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January 20, 2017

“Do I have to go to Trial?” It is a question that family law attorneys who practice in Westport, Greenwich, Darien, New Canaan and Stamford are often asked by their clients. The answer is, “No”! When the parties to a divorce action are able to reach a settlement of all custody and financial issues, a formal Separation Agreement is drafted. The case is then scheduled for an Uncontested Divorce Hearing.

An Uncontested Divorce Hearing takes place at the Courthouse in the same type of courtroom in which a Trial would occur. The courtroom is open to the public, which means that depending on how busy the day is, there will likely be other people (litigants, attorneys) sitting in the Courtroom as they wait for their own matter to be heard. At the beginning of the Uncontested Divorce Hearing, the Plaintiff’s attorney will ask the Plaintiff to provide the parties’ background information to the Judge, such as the date of marriage, location of marriage, maiden name, length of residency in Connecticut, and the names and ages of any children of the marriage. These questions are asked in order to make sure that the Judge has appropriate jurisdiction to grant a divorce.

Next, the Judge will review the Separation Agreement. This is typically done by having the Plaintiff’s attorney review the salient points of the Agreement with the Plaintiff. The Agreement is reviewed before the Judge for a few reasons:

First, so that the Judge can confirm that the parties understand the terms of the Agreement and their obligations pursuant to the Agreement.

Second, so the Judge can confirm that the Separation Agreement addresses all of the issues that need to be resolved due to the circumstances of the case. A typical Separation Agreement will include terms regarding the division of the parties’ property (including real estate, business interests, retirement accounts, bank and brokerage accounts and stock options, for example), liabilities, alimony, health insurance, life insurance and tax issues. If there are minor children of the marriage, the Agreement must include a parenting plan which outlines custody and parenting time, as well as child support, private school, post-secondary educational expenses and extracurricular expenses.

Third, before granting the parties’ request for a divorce, the Judge must verify that the terms of the Separation Agreement are fair and equitable. The Judge will also review the parties’ Financial Affidavits to make that determination. The Judge will pay particular attention to how the income of the parties is being allocated in relation to the expenses of the parties and the overall division of assets and liabilities. The Judge may ask the attorneys and/or the parties questions about the terms of the Agreement to have a better understanding as to why the parties agreed to certain provisions.

Finally, the Judge must find that the custody arrangement is in the best interests of the minor children. Accordingly, the Judge will want to review the Parenting Plan to ensure it contains provisions for custody, decision making, a parenting access schedule, and a vacation/holiday access schedule.

In addition to the Separation Agreement, Parenting Plan and Financial Affidavits, there are other documents that must be prepared and submitted at the Uncontested Divorce Hearing.

Child Support Guidelines Worksheet. In the state of Connecticut, the amount of presumptive child support to be paid from one party to the other is determined with the assistance of guidelines promulgated by the state and prepared by the parties or their attorneys.  The parties may agree that they are going to deviate from the guidelines, however, the Judge has the ultimate say as to whether the deviation from the child support guideline presumptive amount is appropriate and acceptable.

Affidavit Concerning Children. This document provides background information about the parties’ children. It tells the Court who has custody of the children as well as where the children have resided in the past five years.

Advisement of Rights Re: Income Withholding. In the state of Connecticut, the spouse receiving alimony or child support is entitled to garnish the payor’s wages in order to receive the payments regularly. While this is very rarely done in high income cases, all parties are still required to submit this form to the Judge, which confirms to the Judge that each party is aware that such income withholding is available to them.

At Broder Orland Murray & DeMattie LLC, we take pride in assisting our clients through the negotiation and crafting of thoughtful and comprehensive Separation Agreements. We are committed to resolving each case efficiently and effectively, which often results in an Uncontested Divorce.

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