If you have any questions about divorce in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.
The Marital Residence
In the majority of divorces, parties are living in a home that they jointly own at the time of service. This property, referred to as the “marital residence,” often becomes an asset subject to equitable division by the court at some later date. Again, although there are often variations with respect to which spouse is listed on the title and/or any note or mortgage associated with the property, the trial court is empowered to either force a sale of the property, or assign that property to one party or the other as part of the dissolution action, where appropriate.
Pursuant to the Automatic Orders, neither party may deny the other use of the parties’ primary residence without a court order. Nevertheless, due to the likelihood of conflict between the parties (and perhaps in the presence of minor children), the spouses have the option of filing and proceeding with a motion for exclusive possession of the marital home. This procedural mechanism allows one party to be heard as to why it would be “just and equitable” to grant only one party interim use of the marital home (to the exclusion of the other spouse) while the divorce is pending, without making a determination as to which party will ultimately receive title to that property upon final judgment.
A myriad of factors may be considered by the court in awarding temporary (also referred to as “Pendente Lite,” Latin for “while the action is pending”) exclusive possession of the marital home, but perhaps the most significant factor is recent or present violence (or the threat thereof) in the marital home, especially if the same has resulted in police intervention or involvement by the Department of Children and Families. In circumstances of physical abuse of a spouse or a child, there are three options to be considered and employed (in tandem or individually) as circumstances allow: 1) criminal proceedings and a criminal protective order; 2) a civil application for relief from abuse; and 3) the temporary, exclusive possession of the marital home as discussed here. Each of these options comes with its own benefits and procedural mechanisms. In the case of an emergency or serious, imminent danger to a person or child, law enforcement is the best option.
If you have any questions about divorce and marital property in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.
Inheritance, Gifts & Trusts
In a divorce action, the Superior Court has the authority to allocate inheritances and gifts that have already been received by either party, regardless of the source. In determining whether a party should retain his or her inheritance or gift, judges utilize a fairness test, and look to numerous factors, including when the gift or inheritance was received, its past and current value, how it was used (if at all) during the marriage, whether it was held by one or both of the parties, and the reason the inheritance or gift was received.
In a dissolution of marriage action, “property” refers to a presently existing, enforceable right to receive income from the other party. Thus, a mere expectation of a future inheritance does not qualify as “property” and is generally not considered part of the marital estate. In the case of Rubin v. Rubin , where the husband’s status as a possible residuary beneficiary under his mother’s revocable trust and will was deemed a “mere expectancy,” the court determined that his possible future inheritance should not have been the subject of a court order as the husband’s “hope” to receive money in the future was not divisible or assignable by a court. Accordingly, what one spouse may inherit under a will or as a contingent beneficiary of a trust is considered speculative under Connecticut law and, therefore, viewed with skepticism by the court when a party attempts to make the future inheritance of one party an issue in the financial resolution of a dissolution of marriage action.
However, there are ways to combat the unpredictability of future inheritance during the discovery period of divorce cases in Connecticut. Although the non-inheriting spouse will not be able to receive actual payment from the inheriting spouse’s family reserves, the non-inheriting spouse can conduct discovery to discern the inheriting party’s “opportunity for future acquisition of capital assets and income”  which makes the future inheritance both relevant and discoverable. From there, factual investigation may help to reduce the speculation and give a reasonable range of predictability of what the other spouse may eventually acquire. Arguments about balancing the equities can be made to make up some of that disparity by awarding the non-inheriting spouse a higher percentage of actual marital property. For example, during the discovery period, the non-inheriting spouse could subpoena the other spouse’s mother who is living off the income of a family trust to discern what her living expenses are and how the trust is either generating money or being exhausted. Estimating how long the spouse’s mother would live using recent mortuary tables, along with knowing the trust’s financial condition, would help to oppose the speculation of what the inheriting spouse would receive as a living, contingent beneficiary. That kind of discovery activity can prove quite resourceful in arguing to a family judge or mediator that the non-inheriting spouse is deserving of a higher percentage distribution of actual available and divisible martial assets such as net proceeds from the sale of the marital residence, a bank or brokerage account, or an IRA.
Of course, divorcing parties may always enter into voluntary agreements about future inheritances as a way to achieve equity in the division of property. This type of provision often bridges the gap of an otherwise difficult settlement.
If you have any questions about divorce, inheritance, gifts, or trusts in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.
It is well settled that both vested and unvested pension benefits are marital property subject to equitable distribution under Connecticut General Statutes § 46b-81. Once it is established, either through an agreement or court order that a pension will be divided, the valuation and distribution method must be addressed. There are generally two approaches used in Connecticut to divide a pension, the present value method and the present division method of deferred distribution.
Under the present value approach, the parties, or the court, must first determine the present value of the pension benefits at issue. The parties, or, again, the court, will then decide the portion to which the nonemployee spouse is entitled, and award other property to that spouse to offset the value of the pension benefits the employee spouse will retain. It should be noted that although this approach may result in immediately severing the parties’ financial connection, it also puts a considerable amount of risk on the employee spouse. Indeed, if, for example, the employee spouse never receives unvested benefits, the nonemployee spouse will have received at the time of dissolution a greater share of the marital assets.
Under the present division method of deferred distribution, on the other hand, the court or the parties determine at the time of dissolution the percentage share of the benefits each will receive upon maturity, regardless of the overall value of the plan. Typically, the parties will then receive their respective shares as a monthly payment when the pension goes into pay status, e.g., when the employee spouse retires. Unlike the present value approach, the deferred distribution method imposes the risk of forfeiture on both parties in that if the employee spouse never receives the benefits, the nonemployee spouse will forfeit them as well. However, this approach also forces the parties to remain financially tied to one another for what could potentially be a very significant amount of time. Additionally, this approach generally requires the preparation of a Qualified Domestic Relations Order (QDRO) or a Domestic Relations Order (DRO) in order to effectuate the division. This often requires the assistance of an attorney who specializes in the preparation of QDROs/DROs. Moreover, the QDRO/DRO process can take many months to be completed.
If you have any questions about divorce or pension benefits in Connecticut, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.
 204 Conn. 224, 230-31 (1987).
 C.G.S. 46b-81
 Bender v. Bender, 258 Conn. 733 (2001).