Motions for Contempt are typically filed to enforce an existing court order. For example, where a parent owes child support or wrongfully withheld visitation.
In Connecticut, noncompliance of a valid court order is not enough to have a judge hold someone in contempt. The judge must consider the circumstances surrounding the alleged violation and determine whether the violation was willful.
So what does this mean in terms of preparing for a contempt hearing?
You must be prepared. Sounds obvious. But prepared with witnesses for testimony and other documents for the judge to review.
A person cannot be held in contempt simply based on arguments from the parties or other unsworn testimony. The judge must base their decision on evidence.
Check out this recent Connecticut Appellate Court case:
Don't just show up to Court and "wing it."
Get organized with the presentation of your evidence.
Or go home disappointed.
]]>Not getting along with the other parent is not one of them. Neither is remarriage and swapping your new spouse for the other parent.
The three most common grounds are:
1. Abandonment. This occurs when a parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of their child. Think of a parent being absent for an extended period of time.
2. Failure to rehabilitate. This refers to whether or not the parent has successfully addressed certain issues (i.e. substance abuse, mental health) so that they are able to parent and meet the child's needs. Consider if they have turned their life around.
3. No ongoing parent-child relationship. This looks at whether a parent-child relationship currently exists and, if not, whether it would be detrimental to the child's best interests to permit additional time for the development of such a relationship. Think about how the child views the parent or if they have any feelings about the parent at all.
Termination of parental rights is the most serious action a Juvenile Court or Probate Court can take against a parent. Therefore, the standard of proof is higher than in typical custody and visitation case. The judge must find that there is "clear and convincing" evidence to sever parental ties.
]]>Sure - if you lose the Administrative Hearing you can take a second appeal to the Connecticut Superior Court but the odds of winning are mighty long. Like hitting the trifecta at the Kentucky Derby long. Those are lousy odds. And the process is not nearly as enjoyable as a day at the track.
No second chances. No opportunity to present new evidence. No do overs.
The judge merely has to find that the Hearing Officer did not act unreasonably or arbitrarily in deciding to Substantiate Neglect or Abuse and to recommend placement on the DCF Abuse Registry.
Read here how a judge analyzed a recent Central Registry appeal to the Superior Court:
Much better odds when you properly prepare your case for the Administrative Hearing. Sort of like Tiger against the field - at least when he's playing well.
]]>Here it is: http://www.cga.ct.gov/2013/TOB/h/pdf/2013HB-06685-R00-HB.pdf
As with most proposed Bills, there is spirited debate.
My thoughts:
I certainly support (at least in theory) the notion of both parents playing an active and meaningful role in child's life. Whether that role truly means an equal division of parenting time is very fact dependent. It is not always practical or best for the child. When deciding issues pertaining to children we cannot paint with too broad of a brush.
The presumption may even increase the number contested custody cases and trials where the issue centers on whether the presumption in a particular case has been rebutted.
The concept between legal custody (decision-making) and physical/residential custody is lost in this Bill.
I am in favor of sanctions being imposed against any parent who engages in manipulative actions involving their child. Bravo. But litigation would be required to prove such behavior. Again, this Bill will not reduce custody litigation.
Thoughts?
]]>Jackknifing refers to a truck accident where the cab and trailer "swivel" on the linkage until they form a V shape. We would all be lucky if these accidents only caused traffic backups yet tragically, they cause serious injuries to the drivers and passengers of cars in close proximity to the jackknife.
From a legal standpoint, a jackknife itself is not enough to establish negligence and to hold the truck driver responsible for injuries to others on the highway. For example, the truck driver may claim there was no choice but to slam on the brakes or swerve to avoid another vehicle and actually, another driver is at fault.
Therefore, properly investigating all the facts and surrounding circumstances are necessary to build a solid case against the driver and the trucking company.
Here are some possible ways to demonstrate truck driver negligence:
Remember, negligence must be proved in all car and truck accidents in order to be awarded any compensation.
]]>For example, if there is little or no property damage and no injuries no need to get a lawyer involved.
But when a driver or passenger is injured, you should at least consult with an attorney.
Here are some reasons why and what a personal injury lawyer can help you with:
1. Free consultation. Just about every personal injury lawyer offer no cost consults. You can get your case evaluated with nothing more than your time spent.
2. Deal with insurance adjusters. The insurance company wants the case to go away as soon as possible. Often, they will make an offer that seems enticing but is much less than the true value of the case. A lawyer can assess what your case is worth. Plus, many people are too busy to field calls from adjusters and haggle about settlement.
3. Gather evidence. In some car accident cases, it is clear who was "at fault." Other times, liability is questionable. In those cases, it is critical as soon as possible to obtain witness statements, investigate the accident scene and document other important information.
4. Apply the law. A car accident can be caused by simple negligence. Yet other times, the conduct of a driver was more than negligent - it was reckless. The filing requirements and the amount of damages depend greatly on the specific conduct of the drivers involved. In addition, failing to meet a statute of requirements will forever bar any recovery regardless of the severity your injuries.
]]>As a general rule, the procedure and the law which is applied in a same sex divorce is similar to a "traditional" Connecticut divorce. The differences that do arise have to do with federal law.
In 1996, the Defense of Marriage Act (DOMA) was enacted. This act specifically defines marriage as a union between a man and a woman. Therefore, federal law does not recognize same sex marriages. As a result, same sex divorces may differ from "traditional divorces" in the following ways:
1. Federal tax consequences. Same sex couples cannot file joint federal tax returns and cannot claim each other as a tax exemption. However, same sex couples are able to file joint Connecticut tax returns.
2. Social Security. A same sex spouse is not entitled to survivor benefits.
3. Retirement Plans. Certain retirement plans, like a federal pension, may not allow a distribution to a same sex spouse.
4. Child custody. If a parent relcoates to a state that does not recognize same sex marriage, custody orders may not be enforced and the collection of child support difficult.
5. Alimony/spousal support. Alimony is taxable to the recipient and a "write off" to the payor. The IRS however has no regulations to address the tax consequences of alimony in the context of a same sex divorce.
Although the laws in Connecticut do not distinguish between a same sex divorce and "tradtional" divorce, it is vital to understand the impact of federal law when negotiating a same sex divorce settlement.
]]>In some Connecticut divorces, emotions flare. So naturally, it's time to fan those flames and dial up the "bulldog" lawyer.
The kind that won't take bull$h!t from your spouse and their lawyer.
The kind that will be "aggressive" and nail your soon to be ex.
The kind that will take the case to trial and won't be intmidated by considering their f'in insulting settlement offer.
You want your pound of flesh (and the blood that goes with it).
Hey - that's your call. Just be prepared to pay much more coin than you need to.
And if ever the "sticker shock" wears off, I trust you will have serious reservations. You might even realize that your result was no better (and maybe worse) than a more settlement focused approach could have yielded
Here's a great blog on this topic:
If you want an expensive divorce - get an aggressive lawyer « Bluegrass Family Law
To be sure, there are contested divorce cases that legitimately need to proceed to trial. But the vast majority should settle.
Think settle first and trial as a last resort. That's the mindset.
You aren't soft for doing so.
]]>Now the tricky part: getting divorced.
Here is quick analysis:
1. Does the state recognize the same-sex marriage as a legal relationship?
A same sex couple can only get divorced in a state that recognizes same-sex marriage. At last count, including Connecticut, there were six states that allowed same-sex marriages. Clearly, these states also permit same-sex divorces. Three other states, (New York, Rhode Island and Maryland) do not permit same-sex marriages but recognize same-sex marriages performed in other states as legal. Therefore, they allow same-sex couples to obtain a divorce in their state.
And that's it. No other states will grant a same-sex divorce.
But it's not as easy as just finding a state that will grant a sex-same divorce.
2. Do one of the spouses meet the state residency requirement?
All states have residency requirements that must be satisfied before a court of that state will grant the divorce. In Connecticut, as a general rule, the residency requirement is 12 months. There are limited exceptions to the 12 month residency requirement. The point to keep in mind is, whether it is Connecticut or another state that grants same-sex divorce, a spouse must have a legitimate connection to that state before a court will hear the case.
]]>So, what are the essential elements of Parenting Plan?
At a minimum, every Parenting Plan in Connecticut should address the following:
Sure, there are particular cases which require that the Parenting Plan deal with other matters and address very specific issues.
But for many families the above list just about does it.
]]>Shared custody refers to a parenting plan where both parents have equal or at least substantial parenting time with the child(ren). The child(ren) essentially has two homes and spend significant periods at both homes.
Split custody is in arrangement where siblings live in different households. The children are split - hence "split custody". It does not mean an equal split of parenting time as some use the term.
Here are few reasons why a judge would order split custody:
1. Informed preferences of a child. One child may have a strong preference and legitimate reasons for living with one parent rather than the other.
2. Fighting sibs. Unfortunately, sometimes it's best for the entire family that siblings not live together. It's typically more than just not getting along or some form of sibling rivalry. For example, frequent altercations or behavior that's so disruptive requiring the siblings to reside in separate homes.
3. Relocation. When a parent wishes to move long-distance, one of the children may prefer to stay behind and reside with the other parent while another child relocates. This often occurs in older children where they have strong ties to school, friends and activities in their present community.
]]>At the time a divorce is entered, a parent may leave Connecticut and relocate with the child if a judge finds that such a move is in the child's best interest.
When a custodial parent seeks to relocate after a divorce is finalized, the relocating parent must satisfy certain criteria set forth in Connecticut General Statutes 46b-56d.
Here's a blog about the requirements for relocation post-divorce: Relocating with children after a divorce - the law in Connecticut - Bridgeport, CT Metro/Family and Personal Injury Law Blog |
A recent case in Norwich highlights how a judge might analyze a proposed move at the time of divorce.
The mother requested permission to relocate to Tennessee. She had family support there with free housing and childcare.
The father objected since he would it be difficult for him to establish a bond with his 18 month old daughter from a distance.
The judge allowed the mother to move citing the economic benefits of the move and because the mother agreed to generous and flexible with visitation.
]]>This means that at the time of the divorce or legal separation, the court can assign either spouse any or all of the property of the other regardless of how title is held or when the property was acquired.
In deciding property distribution, a Connecticut divorce court will consider the following factors:
A few points.
Equitable does not mean equal. Equitable essentially means fair. Therefore, judges can, and sometimes do, allocate more assets to one spouse.
A misconception exists that assets received through inheritances are not part of the marital estate. Not true. Inheritances are part of the marital estate and subject to being distributed upon divorce.
Another misconception is that a spouse automatically retains what he or she brought into the marriage. There is no absolute right to keep what you came into the marriage with.
These two "misconceptions" illustrate why it is often a wise decision to execute a prenuptial or postnuptial agreement.
]]>In 1973, Connecticut adopted "no fault" divorce - irretrievable breakdown. This simply means that a judge is not required to make a finding as to which spouse is at fault for the divorce. This allows uncontested divorces to be granted without fanfare.
But this does not mean that fault is never an issue in a Connecticut divorce, especially for those cases that go to trial.
In fact, fault may be relevant to a judge in terms of alimony, property distribution and the assignment of debts/liabilities. When fault impacts parental fitness, it becomes important in determining custody, visitation and an overall parenting plan.
]]>1. Was the agreement signed voluntarily? For example, a party may claim that he/she signed under duress because the agreement was presented very close to the wedding day.
2. Was the agreement "unconscionable" when it was signed or "unconscionable" at the time of divorce? Unconscionable does not mean unfair or even unreasonable. It is a higher standard. Think very one sided.
3. Was there reasonable financial disclosure before signing the agreement? There should be disclosure concerning the income of each party, the amount, character and value of all property as well their financial obligations (debts). A good practice is the mutual exchange of tax returns and statement of assets and liabilities of each party signed under oath. Be as transparent as possible.
4. Were the parties afforded a reasonable opportunity to consult with independent counsel? This does not mean that each party retained or conferred with a lawyer. However, they must have been allowed a reasonable amount of time to do so. If one of the parties did not confer with independent counsel despite a reasonable opportunity to do so, language should be included in the agreement to this effect.
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