FAQ: Divorce Law
Answers To Your Family Law Questions
- Can I force my spouse to leave the marital home?
- How big a factor is fault for the breakdown of the marriage in the distribution of property or the awarding of alimony?
- If I move out, can I be charged with abandonment?
- What is a legal separation?
- Do I need to get a legal separation in order to separate?
- What is a no fault divorce?
- How is child support determined?
- What will happen if one of us wants to relocate with the kids?
- Will I be able to get court-ordered college support for my children?
- Am I entitled to a share of my spouse’s pension and 401(k) plans?
- How long will it take to get a divorce?
- Do we have to go to court if we agree on everything?
Can I force my spouse to leave the marital home?
If the parties are still living together in the marital home when the action commences, neither party can deny the other use of the residence without a court order. This may be true even if one party has temporarily left the home. A party may file a motion for exclusive use of the marital home during the pendency of the action requesting a court hearing to determine who should occupy the home until the divorce is final. Although courts have discretion in awarding exclusive possession of the home, they are reluctant to do so without substantial justification, including violence by one party against the spouse seeking exclusive possession.
How big a factor is fault for the breakdown of the marriage in the distribution of property or the awarding of alimony?
The cause of the breakdown of the marriage will be considered by the court in making its financial awards. If the fault is substantial and contributes to the breakdown of the marriage, the court may compensate the party not at fault by giving that party a greater portion of the marital assets or more alimony than he/she would otherwise be awarded. However, it should be noted that the financial awards/distributions are not to be considered as a reward for the innocent spouse nor are they a punishment for the spouse at fault. The court will try to distribute the assets and available income where appropriate as equitably as possible taking into consideration all of the relevant facts.
If I move out, can I be charged with abandonment?
Connecticut courts recognize that it is often more comfortable for divorcing couples to live apart and do not punish people simply for moving out of the marital residence. The person who moves out is neither abandoning the family nor giving up rights to the home or contents by moving. However, parents and spouses do have obligations of support which must be considered when couples separate. It is possible to financially abandon a spouse or children and that can be alleged as an element of fault in a divorce complaint. Also, in cases where residential custody is at issue, a parent who leaves the home where the children reside may put him or herself at a disadvantage and should consult with a lawyer before making the move.
What is a legal separation?
A legal separation is a separate court action in which the court can enter orders for property division, alimony, custody and support in the same manner as a divorce. The only distinction between legal separation and divorce is that when a judgment of legal separation is entered, the marriage is not dissolved. A legal separation judgment can be converted to a dissolution of the marriage by either party petitioning the court without having to revisit any of the original orders entered at the time of the legal separation. A legal separation can also be undone by both parties filing a declaration of resumption of marital relations.
Do I need to get a legal separation in order to separate?
No. A legal separation in Connecticut is not a normal step in the divorce process. Couples can separate whenever one party chooses to live apart.
What is a no fault divorce?
A “no fault” divorce is one in which the plaintiff does not have to prove fault on the part of the defendant in order for the court to dissolve the marriage. Fault grounds such as intolerable cruelty, habitual drunkenness or adultery were once required to be proven by the party seeking the divorce. With no-fault divorce, that requirement was abolished. The plaintiff must only testify that the marriage has broken down irretrievably with no prospect for reconciliation. Fault grounds may still be claimed, but it is rarely done because of the added burden of proving the fault. In a no-fault divorce, evidence about someone’s fault in causing the breakdown of the marriage can be introduced at a trial and may affect the court’s orders of alimony, division of property and sometimes custody.
How is child support determined?
Every state has child support guidelines which are formulated by a commission and adopted by the legislature every few years. The guidelines include a formula for calculating child support on the basis of the net incomes of both parents and other factors. Judges are required to apply the guidelines except in a very few circumstances.
What will happen if one of us wants to relocate with the kids?
Relocation is one of the toughest issues that come up for parents, children and judges. The Connecticut Supreme Court has ruled in one case that each parent has the burden of proving certain things in order to win in a relocation case. However, that decision does not apply to all cases and the facts of each case affect the outcome. The Connecticut legislature is also likely to address this issue during its next regular session. It is important to get legal advice about this issue before you get divorced, if possible.
Will I be able to get court-ordered college support for my children?
The court has jurisdiction to enter educational support orders requiring a parent to provide support for a child who is over age 18 but under age 23 to attend post secondary school. If the child is under the age of 23 at the time of the divorce or judgment, the court may either: enter an educational support order, reserve its jurisdiction to enter such an order at a future time, or waive its jurisdiction to enter such an order in the future upon agreement of the parents. The court may not enter an educational support order unless it finds that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family had remained intact. If, at the time the divorce proceedings begin, the child is already in college or will be attending college in the immediate future, the court may enter an education support order while the divorce is pending. The cost of educational expenses covered by such an order is capped at the cost for a full time, in state student at the University of Connecticut.
Am I entitled to a share of my spouse’s pension and 401(k) plans?
Retirement benefits are treated as property subject to division by Connecticut courts. One of the leading cases on this issue is Krafick v. Krafick, a 1995 Connecticut Supreme Court decision. Some retirement plans are easier to divide and transfer than others. It is important to understand the specific type of retirement plan and to determine its value before agreeing on a final settlement or going to trial.
How long will it take to get a divorce?
Connecticut has a 90-day waiting period for divorce or legal separation, which waiting period starts approximately two weeks after the papers are served on the defendant. Under a new state law, the court may waive the waiting period, however, if the parties attest, under oath, that they have a written agreement as to all terms of the divorce or legal separation and wish the court to enter a decree of divorce or legal separation prior to the expiration of the waiting period and file a motion seeking the waiver of the time period.
Do we have to go to court if we agree on everything?
Usually, both parties are at the final hearing so that the judge can be sure the parties understand their agreement and have signed it voluntarily. In some cases, such as when one party resides outside the state or country, only one party must go to court for a final hearing. A final hearing in a case which is settled by agreement takes only 10 to 15 minutes. In cases in which, among other factors, there are no children, no pensions, no real property, limited assets, and no restraining orders the parties may file a joint petition for a non-adversarial divorce without having to attend court.