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Child-related and Financial-related Divorce Concerns

Understanding Divorce in Connecticut

There are two main categories of issues requiring consideration during the typical divorce process: (1) Child-related issues and (2) Financial-related issues.  At the Law Offices of Eric R. Posmantier LLC, we strive to treat these issues individually and with a decidedly “kids first” mentality.

Child-Related Divorce Concerns

Balance Scale IconCustody: Pursuant to Connecticut General Statute § 46b-56, at any time after the commencement of a divorce process, the court can issue orders (“temporary” or “permanent”) regarding the legal custody and physical custody of a child.  The law requires the court to consider the “best interests of the child” in fashioning all such custody orders. 

What is Legal Custody? This is the right to make major decisions on behalf of the child. “Legal custody” is term given to the party (or parties) making the important decisions for a child, such as those impacting education, religious upbringing, and of course mental and physical health treatment.

Normally, joint legal custody is awarded to the parties. Connecticut General Statute § 46b-56a defines “joint custody” as follows:

an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.

In extreme circumstances, usually where mental health or serious substance abuse is a concern, or parents are completely unable to communicate with one another (even with help), the court might award sole legal custody to one parent or the other. 

Flag IconWhat is Physical Custody? This term essentially refers to the parenting schedule. A determination of each parent’s “parenting time” with the children, and the children’s school enrollment, are often most important when considering physical custody.

Creating a workable parenting plan can often be the most emotional and difficult part of a divorce process. Attorney Posmantier and Attorney Stokes work to help resolve parenting disputes as quickly and painlessly as possible.

In our firm, we insist on not referring to parenting time as “visitation,” even though that is the term referenced in the applicable statute. Generally, a parent is not, and should not be deemed a “visitor” in a child’s life. The specific words used can matter, especially to a young child. “It’s time for Daddy’s (or Mommy’s) visitation” will land very differently on a child than “It’s time for Daddy’s or Mommy’s parenting time.”

Pursuant to Connecticut General Statute § 46b-56a, a proper parenting plan may include the following:

  • a schedule of the physical residence of the child during the year;
  • provisions allocating decision-making authority to one or both parents regarding the child’s health, education and religious upbringing;
  • provisions for the resolution of future disputes between the parents, including, where appropriate, the involvement of a mental health professional or other parties to assist the parents in reaching a developmentally appropriate resolution to such disputes;
  • provisions for dealing with the parents’ failure to honor their responsibilities under the plan;
  • provisions for dealing with the child’s changing needs as the child grows and matures; and
  • provisions for minimizing the child’s exposure to harmful parental conflict, encouraging the parents in appropriate circumstances to meet their responsibilities through agreements, and protecting the best interests of the child.

What do the Connecticut courts consider when addressing parenting disputes?

The court must consider the “best interests of the child” in making and modifying custody orders.  Pursuant to Connecticut General Statute § 46b-56, in determining the best interests of the child, the court may consider, but shall not be limited to, one or more of the following factors:

  • the temperament and developmental needs of the child;
  • the capacity and the disposition of the parents to understand and meet the needs of the child;
  • any relevant and material information obtained from the child, including the informed preferences of the child;
  • the wishes of the child’s parents as to custody;
  • the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child;
  • the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;
  • any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
  • the ability of each parent to be actively involved in the life of the child;
  • the child’s adjustment to his or her home, school and community environments;
  • the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household;
  • the stability of the child’s existing or proposed residences, or both;
  • the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
  • the child’s cultural background;
  • the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
  • whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and
  • whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.

Financial-Related Divorce Concerns

There are two financial-related sub-topics that should be considered in the typical divorce: (1) the division of assets and liabilities, and (2) future financial support (spousal support (“alimony”), child support and/or educational support). 

Division of Assets and Liabilities

Connecticut is an “equitable distribution” state. This means that the court can redistribute all assets and liabilities that exist at time of divorce, regardless of when or how the same were acquired. 

While often an equal division of the marital estate is appropriate, there is no law or statute that requires a court to equally divide the same. There are certain circumstances that may tip the scales off of an equal division.  For example, if a party brought significant assets to the marriage or received an inheritance and/or large gifts from his or her respective family during the marriage, an argument may be made that the party should retain a greater portion or potentially all of those particular assets.  Normally, the closer to the end of the marriage the gifts and inheritance are received, the bigger the disproportionality of the division.

Absent agreement of the parties, the law leaves the division of this “marital pot” in the discretion of the judge based on the equitable arguments raised by parties and counsel.

An “equitable” division is one that’s appropriate in the eyes of the parties (in the event of an agreement) or judge (in the event of a trial). “Fair” is not the same as “equal”. Note also that “fair” can mean very different things to different parties and judges.

If the parties do not reach an agreement on their own, the court determines how the property is to be divided after considering evidence from each party, including but not limited to:

  • Length of the marriage;
  • Causes for the dissolution of the marriage;
  • Age;
  • Health;
  • Occupation;
  • Amount and sources of income;
  • Employability and earning capacity;
  • Vocational skills and education;
  • Liabilities and needs of each party;
  • Each party’s future opportunities to acquire additional assets and income; and
  • Each party’s contribution to the acquisition, preservation or appreciation of the marital estate.

(See Connecticut General Statutes sec. 46b-81.) In many ways, this simply boils down to: The judge can, within reason, do whatever he or she feels is appropriate! That’s a lot of power to hand over to a stranger, which is why we advocate strongly for alternative dispute resolution approaches, such as using mediation or collaborative law.

What are the elements of support that may be addressed as part of a Connecticut divorce?

There are three main categories of support that a court may order in a dissolution of marriage proceeding: (1) alimony (spousal support); (2) child support; and (3) educational (college) support. 

Alimony (Spousal Support)

Alimony is the money one spouse pays to support the other spouse. Connecticut courts grant alimony on a case-by-case basis. The court must weigh several factors to determine whether spousal support is appropriate.  Those factors include the following:

  • Length of the marriage;
  • Causes for the dissolution of the marriage;
  • Age;
  • Health;
  • Occupation;
  • Amount and sources of income;
  • Employability and earning capacity;
  • Vocational skills and education;
  • Estate and needs of each party;
  • The division of assets and liabilities; and
  • In the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent’s securing employment.

(See Connecticut General Statutes sec. 46b-82.)

Child Support

Both parents have a responsibility to provide financial support for their children.  (See Connecticut General Statutes sec. 46b-84.)  The “calculation of child support is based on the income shares model and the parties’ combined net income rather than on the actual costs associated with raising a child.”  Dowling v. Szymczak, 309 Conn. 390, 408 (2013).  In order to determine the minimum presumptive amount of child support, Connecticut law requires the use of certain Child Support Guidelines. These Guidelines are sometimes only the start of the analysis to be applied to any given child support situation. There are a number of deviation criteria that a judge can consider, and for a parent unemployed or underemployed, the court can consider that parent’s earning capacity.  Attorney Posmantier and Attorney Stokes can advise on how best to use these Guidelines to support your position.

Where the parties’ combined net weekly income exceeds $4,000, the calculation of child support can become a bit more complicated.  In these cases, the court calculates both the presumptive minimum amount and maximum percentage allowed by the Guidelines. The judge then has the discretion to award a child support amount between those figures.

Notably, the Law Offices of Eric R. Posmantier, LLC recently successfully argued a case in front of the Appellate Court of Connecticut, wherein the Father appealed a decision awarding the Mother the maximum percentage under the Guidelines. That appellate decision can be viewed here

Educational Support

Connecticut General Statute § 46b-56c governs the determination of educational support orders.  Under the statute, a court may order a parent (or parents) to “provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction.”  The child in question must be under 23 years old and the educational support order must not extend past the child turning 23. 

Educational support orders may address the following educational expenses:

  • Room and board;
  • Tuition, due and fees;
  • Registration and application costs;
  • Books; and
  • Medical insurance.

However, the court may only order the parties to cover educational expenses up to the amount charged by the University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates.  The parties may waive this limitation by agreement.

Alternatively, the parties may waive or reserve the court’s jurisdiction over educational support orders by agreement.  Reserving jurisdiction means that either party could petition the court to make an educational support order at some later date after the divorce is finalized.  (Parties with young children may consider reserving jurisdiction and asking the court to figure out educational support later when their children are older since their financial situations may change by then.)  Waiving jurisdiction means that the parties agree that they do not want the court to enter an educational support order at the time of divorce or at any future time.  Once the parties waive jurisdiction, no one can return to the court to ask for an educational support order.  (Parties may want to consider this when they do not have the financial means to assist their children with college expenses, or if they have sufficient funds in a college savings account for the child to utilize.)

Absent an agreement of the parents, in order to enter an educational support order, the court must find “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 were intact.”

In determining whether to enter such an order, the court shall consider the following factors:

  • the parents’ income, assets and other obligations, including obligations to other dependents;
  • the child’s need for support to attend an institution of higher education or private occupational school considering the child’s assets and the child’s ability to earn income;
  • the availability of financial aid from other sources, including grants and loans;
  • the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available;
  • the child’s preparation for, aptitude for and commitment to higher education; and
  • evidence, if any, of the institution of higher education or private occupational school the child would attend.

The statute also sets out rules, which the child must follow in order to receive payments from an educational support order.  They are as follows:

  • enroll in an accredited institution of higher education or private occupational school, as defined in section 10a-22a;
  • actively pursue a course of study commensurate with the child’s vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment;
  • maintain good academic standing in accordance with the rules of the institution or school; and
  • make available all academic records to both parents during the term of the order. The order shall be suspended after any academic period during which the child fails to comply with these conditions.

With more than twenty-four years of experience, Attorney Posmantier, along with his associate and staff, are available to assist with all of the above issues. Do not hesitate to reach out to inquire about an initial consultation.