Posts tagged with "matrimonial law"

Court Grants Mother Sole Custody of Her Daughter

In a custody decision, a New York appellate court affirmed a lower court’s decision to grant a mother sole custody of the parties’ child.  In this particular case, the parties were divorced in 2001, and for several years thereafter shared joint custody of their daughter.  The mother had primary physical custody subject to liberal unsupervised visitation with the father. The mother moved for sole custody, requesting that the father’s visitation be suspended, or alternatively, that it be supervised.  The father cross moved for sole legal and physical custody, claiming that the mother was interfering with his visitation.

Following an extensive and protracted period of litigation, the court granted the mother sole legal and physical custody of the child, and ordered the father to attend reunification therapy.  The court also ordered the father’s visitation to be supervised.

The father appealed; however, the Appellate Court affirmed the lower court’s ruling.  In support of its decision, the Court explained that under New York law, in determining whether a custody arrangement should be modified, the paramount issue is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child.  Cuccurullo v. Cuccurullo, 21 AD3d 983, 984, 801 NYS2d 360 (2005).   In addition to considering the factors considered in any other custody determination, the court must also take into account the stability and continuity afforded by maintaining the present arrangement.  Gonzalez v. Gonzalez, 17 AD3d 635, 636, 794 NYS2d 103 (2005).  When there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his or her life. Matter of Salvati v. Salvati, 221 AD2d 541, 543, 633 NYS2d 819 (1995).

From a factual standpoint, the Court found that the child had been living with the mother for eight years, that the child was thriving under the mother’s care and that the daughter preferred to continue living with the mother.  The Court also noted that the father presented no evidence to suggest that he was a more fit parent, or that he would be able to provide a better home environment for the child.  Although the Court took notice of evidence suggesting the mother had interfered with the father’s visitation, it ultimately concluded that the interference did not warrant a change in custody.

Should you have any questions regarding custody related matters, or divorce proceedings in general, please feel free to contact managing partner Joseph Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Court Modifies Alimony Award to $40,000 Per Month

In certain cases a court is permitted to modify orders regarding alimony and child support after a divorce has been finalized.  Although there are a variety of circumstances under which a modification may be warranted, cases often involve situations where one party’s income has significantly increased or decreased.  In Dan v. Dan, 137 Conn. App. 728 (2012), the parties were divorced in 2000 after a twenty-nine year marriage.  As part of their separation agreement, the husband agreed to pay the wife $15,000 per month in alimony, plus 25% of any amounts that he earned through performance based bonuses.  The husband was obligated to make the payments until the wife’s death, remarriage or cohabitation, or until the husband retired or reached the age of sixty-five, whichever occurred first.

Approximately ten years later, the wife filed a motion to modify the husband’s alimony obligation, claiming that his income had increased significantly since the divorce, and that her own medical expenses had “skyrocketed.”  The trial court found that at the time of the dissolution, the husband was earning $696,000 per year whereas at the time of the hearing, he was earning a base salary of $3,240,000.  The court also found that the husband had recently exercised stock options in the amount of $3,000,000.  The wife, on the other hand, was earning $8,000 to $12,000 per year from dividend income.  She had a high school diploma, but no college degree, and had not been employed since 1977.  The court also noted that she was taking medication for high blood pressure, high cholesterol and diabetes.  Focusing its analysis on the length of the parties’ marriage, the amount and sources of the parties’ respective income, the parties’ health and the parties’ vocational skills, the court modified the husband’s alimony obligation to $40,000 per month plus 25% of any performance based bonuses.

The husband appealed, claiming that, among other things, the court erred in not limiting its consideration to circumstances that changed after the parties’ divorce.  The Appellate Court disagreed, however, explaining that although the moving party must first demonstrate a substantial change in circumstances warranting a modification, once he or she has done so, the court must then consider all of the statutory criteria set forth in C.G.S. § 46b-82.   In other words, in formulating the new alimony award, the court will consider the same criteria it considered in formulating an initial award even if some of the criteria do not pertain to the alleged change.

Should you have any questions regarding the modification of alimony or other financial support awards, please feel free to contact Attorney Joseph Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Post Judgment Divorce Action, Court Determines that $1.2 Million Payment to Husband was Income, Not Liquidation of an Asset

In Post Judgment Divorce Action, Court Determines that $1.2 Million Payment to Husband was Income, Not Liquidation of an Asset

In a post judgment decision rendered, the Superior Court of Fairfield at Bridgeport addressed whether a payment that a husband received from his employer after the parties’ divorce constituted an asset or, alternatively, income.  The parties in this action obtained an uncontested divorce in 2008.  As part of their separation agreement, the husband was obligated to pay the wife child support in the amount of $1,600.00 per month.  At the time of dissolution, the husband was employed as a CEO earning approximately $150,000.00 gross per year.  He listed on his financial affidavit 400 shares of company stock, along with 240 stock options.  According to the parties’ separation agreement, the wife was entitled to receive 25% of the value of the shares upon their sale.

When the husband’s company was purchased in early 2012, he received approximately $80,000.00 from the sale of his stock.  The husband also received a payment of $1,200,000.00 from the proceeds of the sale, which the company described as an “award by way of thanks for employee efforts.”  At trial, a member of the husband’s company vaguely explained that the distribution was a way of recognizing value created by a job well done; however, a payroll record introduced as evidence listed the payment specifically as bonus/supplemental income.

The wife argued that the distribution should be considered bonus income and thus used to re-calculate child support.  The husband, on the other hand, argued that it was not income, but rather an asset previously awarded to him as part of the dissolution judgment.  Under the husband’s theory, the court would be precluded from awarding the wife any portion of the distribution as doing so would constitute an impermissible post judgment property distribution.

In reaching its decision, the court explained that the conversion to liquid form of an asset included in the equitable division at the time of dissolution does not constitute income for future determinations.  Hamlin v. Hamlin, Superior Court of Fairfield at Bridgeport, Docket No. FA074021468 (Sept. 10, 2012, Klatt, J.).  In other words, “[t]he mere exchange of an asset awarded as property in a dissolution decree for cash, the liquid form of the asset, does not transform the property into income.”  Denley v. Denley, 38 Conn. App. 349 (1995).  On the other hand, the court also explained that a “bonus” is defined as “an amount of money given in addition to normal pay, especially as a reward.”  Because the court found that the money was not listed as an asset at the time of dissolution, and because the husband testified that the money was an award given in appreciation of his skills, it ultimately deemed the distribution income and ordered the husband to set aside approximately 10% for the child’s future educational expenses.

The matrimonial attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience handling divorce and custody matters, and assist clients from Greenwich, Stamford, Darien, New Canaan, Norwalk, Westport and Fairfield.  For more information, please feel free to contact managing partner Joseph Maya at (203) 221-3100, or jmaya@mayalaw.com.

Child Care Costs and the Connecticut Child Support Guidelines

In a decision rendered earlier this year, the Connecticut Appellate Court explained the definition of “child care costs” as set forth in the Connecticut Child Support Guidelines.  In that particular case, the parties were married for approximately five years and were the parents of two minor children.  In 2003, they entered into a custody stipulation which was subsequently incorporated into a comprehensive separation agreement.  The separation agreement provided that the husband would pay the wife $2,500 per month in unallocated alimony and child support for a period of five years, followed by straight child support.

At the expiration of five years following the parties divorce, the wife filed a motion with the court seeking a new child support order.  Litigation ensued before the parties finally reached an agreement.  As part of that agreement, the parties stipulated that they would share in the costs of child care expenses with the defendant paying 59% and the wife paying 41%.

Approximately one year later, the wife filed a motion for contempt, claiming that, among other things, the husband refused to reimburse his share of the child care costs she had incurred.  Unable to reach an agreement on that particular issue, the court conducted a hearing.  The mother, who was working full time as a personal assistant, testified that she had enlisted three different individuals to watch the children either after school while she was at work, when the children were home from school (either because they were sick or because they had a snow day), or when the children were on vacation or otherwise had a day off.  The husband admitted that he was responsible for 59% of child care costs, but claimed that the wife failed to consult with him before obtaining the services, that she never gave him an opportunity to approve the service providers and that the services may not have been necessary.  The husband also claimed that he believed the parties’ stipulation was limited to times when the mother needed to be away overnight, and did not apply to after school care.

When the trial court ruled in the mother’s favor, the father appealed, claiming the wife failed to establish that the child care costs at issue satisfied the criteria set forth in the Connecticut Child Support Guidelines.  In its decision, the Connecticut Appellate Court explained that according to the Guidelines, “Child care costs shall qualify for a contribution from the noncustodial parent only when they are, a) reasonable; b) necessary to allow a parent to maintain employment, c) not otherwise reimbursed or subsidized, and d) do not exceed the level required to provide quality care from a licensed source.”  Curtis v. Curtis, 134 Conn. App. 833 (2012).  Interestingly, the court never reached the issue as to whether the aforementioned factors had been met.  Rather, it explained that in prosecuting a motion for contempt, the moving party does not have an evidentiary burden to satisfy the criteria set forth in the Guidelines.  Although a court must take the Guidelines into consideration when fashioning support orders (e.g., in the context of establishing or modifying a child support order), they are “not an evidentiary burden to be born by the parties.” Curtis at 844.

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

Determining Jurisdiction in Custody Cases Under the UCCJEA

When a parent relocates with minor children following the entry of custody orders, clients are often faced with the challenge of determining where to file post judgment motions.  A relatively recent decision rendered in the Superior Court of Norwich explains the court’s authority, or jurisdiction, in such instances.  In that particular case, the parties were the parents of one minor child.  Although the mother initiated the action, the parties eventually resolved their differences and entered into a comprehensive custody agreement which permitted the mother to relocate with the child to North Carolina.  Approximately eighteen months later, the father filed a motion for modification in Connecticut, presumably requesting that the child be transferred back to Connecticut to live with him on a primary basis.

The court explained that in determining whether it had continuing jurisdiction over the case, it must evaluate the factors set forth in the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Connecticut General Statutes §§ 46b-115 – 115jj.  Although the statute is relatively technical, generally speaking, under the UCCJEA, a court must consider where the child and the parents are residing, whether the child has a significant relationship with the parent living in Connecticut and whether evidence regarding the custody matter is still available in Connecticut.

In determining that it no longer had jurisdiction over this particular matter, the court found that following the parties separation, the child moved to North Carolina with the mother, that the child was residing there on a continuing basis and that the child was enrolled in school there.  Although the father had visitation rights in North Carolina, he failed to exercise those rights and as a result no longer had a “significant” relationship with the child.  The court further found that most of the information regarding the child (i.e., the child’s health and education) was in North Carolina and that substantial evidence concerning the matter was no longer available in Connecticut.

Should you have any questions regarding custody matters, please feel free to contact Attorney Joseph Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Court Grants Wife’s Motion to Dismiss Divorce Action Where Parties Moved to Connecticut with Intention of Returning to California

Before filing for divorce in Connecticut, prospective litigants must satisfy certain statutory jurisdictional criteria.  This often becomes an issue where parties were married in Connecticut, but one spouse (or both) subsequently moved to another state.  As illustrated by a recent decision rendered in the Superior Court of Stamford, this type of situation could impact a court’s ability to hear the case.

In this particular matter, the parties were married in California and were the parents of two minor children.  A few years into the marriage, the husband accepted a two year position in Connecticut.  The wife, a tenured teacher in California, took a two year leave of absence and the parties move to Connecticut with their children.  Approximately two years into the relocation, the husband filed for divorce; however, the wife filed a motion to dismiss, claiming Connecticut did not have jurisdiction over the case.

Upon hearing evidence, the trial court found that the parties still owned investment property in California, that the parties’ bank accounts, driver’s licenses and deferred income plans were located in California, and that the wife specifically took a leave of absence because she intended to return to California following the husband’s two year commitment.  The court also found that by the time it heard the motions, the parties had actually begun the process of moving back to California.  In fact, the wife was once again employed in California and the children were attending school there.

From a legal standpoint, the court explained that “residence” in this state for purposes of establishing jurisdiction requires both domicile plus continuous physical residence.  Domicile, it explained, “implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.”  Williams v. North Carolina, 325 U.S. 226 (1945).  According to the court, in order to obtain a divorce in Connecticut, one of the parties must be domiciled in Connecticut and must establish continuous physical residence in this state for a period of twelve months.  LaBow v. LaBow, 171 Conn. 433 (1976).  Based on its factual findings, the court determined that the parties never abandoned California as their domicile.  According to the court, their actions confirmed their intention to remain Californians and to eventually return there.

The matrimonial attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience handling divorce and custody matters, and assist clients from Greenwich, Stamford, Darien, New Canaan, Norwalk, Westport, Fairfield, and more.  For more information, please feel free to contact managing partner Joseph Maya at (203) 221-3100, or by email at jmaya@mayalaw.com.

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

What to Expect from a Divorce Lawyer

As a divorce lawyer, 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 temperament 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.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation or reach out to our Managing Partner Joesph C. Maya via email at jmaya@mayalaw.com. Divorce is difficult, education is power. Call today.

Wife Found in Contempt of Court’s “Automatic Orders”

In a relatively recent decision rendered in a dissolution of marriage action, a wife was found in contempt for depriving her husband of information regarding the parties’ two minor children in violation of the court’s “automatic orders.”  In this particular case, the parties were married 1991, and were the parents of two children.  At the time of trial the husband was forty-three years old and in generally good health.  He had an associate’s degree and worked for a supply company earning approximately $51,000 annually.  The wife was also forty-three years old and in generally good health.  Although she stayed home to care for the family for a better part of the marriage, in 1999 she began working as an independent contractor selling kitchen products.  Later, she worked for a local board of education, and at the time of trial, was employed with a local newspaper earning roughly $20,000, plus commission, annually.

During the divorce proceedings, the husband filed a motion for contempt claiming the wife violated the court’s automatic orders in that she left the marital residence with the children and refused to disclose their location.  In reviewing the merits of the husband’s motion, the court noted that in a civil contempt proceeding, the movant must show by a preponderance of the evidence the existence of a clear and unambiguous court order, and willful noncompliance with that order.  According to the court’s “automatic orders,” entered upon the commencement of every divorce action, neither party is permitted to remove children from the State of Connecticut without prior written consent of the other parent.  Additionally, a party vacating the marital residence with minor children must notify the other parent of the move, and must provide the other parent of an address where the relocated party can be contacted.  Finally, where parents live separate and apart during a divorce proceeding, pursuant to the “automatic orders,” they must assist their children in having contact with both parents.

In this particular case, the court found that because the wife was served in hand with a notice of automatic orders, she clearly knew she had an obligation to inform the husband in writing of any relocation.  The court found that she also knew she had a duty to assist her children in having contact with their father.  Nevertheless, the wife willfully removed the children from the home, and kept their address from the husband absent a valid reason for doing so.  As a result, the husband did not know where the children were living until the day of trial.  The court further found that the wife willfully kept the children from having contact with their father in violation of the court’s clear and unambiguous automatic orders.

Should you have any questions regarding automatic court orders, or divorce proceedings in general, please feel free to contact Attorney Michael D. DeMeola, Esq.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
________________________________________________________________________________
Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

Keywords: divorce lawyer, divorce, lawyer, attorney, law firm, law office, legal advice, bankruptcy, CT divorce attorney, domestic violence rights, Connecticut, Connecticut divorce lawyers, marital property rights, CT divorce mediation, legal separation Connecticut, child custody laws, child support litigation, contested, uncontested, annulments, alimony, mediator, spouse, spousal support law, asset division, visitation right, premarital agreements, prenup, prenuptial agreement, prenup NY, restraining orders, appeals, custody modifications, legal separation CT, prenup CT, custody CT, filing divorce, filing, new, new haven, lawyers, attorneys, family law, family, Connecticut divorce attorney, divorce law, matrimonial law, custody, child custody CT, property division, dissolution of marriage, marriage, divorce NY, New York divorce, best divorce lawyer, visitation, visitation rights, post marital agreements, divorce law firm

New York Child Support Order Constitutes Impermissible Modification

Where a parent relocates to another state following a divorce, parties are often faced with the challenge of determining where to file post judgment motions.  In some cases, parties must also determine whether new – or different – orders are permitted under the laws of the state to which the former spouse moved.  In a relatively recent decision, a New York court addressed whether it was permitted to enter an entirely new child support order after a Connecticut order regarding the same children had expired.

The parties in this case were married in Connecticut and were the parents of three children.  When they separated, the mother moved with the children to New York while the father continued to reside in Connecticut.  As part of the divorce judgment, the court ordered the father to pay child support in the amount of $250.00 per week per minor child, and to continue providing the children with medical insurance at his sole expense. When the eldest son turned eighteen, the father’s support obligation terminated.

The mother subsequently filed a motion in New York seeking the reinstatement of child support.  In support of her motion, the mother claimed that under New York law, child support is payable until the age of twenty-one.  The father moved to dismiss the petition, arguing that the new order constituted an impermissible modification of the original order issued in Connecticut.  The court dismissed the father’s motion, however, and ordered him to pay child support in the amount of $350.00 per week.

On appeal, the Court noted that under the Full Faith and Credit for Child Support Orders Act, each state must give full faith and credit to another state’s validly issued child support order and shall not seek to modify such order except in limited circumstances.  That legislative scheme, coupled with the Uniform Interstate Family Support Act, establishes that the state issuing a child support order retains continuing, exclusive jurisdiction as long as one of the parties continues to reside in the issuing state.  In this particular case, the Appellate Court found that the father continued to reside in Connecticut and, therefore, Connecticut retained exclusive jurisdiction over the support order at issue.  Because the Appellate Court also found that the new order constituted a modification, it ultimately concluded that the trial had acted without jurisdiction.

Should you have any questions regarding child support, or divorce matters in general, please feel free to contact Attorney Michael D. DeMeola, Esq.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

________________________________________________________________________________
Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

 

Should I File my Family Law Case in Connecticut or New York?

With the mass exodus of New Yorkers amidst the COVID-19 pandemic from New York City to the more suburban lifestyle of Connecticut, the question of where to file family law case actions has been emerging quite frequently.  The first and most critical question that you need to know is whether Connecticut or New York has jurisdiction to hear the case.  In short, the court with jurisdiction retains the official power to make legal decisions and judgments on a case.  But the answer may not be clear-cut.  Here is what you need to know about family law jurisdiction in Connecticut and New York:

Which State Has Jurisdiction for My Divorce Action?

Generally, Connecticut has jurisdiction over a divorce action if one of the following conditions apply:

  1. You or your spouse has lived in Connecticut for at least one (1) year prior to filing for divorce, OR
  2. You or your spouse lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, AND plan to live here permanently.

Similarly, New York has jurisdiction over a divorce action if one of the following conditions apply:

  1.  You or your spouse have lived in New York State uninterrupted for at least two (2) years immediately before the date you start your divorce action; OR
  2. You or your spouse have lived in New York State on the date the divorce action was commended for a period of at least one (1) year, AND one of the following conditions applies:
    1. Your marriage ceremony was in New York; OR
    2. You lived in New York State with your spouse as married persons; OR
  3. You or your spouse have lived in New York State uninterrupted for at least one (1) year immediately before the date you start your divorce action, AND your grounds for divorce occurred in New York State; OR
  4. You and your spouse are residents of New York State on the date you start your divorce action, AND your grounds for divorce occurred in New York State.

Which State Has Jurisdiction for My Child Custody/Visitation Action?

Generally, Connecticut has custody and visitation jurisdiction if one of the following conditions apply:

  1. Connecticut is the home state of the child at the time the custody/visitation application is submitted, and the child has lived in Connecticut for the last six (6) months, or from birth if the child is less than six (6) months old; OR
  2.  The child lived in Connecticut for the last six (6) months, but has been removed from Connecticut less than six (6) months ago by a person claiming to have custody of the child and a parent or guardian continues to live in Connecticut; OR
  3. The child and at least one parent has significant ties to Connecticut and substantial evidence exists in Connecticut concerning the child’s present or future care, protection, training, and personal relationships; OR
  4. The child is in Connecticut now and has been abandoned, or there is an emergency affecting the child’s well-being; OR
  5. No other states have an interest in hearing the case, and it is in the child’s best interest for Connecticut to hear the case.

Generally, New York has custody and visitation jurisdiction if one of the following conditions apply:

  1. New York is the home state of the child at the time the custody/visitation application is submitted, and the child has resided in New York State for the last six (6) months before the start of a custody/visitation action, or
  2. No other state has jurisdiction, or any interested states has declined jurisdiction; and
    1. The child and child’s parents, or the child and at least one parent, have a significant connection with New York State other than a physical presence; OR
    2. Substantial evidence exists in New York concerning the child’s care, protection, training, and personal relationships; OR
    3. All courts having jurisdiction have declined jurisdiction on the ground that New York State is the more appropriate forum to determine custody; OR
    4. No court of any other state would have jurisdiction under the provisions of the statute.

You can now see that when determining where to file your family law matter, often jurisdiction is not a matter of choice, but a matter of law.  While it is possible that your case may be filed in either court, understanding the jurisdictional requirements is crucial in eliminating unnecessary expenses and attorneys’ fees expended by moving a case to the appropriate jurisdiction.  

If you have any further questions concerning the appropriate jurisdiction to file your family law action or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.