Divorce – FAQs
DISSOLUTION OF MARRIAGE
1. My marriage is “in trouble”. Should I seek counseling?
If the problems in your marriage have reached a crisis stage and you are considering a divorce (dissolution of marriage), first explore all possibilities of saving your marriage. Often, marriages can be saved with the help of skilled marriage and family counselors. If you do not know a counselor, we can recommend one who is properly qualified.
If your marriage cannot be saved, there is still a good chance that you can negotiate a divorce that is fair to both of you without an angry and destructive battle.
It is possible to negotiate your differences in a reasonable way. With the lawyer’s help, negotiations with your spouse can be productive and fair. Trouble starts when a husband or wife demands too much or offers too little. Reasonable positions lead to reasonable solutions, which lead to divorces that are less painful, less destructive, and less expensive.
Counseling helps reduce the anger that some people feel during divorce proceedings. Angry divorces tend to be expensive——financially and emotionally. Your attorney’s fee will depend in large part on how many hours are spent on your behalf. Angry divorces take more time and thus cost more money.
2. What is “no-fault” divorce?
In order to obtain a divorce in Connecticut, it is not necessary for either party to prove that the other was responsible for the breakdown of the marriage. One party must merely believe that the “marriage has broken down irretrievably”.
However, the issue of fault over the breakdown is not completely irrelevant, as the “cause of the breakdown” is one of the elements to be considered in connection with any property division or alimony orders.
3. Can both spouses use the same attorney?
No. An attorney cannot represent more than one client in a case where there is the possibility of a conflict of interest between those clients. Each party has his or her own demands and concerns regarding alimony, custody, support, and the property settlement. It is impossible for one attorney to represent the interests of both parties.
Occasionally, if both parties have worked out all the details for their divorce (for example, where the two spouses have lived apart for several years, have already split up their property, and made arrangements for child custody, visitation, and support), one attorney may agree to prepare all the paperwork. However, that attorney can only represent one party. The other spouse has no legal representation. If conflict arises, that spouse must obtain his or her own attorney.
4. Can I represent myself in a divorce action?
Individuals can and do represent themselves in divorce actions. However, it is almost always in a party’s best interest to be represented by a competent lawyer during the divorce process, particularly in cases where custody, visitation, child support, or property distribution is in dispute. While attorney’s fees may seem expensive, the stakes in a marital dissolution action are usually quite high. Moreover, the procedures required by the courts are often very complicated to one not familiar with the requirements. If an individual cannot afford a lawyer, he or she should contact the appropriate regional office of legal services and apply for legal assistance.
5. What is a collaborative divorce?
Collaborative divorce is an alternative to the adversarial divorce process where professionals and the spouses or partners commit in writing to work together to help the couple reach a divorce settlement out of court, which addresses the needs and interests of the couple and their family.
6. What is mediation? If my spouse and I agree to mediation, do we need a lawyer?
In mediation, the parties meet with an impartial individual for the purpose of helping them reach an agreement. The individual should have specialized training and qualifications. Many mediators are not licensed to practice law and should not render legal advice to either party during the mediation. Mediation, if taken seriously by both parties and properly executed by the mediator, can help parties work cooperatively in resolving their disputes without expensive litigation. However, it is important that the parties consult with their own lawyers prior to any mediation and secure advice about the legal ramifications and fairness of any proposed agreement.
7. What is a “legal separation”?
A legal separation requires all of the same legal steps as a dissolution of marriage (divorce), including residence, grounds, pleadings, and court appearances. The only difference is that when the decree is rendered, the parties are “legally separated” rather than “divorced” and are, therefore, not free to remarry. Unless there is an order or agreement to the contrary, rights of inheritance and the duty to support may remain.
A legal separation may be changed to a dissolution of marriage (divorce) by either party asking for a dissolution at any time, unless they have filed a declaration that they have resumed their marital relations.
Married couples who wish to do so may separate, and live apart, without court permission. The benefit of a court-ordered separation is that the court will establish responsibilities for alimony, support, custody, etc., eliminating uncertainty.
A separation agreement signed by the parties will have many of the legal implications of a court-ordered “legal separation.” Such an agreement should only be entered into with advice of counsel.
8. How is an action for dissolution of marriage started?
To obtain a divorce in Connecticut, one of the parties must have resided in the State for at least one year prior to the date of the decree. The legal action is started with a formal complaint. This is a document that gives some of the facts of your marriage and the claim for relief. The claim for relief asks for such things as alimony, custody, child support, a division of property, or counsel fees.
The complaint is served by a Deputy Sheriff, and contains a summons that directs your spouse or his or her attorney to file a response with the court on a certain day (called “the return day”). A form called an “Appearance” should be filed by the defendant spouse or his or her lawyer so that all further information about the case can be mailed to them. The person served with a complaint for dissolution of marriage can choose not to file an appearance form, but will then have no notice of what happens in the case and may be subject to court orders without an opportunity to be heard.
9. What is the waiting period?
There is a period of 90 days after the return day before either party can have the marriage dissolved. Divorces frequently take longer than 90 days—sometimes over a year in the case of a contested divorce. Courts in some judicial districts are more backlogged with cases than courts in other districts. Your lawyer can tell you how long on average it will take in your judicial district to have your case reached. If you have not retained a lawyer, you can check with the court clerk for your judicial district.
10. What temporary relief is available?
While waiting for the 90-day period to end, either spouse may ask for temporary orders of custody, support, visitation, alimony, or ask the court to resolve any other disagreements between the parties. It is also possible for either spouse to seek orders requiring the other to participate in reconciliation conferences. If family violence erupts during the 90-day waiting period or at any other time, the police will make appropriate arrests if they are summoned. In addition, restraining orders protecting either spouse (or children or other parties or family members) from abuse can also be issued by either the civil or criminal courts.
11. What is the difference between a contested and an uncontested divorce?
At the end of the 90-day waiting period, depending on whether or not the action is contested, the case can either be assigned for trial as a contested matter or can be assigned for a hearing as an uncontested case.
Divorce cases are most often contested when the parties disagree about money or children.
If a case is uncontested, the court need hear the testimony of only one party, and will then approve the parties’ agreement if the court finds it to be fair and equitable.
If the parties cannot agree about the financial aspects of the marital breakup or about the custody or visitation of the children, the case is contested and both parties will appear for trial before a judge or a referee. A referee is a retired state court judge to whom contested divorces are “referred” (hence the name “referee”) for trial.
12. What is considered in deciding issues of alimony and property distribution?
In Connecticut, a court may order either of the parties to pay alimony to the other. In deciding the amount of alimony to be ordered, the Legislature has ruled that the court shall take into consideration the length of the marriage, the causes for dissolution of marriage or legal separation, the age, health, station, occupation, amount of sources of income, vocational skills, employability, estate and needs of each of the parties, and any property award which may be made to either husband or wife. In addition, where a parent has been awarded custody of minor children, the court will examine the desirability of the custodial parent’s securing employment.
Connecticut courts may also give either the husband or wife any part of the estate of the other, including real property. In making assignments of property, the same standards applied in alimony awards will be used, as well as the chance of the husband and wife for future acquisition of capital assets and income. The contribution of each of the parties to the purchase, preservation or appreciation in the value of their estates will be considered an integral part of any assignment or property.
There are numerous other questions dealing with alimony and property distribution such as:
- Does it matter that I had property prior to the marriage?
- What happens to inherited assets?
- Does it matter in whose name certain property exists?
- Does it matter that I never worked outside the family home?
- What happens to the unpaid bills?
The answers to such questions are often dependent on the “facts” of the individual marriage and are best left to be answered by your lawyer.
13. Are court orders modifiable?
Support and custody decisions are always modifiable, as circumstances may change, as is alimony unless otherwise specified. Property divisions are not modifiable.
14. What are the standards established under Connecticut law for the child support obligation?
In deciding upon child support, the court will consider both the ability of each of the parents to pay support and the needs of the child. The court considers the child’s age, health, station, occupation, earning capacity, amount, and sources of income.
The court must also consider Connecticut’s Child Support and Arrearage Guidelines. The guidelines are income-based and indicate the appropriate level of child support based upon the parties’ incomes and the number of the minor children. The guidelines are usually conclusive although the court is permitted to establish a different level of support based upon the particular facts and circumstances of the case.
The age of majority in Connecticut is 18, but, as a general rule, child support may continue until a child reaches the age of 19 or completes the twelfth grade, whichever occurs first. Courts in Connecticut may order either parent to contribute to college expenses under certain circumstances.
15. Who is entitled to custody of minor children?
The court may assign custody of any minor child to either parent, to the parents jointly, or even to a third party, based upon the particular facts of the case. The court will be guided by the best interests of the child, giving consideration to the wishes of the child if he or she is of sufficient age and is capable of forming an intelligent preference. The causes for the dissolution of the marriage or legal separation may also be considered in making a custody award.
Where the parents have reached an agreement, the court will usually be guided by that agreement; but, when the parents are litigating custody, the court will not only hear the parents’ cases, but may also appoint a lawyer for the children so that their interests may be represented. The parents will be responsible for the fees of the children’s lawyer.
The court is required by statute to order the parents of any minor child or children to attend parental educational programs in any action dealing with the dissolution of marriage, legal separation, annulment, custody, visitation, and child support (not including matters brought to temporary restraining orders for domestic violence).
16. What are visitation rights?
Visitation rights may be granted to the non-custodial parents based upon the best interests of the children. The court may also grant visitation rights to third parties, such as grandparents. Where necessary to protect the best interests of the children, the court may limit or require supervised visitation. The court will set the frequency and times of the visits in its discretion. Traditionally, Connecticut courts prefer to grant the non-custodial parent “reasonable” rights of visitation, without establishing a specific schedule, allowing the children and parents to work out their own flexible program.
17. What is joint custody?
In Connecticut, joint custody means that both parents continue to make major decisions about the children’s upbringing. It may also, but not necessarily, mean that physical custody is shared. The court may award joint legal custody but not joint physical custody. There is a presumption in favor of joint custody when both parties agree to it. If both parties do not agree to joint custody, the court will probably not order it.
18. Can a woman change her name after the divorce?
Under Connecticut law, a woman has the right to decide what name she will use after the divorce. If a woman decides to resume the name used prior to marriage, the easiest method is to ask the judge for a “change of name” as part of the divorce decree.
If a woman doesn’t change her name at the time of the divorce, she may still change it later. She can either go back to court to have her name changed or do it by “common law” method, i.e., using the name she chooses consistently, and changing all official documents to that name.