Court orders are not considered modified unless and until the agreement is put in writing, approved by a judge and made a court order. In fact, most Separation Agreements include language that the terms of the Agreement cannot be modified unless “in writing and executed with the same formalities of the Agreement.”
What happens when parties fail to put the understanding in writing and make it a court order? The terms of the original Separation Agreement control and a significant child support arrearage can accrue.
A recent Connecticut Appellate Court case illustrates this point.
Facts: The father was ordered to pay $2,500 per month in child support pursuant to the terms of the Separation Agreement. The Agreement included language that the Agreement could not be modified unless in writing and executed with the same formalities of the Agreement. The parents verbally agreed to modify the Agreement. Thereafter, the father stopped paying child support but paid $478,000 toward private school tuition. Eventually a disagreement concerning payment for another child’s tuiton ensued. The mother then filed a Motion for Contempt based on the father’s failure to pay child support since 1998.
Ruling: The court found that the verbal understanding was ineffective to modify the child support order. The father was ordered to pay $225,000 in past due child support plus the mother’s attorney’s fees incurred in pursuing the enforcement action.
Rationale: The tuition payments did not lessen the obligation to pay child support. The court order for child support was not modified by a verbal understanding between the parties. The father should have made the verbal agreement a court order.
What to do?: File a Motion for Modification if there is an “understanding.” Then put the agreement in writing and request a judge to make it a court order.
Do not expect the court to honor an informal understanding.
According to the Connecticut Law Tribune:
Quick summary: The Plaintiff was rear ended. The Defendant gave multiple and varied accounts of what happened presumably in an effort to blame the Plaintiff for the accident.
The injuries: Plaintiff suffered neck and shoulder pain, had two surgeries on his shoulder and went through a period pf physical therapy. Plaintiff’s doctor assigned a 27% permanent partial disability rating to the shoulder.
The defense: The Defendant contested liability for the accident. Further, the Defendant denied that the accident was the cause of the shoulder injury. Instead, the Defendant claimed that the Plaintiff’s shoulder injury was a pre-existing condition and that two surgeries resulted in an additional disability to the shoulder.
The parties: The Defendant gave varying accounts of the accident. The Plaintiff’s attorney felt that he was not credible. On the other hand, the Plaintiff with his injuries was struggling to take care of his disabled father. The jury may have concluded that the accident victim was a sympathetic Plaintiff.
The damages: The jury awarded $86,645 for medical bills and $725,000 for non-economic damages (pain and suffering, mental anguish, permanent disability).
I get calls from people who are exasperated about information posted about them online. They are frustrated and want to know if they have a defamation case. The answer is usually no. The reason is section 230 of the Communications Decency Act which provides Section 230(c)(1) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third parties. In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. Each of the three prongs to gain the benefit of the immunity:
- The defendant must be a “provider or user” of an “interactive computer service.” This means internet service providers and social media websites.
- The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.
- The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.
Section 230 acts as significant hurdle to plaintiffs suing a website or online service provider for online defamation. Why? Because the courts, based on Section 230, extend special protections to operators of online services; they cannot be held liable for remarks made by third parties even if the statements are false and damaging.
A recent study showed that more than 75% of online defamation cases were dismissed based on Section 230.
However, there are some ways to minimize the damage or get the information removed. There have been cases where a defendant once they are sued voluntarily removes the content. Sometimes the websites cease operations or in other cases the online provider or website settles with the plaintiff outside of court.
In a small number of cases a court has actually sided with the plaintiff and ordered a provider of online services to comply with certain court orders.
Of course, if the identity of the individual making the defamatory statements is determined, there is the potential to bring a claim directly against him or her.
What do others think about section 230 of the Communications Decency Act? Is it too broad? Way too broad? Is it just a license to be irresponsible? I welcome opinions and thoughts about this topic.
What are some of the reasons to consider a prenuptial agreement in Connecticut?
1) The written prenuptial agreement sets forth the financial expectations of each spouse thereby reducing or eliminating one the biggest sources of stress in a marriage – issues relating to finances.
2) Your soon to be spouse has significant debt. The prenup can protect the debt-free spouse from responsibility of the other spouse’s premarital debt.
3) Estate planning purposes. If you have children from another marriage you may want to ensure that the children, rather than your spouse, are awarded certain assets. If you are expecting a sizeable inheritance you may wish to insulate the inheritance from any claim by your spouse as part of a divorce.
4) You have substantial premarital assets that you wish to keep separate from your spouse.
5) You are self employed, own a business with partners or own joint assets with individuals other than your soon to be spouse.
6) You want to protect your retirement plans such as IRA’s, 401k’s and pensions.
7) Divorce litigation is uncertain. You can never be sure how a judge will decide issues concerning alimony, property distribution and other financial considerations. A prenup allows the parties to dictate the terms and conditions of these important issues rather allowing a judge to decide.
8) Divorce litigation is expensive. Sure prenups cost money; but only a fraction of the money a fully contested divorce will cost. It may be financially prudent to pay the upfront cost of a prenup to minimize legal expenses upon divorce.
Please contact me to discuss a prenuptial agreement in Connecticut.
I just recently read a very practical and useful article regarding finances and divorce. The article sets forth 10 steps to follow to get the most out of your financial settlement.
In particular, I agree with the notion that pensions, 401(k)’s and IRA’s often need to be valued to determine whether it is better to divide the account or substitute an asset instead.
I also agree that there are very few cases in which a judge will award permanent alimony. Most judges expect dependent spouses to help themselves by making efforts at securing employment and living within practical means.
Read the article here: http://moneywatch.bnet.com/economic-news/blog/make-money/10-steps-to-avoid-losing-your-shirt-in-a-divorce/945/
What types of cases do Probate Courts in Connecticut decide?
In general terms, there are three categories of cases:
1. Cases involving Estates. When someone passes away, the local Probate Court oversees the administration of the estate. The Court will appoint an executor. Beneficiaries will be identified so that property may be distributed pursuant to the decedent’s will. As part of the administration process, the Court also requires creditors to be notified and debts determined. If a decedent dies without a will (intestate), the court may appoint an administrator who will function as an executor would if the decedent had died with a will. The Probate Court also hears will contests and issues involving certain trusts.
2. Cases to protect adults. Unfortunately, there are times where once well functioning adults are no longer capable of managing their financial or personal affairs. In such an instance, the Probate Court has the authority to appoint a conservator of the estate, a conservator of the person or both to protect the interests of the adult. The Probate Court may also committ adults suffering from mental illness or addiction to residential facilities for appropriate treatment.
3. Cases involving the welfare of children. The Probate Court has the authority to remove an unfit parent as the guardian of their child. In cases involving extreme neglect or abuse the Court also may terminate parental rights. If parental rights have been terminated, the Probate Court may grant an adoption.
Stamford and Fairfield Probate Attorney
I represent clients in Connecticut Probate Court proceedings though out Fairfield County including Easton, Fairfield, Monroe, Trumbull, Stratford, Bridgeport, Westport, Weston, New Canaan, Wilton, Norwalk, Darien, Stamford and Greenwich.
Please email me or call me in Stamford at (203) 356-1475 or in Fairfield at (203) 259-5251 for a consultation concerning Probate Court issues in Connecticut.