Can I prevent the visits?

It’s best to comply with visitation order, lest you anger a judge and risk having to give up some of your custodial rights. You can provide what the baby needs, and you can also firmly suggest that the father purchase the necessary supplies. Unless the visitation order explicitly states that the father must buy certain items, however, he isn’t legally required to do so.

Consider going back to court to modify the visitation order. Judges will usually require parents to have all reasonable items for the care of the baby.

If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce Basics: Filing and Associate Fees

Leave a reply
What are filing and other associated fees within a divorce action?

What should I expect to pay for when filing for divorce? A divorce litigant, even one who represents himself or herself, should be prepared to pay certain court costs for the privilege of utilizing the court system. The filing fee to start an action is $350.00. A state marshal will be needed to serve the summons and complaint on your spouse in all cases, and rates for service generally range from $50.00 to $100.00, depending on the method of service and the number of attempts. If there are minor children of the marriage, once the action is commenced, both parties will be required to participate in a Parenting Education Class at a cost of $125.00 per person.

–

If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce Basics: No-Fault in Connecticut

Leave a reply
No-Fault in Connecticut

What is the no-fault rule? What does it mean to have no-fault divorce? How does it work in CT? Does it apply to me? The general rule in Connecticut, and other “no-fault” jurisdictions is that a spouse is not required to prove “grounds” (a reason) to obtain a dissolution of marriage. Where fault does not exist, a court will grant a divorce on the ground that the marriage has simply “broken down irretrievably with no reasonable prospect of reconciliation.” Nevertheless, many divorcing spouses will come into litigation painfully aware of the “cause” for the breakdown of the relationship – which begs the question: if the other spouse was the reason for the divorce, will the judge listen, and will it matter?

The answer is yes, to some degree. In fact, fault is part of the statutory framework of divorce in Connecticut, and although a party is not required to allege or prove fault, he or she is permitted to do so. If a party does allege fault, a judge may take the allegations into consideration when deciding how to divide the marital property and/or whether (and how much) alimony should be awarded to one spouse or the other.

When the fault alleged by one party is substantial, and when it substantially contributes to the breakdown of the marriage or the loss of marital assets, a court is more likely to award that party a greater share of the assets or more alimony. Nevertheless, in the vast majority of court decisions judges mention fault as alleged by one side or the other, but usually find the parties equally responsible for the breakdown of the marriage.

–

If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce Options: Litigation

Leave a reply
What is litigation and when might a divorce case go to litigation? 

Many people wonder what litigation is or how it works. In divorce cases, litigation is typically a last resort. Supposed counseling has been ineffective or non-participatory. Mediation has either failed or is not a viable option since one or both parties refuses to attend – or perhaps emotional impediments loom too large. Divorce as an end result is a given; the only remaining route to that goal is litigation.

Litigation refers to the filing of a lawsuit. Initial pleadings are filed (more on this, below), the filing fee is paid, and the great unknown – the legal process – begins to take shape with its own deadlines, rules, procedures, and local practices. Every litigant in state court – lawyer or not – is presumed (for better or worse) to know the rules of court, which are set forth in a daunting publication known as the Connecticut Practice Book. The friendly-sounding, simple name is misleading.

At multiple volumes, hundreds of pages (or countless clicks down the screen, since the Practice Book is also published and updated online), it is a tall order for most litigants in a divorce action to familiarize themselves with civil practice, filing of pleadings and motions, the “discovery” mechanisms available to each party, and the role of the judge in a dissolution action.

This publication is intended to demystify the process for the divorce litigant. It is not intended to replace the services of an experienced family law practitioner who can effectively advocate for a divorcing party. There are hundreds of attorneys in Fairfield County alone, a very many of whom claim to practice family law.

–

If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce Basics: Residency Requirements and Determining Jurisdiction

Leave a reply
How do I know when a Connecticut court has jurisdiction over my divorce case? 

It is important to understand when a court has proper jurisdiction over your divorce case. A person’s residency determines such a factor. For a court to have “jurisdiction” – that is, in order for a judge to have the authority to dissolve a marriage – one party must have been domiciled continuously in the State of Connecticut for a period of twelve months prior to the date that the court issues the judgment.

The residency requirement does not require you to have lived for the full year in the judicial district in which you have filed, and in fact, you may file for divorce before meeting the one-year requirement, as long as a full year has elapsed before the final date of your divorce.

There are also less frequently-used bases for jurisdiction as well: the cause for the divorce arose after you and your spouse moved to Connecticut (but before you had been in the state for a year); you were Connecticut residents before going on active military duty which took you out of state; or you were previously a resident of Connecticut and moved back to Connecticut with the intent of making Connecticut your permanent residence.

All of the above would give the courts in Connecticut the authority to grant your divorce. For further information and advice on this subject (especially if your factual circumstances are complicated), it is strongly suggested you seek the advice of an attorney.

–

If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

What Happens When I File For Divorce In Connecticut?

Leave a reply

To file for divorce in Connecticut, the person seeking the divorce (the “plaintiff”) files a document called a “complaint” in the superior court for the judicial district where at least one of the spouses lives. The complaint includes information about current living arrangements, the reason for the divorce, and any children of the marriage. In addition to asking that the marriage be terminated, the plaintiff can ask the court to divide marital property and debts, award alimony or child support, determine child custody, and restore a previous name.

When you file for divorce in Connecticut, automatic orders go into effect. Automatic orders are restraining orders that prevent either spouse from taking actions that would drastically affect the couple’s property or children without the other spouse’s consent, such as spending a large amount of money, changing life or medical insurance beneficiaries, mortgaging or selling a home, locking the other spouse out of the home, or taking children out of the state. The court can modify these orders in an appropriate case.

A Connecticut divorce typically takes at least four months. The court sets two dates when a complaint is filed. The first is the “return date,” which is at least four weeks away to give the defendant a chance to answer the complaint, file a cross complaint, or simply enter a “pro se” appearance. The second date is the “case management date,” which is at least 90 days after the return date and is the earliest date a divorce can be finalized. The court takes no action before the case management date so that the spouses have some time to settle issues out of court. Couples with children must also complete a court-approved parenting education program within 60 days of the return date.

–

This case was not handled by our firm. However, if you have any questions regarding this case, or any family matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce and Parting With Your Home

Leave a reply

Perhaps one of the more difficult elements of a divorce, for parting couples, is parting with their home. Real estate and legal experts say a divorcing couple should set aside their acrimony and get on the same page. Here some options for parting couples and their homes, during a divorce:

1. Sell the house:

Selling a home can be the easiest and fastest way to handle what is likely a couple’s biggest financial asset. Before they begin the process, experts say, the couple should plan, with their lawyers, how the sale will proceed. As for when to sell, lawyers say couples need to take tax advantages into account such as the capital gains exemption. They advise clients in some situations, for example, to sell the house before the divorce is final. It can be awkward for agents and buyers to do business with both spouses in the throes of a divorce and therefore the couple should decide in advance who’s going to do what and who will pay for what.

2. One spouse gets the house:

A longer-term arrangement is for one spouse to stay in the home with the children for an agreed-upon period of time, and then sell the house. In this scenario, he or she would need to work out details such as who pays the mortgage while the one spouse lives there and how the profits would be split once the house sells. That can carry a financial risk because nobody knows what the housing market will be when the house sells. Sometimes that can mean selling in a less favorable market.

Another option is for one spouse to buy the other out of the house. Sometimes one spouse will have more of a claim to the home, especially if he or she owned it before the marriage. However, one should keep in mind that if both people in the couple are on the title of the home, the person who is keeping the house needs to qualify for the entire loan on their own.

3. Sharing the house:

More and more couples are rejecting the divorce of their parents’ generation and getting creative, especially when kids are involved. While the divorce rate is steadily dropping, the ways in which people remake their living arrangements after splitting is growing, according to divorce lawyers and real estate agents. Sometimes, that means delaying selling the home for several years so one spouse can live there.

Other times that can even mean the couple shares the house. It’s called nesting, and some people with kids are trying it out in an effort to cause less emotional disruption for the children, and less financial disruption for themselves. Some couples can’t sell because they are upside-down on their mortgage. Nesting can take any form the couple wants. A guest bedroom can be converted for one spouse to sleep in. Or spouses can trade off weeks living in the house. On their “off week,” they can rent an apartment or live with friends or relatives.

Generally, families have a timeline to end this arrangement, because a couple that’s splitting up obviously wouldn’t want to live together indefinitely. Experts say the best way to make that work is to have firm ground rules that everyone agrees on. That includes bigger-picture things such as when the house should go on the market, as well as smaller things such as keeping the house stocked with milk and toilet paper. Other issues can be trickier but still important to work out, like whether a new girlfriend or boyfriend is allowed in the home. This option only works if the couple still gets along quite well.

Credit: WASHINGTON POST

–

This case was not handled by our firm. However, if you have any questions regarding this case, or any family matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Divorce and Financial Preparation

Leave a reply

A divorce can be a very emotionally draining process. Because of the emotions involved, few people consider that a divorce can also be taxing on one’s financial security. Financial mistakes that were made years ago, even prior to marriage, can come back and be a major factor in one’s divorce. Therefore, it is important to have a clear picture of one’s finances before, during, and after a divorce.

  • Have Your Documents Together:

All documents regarding one’s personal assets and liabilities should be gathered early on in the divorce process or before the divorce begins, in order to avoid trying to track down certain documents during a divorce. These documents include your tax returns, copies of your paystubs, year-end reports from your credit card companies, bank statements, stock or investment statement and anything that will accurately show what assets and liabilities you have.

  • Know Your Credit Score: 

Knowing your credit score is important for a variety of reasons. During marriage, a couple may have joint credit cards. By having joint credit cards, the poor credit of a spouse may affect the credit of the other spouse, even though the other spouse is not at fault. Furthermore, it is important to have strong credit in order to move on after a divorce. Having joint accounts or credit cards during a marriage that led to bad credit can have negative implications when you are on your own once the divorce is over.

  • Have Your Own Accounts: 

As with the issue of joint credit cards affecting one’s credit score, it is important to have your own accounts, even prior to a divorce. Joint accounts can make the divorce process very complicated. This is because, with joint accounts, it is difficult to determine who contributed what to the account and, therefore, dividing the account appropriately is complicated. With separate accounts, it is evident which assets belong to which spouse, and diving the accounts is simplified because the accounts were never commingled.

  • Have a Financial Planner: 

Throughout the divorce process and at its conclusion, there are a variety of financial implications that may be overwhelming. Financial planners can simplify some of the most complex issues for the divorcing couple at a time when simplicity is necessary.

The finances of every couple are different, and that is why every divorce is different. It is always advised that you consult with an experienced family law attorney to review your assets prior to and throughout the divorce process to ensure that the financial outcome of the divorce is equitable.[1]

This case was not handled by our firm. However, if you have any questions regarding this case, or any family matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

Grounds for an Annulment

Leave a reply

An annulment is different from a divorce in that the latter applies to a valid marriage relationship and is based on causes and problems that arise after the wedding ceremony, while the former is based on the theory that the marriage was void or voidable when it took place. An annulment decree, in effect, declares that the marriage never existed.

Unlike the Connecticut statutes that govern divorce, no single statute collects and itemizes the various grounds for an annulment. Some grounds exist in statute and others exist under common law. In addition, some grounds establish that the marriage was void at its inception while others establish a basis for one of the parties to go to court and ask that the marriage be declared void. Connecticut courts have generally preferred that latter type of ground unless a specific statute expressly declares the marriage to be void.

Common Grounds for an Annulment:

  • Consanguinity or Affinity: 

Consanguinity is the legal term courts use to refer to a marriage between parties who are too closely related. The law prohibits a man from marrying his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepdaughter, or stepmother, and the same prohibitions apply to women regarding men with similar relationships. Thus any such marriage is considered void from the outset regardless of the intentions of the parties.

  • Bigamy: 

A bigamous marriage is one attempted by a party who has already married. It can involve a conscious attempt to commit bigamy, but it often occurs when a divorce decree for a prior marriage is invalid or not final. No statute expressly declares a bigamous marriage void, but the statues define a crime of bigamy. A bigamous marriage is void from the start, so the annulment judgment only serves as a record that the marriage is invalid.

  • Incompetence: 

No statute specifically declares a marriage involving a mentally disabled, mentally ill, or otherwise incompetent person invalid, but the statutes require that before a marriage license can be issued to anyone under the supervision and control of a conservator or guardian the written consent of that person must be obtained. Such a marriage may be voidable under general legal principles of equity although there are no reported cases based on this situation.

  • Defects in the Marriage Ceremony or License: 

The statutes impose some requirements regarding obtaining a marriage license and who can perform a marriage. If any of these requirements are not met, it may, in some cases, be grounds for an annulment. However, care needs to be taken regarding this ground. The General Assembly periodically passes acts to validate all marriages that would be invalid except that the justice of the peace performing the marriage did not have a valid certificate of qualification. Similar validating provisions are passed for marriages that take place in a different town than the one issuing the marriage license.

  • Fraud, Force, or Duress: 

It is a general legal principle that formation of a binding contract requires the mutual assent of both parties, and a marriage is such a contractual relationship. Thus, for a valid marriage to be created, the parties must manifest the necessary intent to enter the relationship. In judging this courts will look at the incidents leading up to the marriage and surrounding the ceremony itself to determine the state of mind and intentions of the parties. Consent of both parties is a necessary condition and therefore if only one party consents to the contract, there is no marriage. When the consent of one of the parties was obtained by fraud, the mutuality of consents required for a valid marriage does not exist.

  • Concealment or Misrepresentation of Facts or Circumstances: 

Misrepresentation of a person’s health or physical condition is sometimes raised as grounds for an annulment, but the courts have held that such misrepresentation is only a ground if it relates to matters essential to the marriage union.[1]

For a free consultation, please do not hesitate to contact Joseph Maya and the other experienced family law and divorce attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100 or JMaya@mayalaw.com.