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Family Law Update: Postnuptial Agreements Now Valid and Enforceable in Connecticut

Upon beginning an action for a divorce, many people will disclose to their lawyers that the parties had already contemplated the end of their marriage, sometimes many years before. More often than one would guess, the parties had even mapped out this projected end to their relationship with an agreement written during the marriage itself – maybe hammered out on the family computer, or perhaps scribbled on a restaurant napkin – which was intended by the parties to govern the terms of any divorce that would loom in the future.

With a waiver of alimony, a promise to exclude inheritance proceeds, or a pledge to leave the marital home – an intended postnuptial agreement could be as flexible and varied as the complex circumstances of the marriage itself. However, unlike their premarital cousins (agreements executed before marriage are governed both Connecticut General Statutes Section 46b-36b et seq. and controlling precedent), postnuptial agreements had not been officially recognized by the Connecticut Supreme Court and the prospects of their enforceability at trial was nebulous at best.

In the recent decision of Bedrick v. Bedrick (SC 18568, 200 Conn. 691, decided April 26, 2011), the Connecticut Supreme Court has for the first time set forth parameters to test the enforceability of postnuptial agreements, noting that “we must now consider what standards govern their enforcement. Neither the legislature nor this court has addressed this question.” Bedrick, at 699.

Addressing first the question of whether postnuptial agreements are contrary to public policy, the Supreme Court concluded in the negative. While historically, the Court had determined that prenuptial agreements (as an example) were generally held to violate public policy if they promoted, facilitated, or provided an incentive for separation or divorce” (citing McHugh v. McHugh, 181 Conn. 482, 488-89 (1980)), it has been more recently decided that “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine” (see Billington v. Billington, 220 Conn. 212, 221 (1991)). The Bedrick court now opined that “postnuptial agreements may also encourage the private resolution of family issues. In particular, they may allow couples to eliminate a source of emotional turmoil – usually, financial uncertainty – and focus instead on resolving other aspects of the marriage that may be problematic.” Bedrick, at 698.

In this case of first impression, the Supreme Court expressly acknowledged the heightened scrutiny that must be applied to a trial judge’s review of a contract between already married persons, noting that “spouses do not contract under the same conditions as either prospective spouses or spouses who have determined to dissolve their marriage.” In its analysis, the Court points out that already married spouses are “less cautious” in a contractual relationship with one another than they would be as prospective spouses, and similarly, are “certainly less cautious” with one another than they would be with an ordinary contracting party. “With lessened caution comes greater potential for one spouse to take advantage of the other.” Id, at 703.

As such, the law now requires trial courts to enforce a postnuptial agreement only if it complies with applicable contract principles (including the element of consideration, or in layman’s terms, the “give and take” in any contractual arrangement), and if the terms of the agreement are both fair and equitable at the time of execution and if those terms are not unconscionable at the time of dissolution of the marriage. To determine whether terms are “fair and equitable” at the time of execution, a court will look to whether the agreement was made voluntarily, without any undue influence, fraud, coercion, or duress. In addition, as with prenuptial agreements, there must be a factual finding that each spouse was given full, fair, and reasonable disclosure of all property, assets, financial obligations, and income of the other spouse when entering into the contract.

Importantly also, the Court further held that “unfairness or inequity alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution.” Id, at 706. Trial courts are charged with applying a “totality of the circumstances” approach to determining the fairness and equity of enforcing a postnuptial agreement.

With this significant legal decision now available as a roadmap for divorce litigants and their counsel, it is critical now as always that you consult with a knowledgeable and experienced family law attorney in determining your rights relating to an impending divorce. Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

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Our family law firm in Westport Connecticut 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. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Not So Fast: Connecticut Courts Consider Length of Marriage – Not Courtship or Cohabitation – When Determining Awards in Divorce

At the outset of a divorce proceeding, many clients will ask what they might expect from a court – or in a settlement agreement – in connection with alimony or the division of marital assets. One of many statutory factors a court may consider in fashioning support orders or property distribution is the length of the parties’ marriage. See C.G.S. § 46b-81, 82. With increasing frequency over the past several decades, however, many parties may enter a divorce proceeding with a significant period of time before the marriage during which the parties lived together as unmarried people – sharing home expenses, purchasing assets together, and accumulating marital wealth (or debts). The common expectation is that a judge would consider not just the length of the parties’ marriage, but also the length of time they lived together as unmarried people when determining what awards would be appropriate in a divorce. The law, however, takes a sharply different view.

Like many other states, Connecticut does not recognize common-law marriage as a matter of public policy. Indeed, the law “has been construed to require the marriage contract to be entered into before authorized persons and with certain formalities which the state has prescribed.” Hames v. Hames, 163 Conn. 593 (1972). Although two persons might cohabit and conduct themselves as a married couple, the law of this state neither grants to nor imposes upon them marital status. McAnerney v. McAnerney, 165 Conn. 277 (1973). Cohabitation by unmarried individuals does not in and of itself create any legal or support obligations. Boland v. Catalano, 202 Conn. 333 (1987).

Given the clear distinction in the common law between marriage and cohabitation, and in awarding greater rights and protections to people who make the formal legal commitment of marriage, the Supreme Court has determined that it would be incongruous for a divorce court, when entertaining financial orders, to take into account a period of premarital cohabitation as an additional equitable consideration. Loughlin v. Loughlin, 280 Conn. 632 (2006).

In other words, neither party in a divorce action may seek additional protections, rights, or awards from the court based simply on the length of time the parties had lived together prior to their marriage. Nevertheless, the Loughlin holding has left a window of opportunity open – however narrow – which might allow a court to consider “events” that occurred during the period of cohabitation as “indirectly” bearing on other statutory criteria for awards of support and equitable distribution (such as the health, station, occupation, amount and sources of income, vocational skills, and employability of the parties). Only a court’s strict consideration of premarital cohabitation as part of the “length of marriage” in a dissolution action is improper and prohibited by law.

In the event that your marriage was preceded by a significant period of premarital cohabitation, you should consult with a knowledgeable and experienced attorney to determine your rights in a divorce action. Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
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Our family law firm in Westport Connecticut 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. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Alimony Alert- September 2, 2011

On July, 15, 2011, following trial in a Stamford based dissolution action, Judge Wenzel ordered the defendant husband to pay alimony to the wife as follows: from August 1, 2011 to December 31, 2011, the sum of $9,500 per month; from January 1, 2012 through December 1, 2012, the sum of $8,000 per month together with 30% of his gross income between $200,000 and $350,000; from January 1, 2013 through December 31, 2014 (or the closing for the sale of the marital residence, whichever occurs first) the sum of $6,000.00 per month together with 20% of his gross income between $200,000 and $300,000; and from January 1, 2015 until his 65th birthday, the sum of $4,000 a month.

The Court found that the parties were married for approximately twenty-two (22) years. Before marrying, they both lived and worked in New York City. They moved to Connecticut around the time they got married and bought a house in Stamford. In the late 1990s, after having three children, one of which was diagnosed with autism, they moved to New Canaan, where they purchased a new home.

The wife accused the husband of having multiple affairs, although the court noted she was unable to support her suspicions. The wife also alleged that over the course of the marriage the husband spent long hours at his business, traveling frequently and staying at work late into the night, leaving her with all the responsibilities of running the household and caring for their special needs child.

The Husband denied the affairs and alleged that the wife had an extra-marital relationship of her own. The wife concealed the physical component of the relationship for several years, but finally admitted to it immediately before her deposition. The Court ultimately found the causes of the divorce to be attributable to the wife, and that her accusations were made solely for tactical reasons. Nevertheless, the court held that its assessment of the cause of the breakdown of the marriage could not play a significant role in fashioning its alimony award. Instead, it considered the length of the marriage and the fact that there had been great hardship and stress during the last half of the parties’ relationship.

Alimony Alerts are prepared by Michael D. DeMeola of Maya Murphy, P.C.
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Our family law firm in Westport Connecticut 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. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Alimony Alert- September 9, 2011

On July, 11, 2011, following trial in a Stamford based dissolution action, Judge Wenzel awarded the defendant wife both periodic and lump sum alimony. Pursuant to Judge Wenzel’s orders, the plaintiff husband is obligated to pay to his now ex-wife $3,000.00 per month for a period of three years (from August 1, 2011 through July 31, 2014). With respect to lump sum alimony, the plaintiff must pay his ex-wife $100,000.00 in four equal installments of $25,000.00. The payments are to be made on August 15, 2011, December 15, 2011, April 15, 2012 and August 15, 2012.

The Court found that the parties were married on May 30, 2007 in Westport, Connecticut. The husband is an attorney, and when the parties married, earned over $300,000.00 per year. In 2008, he received a total of $537,000.00 in income which included a substantial severance package. Since 2008 he had been working forty hours per week as a temporary attorney earning approximately $75.00 per hour. The defendant wife was employed in the advertising industry for 31 years, but was terminated just before the parties’ marriage. During the marriage, however, she worked in publishing and advertising. The court did not make a finding as to the defendant’s actual earnings or earning capacity except to the extent that it noted she earned far less than the plaintiff. At the time of trial, the defendant was unemployed and receiving unemployment compensation in the amount of $2,150.00 per month. Each party has two children from previous marriages, but none from their marriage to one another.

In fashioning its alimony award, the Court noted that it considered the factors set forth in Connecticut General Statutes §46b-82. Although it did not state which of those factors it relied upon, it appears the Court did not assign fault to either party. The Court did note, however, that although the defendant has an earning potential, it is far more limited than that of the plaintiff, and she has far fewer resources to rely upon. The Court further stated that its periodic alimony award is meant to help the defendant rehabilitate both in terms of her job skills as well as her physical and emotional condition.

Alimony Alerts are prepared by Michael D. DeMeola of Maya Murphy, P.C.

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Our family law firm in Westport Connecticut 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. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Court Enters 10 Year Alimony Award in Wilton Divorce

In Brush v. Brush, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. FA104019594S (Dec. 15, 2011, Shay, J.), the plaintiff wife and the defendant husband were married for approximately 21 years, and were the parents of two minor children. During the divorce, the children- ages ten and fifteen- resided in the marital home in Wilton, Connecticut pursuant to a bird nesting arrangement which the parties agreed upon as part of a parenting plan.

At the time of the divorce, the wife was 47 years old, and suffered from various medical conditions, from chronic Lyme Disease to depression and anxiety. She held a Bachelor of Science degree in Fashion Design and Resource Management, and prior to the parties’ marriage, worked in the clothing industry in Connecticut, New York, Maine and Massachusetts. The Court found that the wife was a very talented designer and seamstress who at one point during the marriage developed and fabricated her own line of children’s clothing. After two years, however, the wife closed her business when it became apparent that it would not be profitable. At the time of the divorce, she was a full-time homemaker.

The husband was 46 years old, and held a Bachelor of Science degree in Psychology as well as a Masters degree in Industrial and Labor Relations. He described his health as “good,” although he told the court that he took medication for a hereditary thyroid condition as well as for high blood pressure. He also suffered from occasional stress, but indicated that none of the conditions adversely affected his ability to work. The Court noted that the husband worked for a variety of corporations in Kansas, Texas, Ohio and New York. At the time of the divorce proceedings, he was Chief Human Resources Officer and his annual base salary was $242,000.00 plus an annual bonus, an automobile allowance, and certain non-cash benefits including stock options.

With respect to the cause of the breakdown of the marriage, the parties cited various factors including different parenting styles, lack of intimacy, loss of interest in each other, personality conflicts and different approaches to personal finances. The Court ultimately found that both parties contributed to the breakdown of their relationship. Regarding finances, the Court found that the husband’s net income was $4,403.00 per week, and the wife had no income.

With respect to support, the Court ordered that commencing the first day of the first month following the husband’s vacation of the marital home, but no later than March 1, 2012, and monthly thereafter, the husband shall pay to the wife 35% of his gross cash compensation from employment as and for unallocated, periodic alimony and child support, until the death of either party, the remarriage of the wife, the entry into a civil union by the wife, or December 31, 2022, whichever shall sooner occur. The Court designated the term of alimony as non-modifiable, and granted the wife a safe harbor up to $40,000 per year. However, the Court also capped the wife’s alimony at 35% of the husband’s income up to $400,000 per year.

Should you have any questions relating to alimony or divorce proceedings, please feel free to contact Michael D. DeMeola, Esq. by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut 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. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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In Recent Divorce Action, Court Awards Wife 30% of Husband’s Income Over $85,000

In a recent divorce action, the Superior Court of Waterbury rendered a decision awarding a wife $250.00 per week in alimony, plus thirty percent of the husband’s income over $85,000.00. The parties were married in 2004, and were the parents of two minor children. At the time of trial the wife was forty-one years of age, was in generally good health, and possessed both a bachelor’s degree and master’s degree. During the marriage she had been employed as an administrator, and was currently earning just under $50,000.00 per year based on a thirty-two hour work week.

The Husband was forty-three years of age, was in generally good health, and possessed a bachelor’s degree. He had been employed as an administrator for a relocation company for several years. Although his annual salary was $85,000.00 per year, at various times he also received a bonus.

With respect the cause of the breakdown of the marriage, the wife claimed that the parties disagreed about household responsibilities and child care, that the husband was not responsive to her needs, and that she was unappreciated. The wife also testified that she was devastated upon learning of the husband’s affair. The husband, on the other hand, claimed that parties lacked communication for at least two years, that he was not appreciated for his contributions, and that the wife was overly tied to her family. The court found the wife’s claims to be more credible, although it appears it ultimately did not assign fault to either party.

In its written memorandum of decision, the court ordered the husband to pay the wife child support in the amount of $260.00 per week, as well as periodic alimony of $250.00 per week for a period of five years. As additional periodic alimony, the court ordered the husband to pay the wife 30% of any gross earned income received in excess of $85,000.00 per year.

Should you have any questions regarding alimony, 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.

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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.

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