While most Connecticut divorces are filed on a no-fault basis, there are still factors that can effect divorce. Here is an overview of these factors of divorce. In addition, I explain one factor in divorce, the irretrievable breakdown of the marriage, in depth.
Factors that Effect Divorce
As stated in the previous chapter, Connecticut law does not require “fault” in order for two parties to enter a divorce. You or your spouse don’t necessarily have to do something wrong to cause the marriage to end. It is important to keep in mind, though, that divorce can be filed due to a specific event that occurred in which one spouse violated their marital vows. If you feel that your spouse caused the breakdown of your marriage and you want to use this as a factor in your divorce, it is important to keep in mind that it will be up to YOU to prove in court that your spouse’s actions led to your divorce. Some pros of presenting a factor that led to your divorce include the following:
If your spouse has issues such as a violent temper or mental illness, it might affect how custody and/or finances are divided in your divorce.
Financial damages caused by your spouse could impact spousal support.
Financial damages caused by your spouse could impact your joint asset or debt division.
It is important to also consider the cons of taking this approach. These cons include:
Time: Proving that your spouse is the cause of the breakdown of your marriage, can make the divorce process longer. It will take time and money to gather evidence, present your case, and then determine how the finding will impact your case. This process occurs a lot and when there is a legitimate reason for the breakdown of the marriage and you will want to consult with your attorney to determine how it will affect the outcome of your dissolution.
Open court: Keep in mind that the proceedings for your divorce case will be open to the public. Aside from your financial affidavits (which are sealed), your court file is available to the public. Court hearings are also public. You might not want to reveal the inner workings of your marriage to the public, or your family, especially if you are trying to prove sensitive matters, such as a cheating spouse or substance abuse issues. . Consider the impact that the open proceedings can have on your children, employment, or other family members.
Burden of proof: Even if you know that your spouse is responsible for the breakdown of your marriage, proving this in court can be difficult. You will have to gather evidence as proof, which is not always easy or possible, especially if the event that is leading to your divorce happened years ago. The better your records, the easier it is to prove the faults of your spouse. You should make your attorney aware of any documentation you have collected.
Impact: You should speak with an attorney to determine if the cause of the breakdown will impact the outcome of the dissolution.
Factors in Divorce
There are several factors under Connecticut Law that are known reasons for the breakdown of a marriage:
The marriage has broken down irretrievably (no fault claimed);
The parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled.
Willful desertion for one year with total neglect of duty.
Seven years’ absence, during all of which period the absent party has not been heard from.
Sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year.
Legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint. CONN. GEN. STAT. § 46b-40(c) (2011).
Let’s look at each of these factors individually.
Irretrievable Breakdown Of Marriage
I covered this factor of divorce in the last post. While the irretrievable breakdown of a marriage means that no one is at fault, it is still something that can lead to divorce, which is why it is listed here. Connecticut is a no-fault state and this is the most common way to file for divorce. Most if not all of divorce filings in Connecticut will claim an irretrievable breakdown of the marriage. If you are part of a marriage that just isn’t working anymore, but you can’t pinpoint a specific reason as to why the marriage is breaking down, you might decide that divorce is the right option for you. If this is the case, you should file for divorce on the grounds of an irretrievable breakdown (or “no-fault” divorce). It means that the marriage is broken beyond repair. There may have been a cause to the breakdown, but it is your decision if you want to bring the cause into the dissolution process. Speak with your attorney to determine this. If you are experiencing one or more of the following issues, you should consider filing a no-fault divorce:
You and your spouse are unhappy and have been so for a significant period of time.
You and your spouse have tried to repair your marriage (ex. family therapy, couples therapy, spending time together, etc.) but nothing that you have tried has helped.
You and your spouse were legally separated in an effort to repair your marriage, but it did not work.
You and your spouse are no longer invested in making your marriage work.
The good thing about divorce based on the breakdown of the marriage is that you don’t have to prove that you or your spouse has done anything to lead to the failure of your marriage, and likewise, your spouse doesn’t have to prove that you are responsible for the end of the marriage. Even if you or your spouse did things wrong in your marriage, it won’t effect the case if you decide not to bring it up in the dissolution process. Regardless if you want to pursue the reasoning with court, your attorney should still be aware of all of the details of your breakdown. Let the attorney advise you specifically as to what information should be presented to the court.
Divorce can be amicable. If the parties are able to reach an agreement, the attorneys will draw up a separation agreement that outlines all of the parties’ assets, debts, and issues. You and your spouse will present the court with this separation agreement and any other supporting documentation showing how you have agreed to split your debt, assets, child custody, child support, spousal support, real property etc. Negotiations for these details can be reached outside of court with the help of lawyers, in mediation, in court, or a combination of them all.
Once the paperwork is received by the court, the waiting period for divorce will begin. Pursuant to law, there is a 90 day waiting period. If you are in agreement with your spouse on all issues, at the end of the 90 day period you can enter into a dissolution agreement. If you cannot agree on how to split your assets and child custody, it will take longer. When the waiting period is over, the parties begin to use the resources of the court to try to reach an agreement. The court will look at the factors that could have led to the dissolution of your marriage, such as assets, debts, affairs, separation, distrust, conflict of personality, conflict of interests, as well as fault factors. This information will assist third parties and the attorneys in reaching a fair and equitable resolution in your case. Cases can last up to a year or more, depending on how many issues are not in agreement and if the parties need a trial to settle outstanding issues.
One thing that could lead to the irretrievable breakdown of a marriage is separation for a considerable period of time. If you recall, a divorce based on the irretrievable breakdown of a marriage can occur if, “the parties have lived apart by reason of incompatibility for a continuous period prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled…” Conn. Gen. Stat. § 46b-40(c)(2008). If you and your spouse have been separated, you might want to start thinking about filing for divorce. This will allow you to file for a no-fault divorce, as you will fulfill the requirements for a divorce based on the irretrievable breakdown of the marriage, or, if you want to file on some other grounds, you may do so.
The fact that you and your spouse have been separated for a significant period of time will show the court that you have tried to work out your problems before rushing into divorce, but that nothing can be done to save your relationship. There is a common misconception that parties have to be separated prior to filing for divorce. This is not true. There are specific steps to filing for divorce if you and you spouse have been separated and do not have contact with each other. You can still file for divorce if you can’t get in contact with your spouse.
An attorney can assist you in the proper steps to filing and having it accepted by the court. If you do not know where your spouse resides, you should inform your attorney of your spouse’s last known address, if she/he has ever been in the military, where she/he works, or other details that could narrow down the location where they reside currently. The court needs proof that you attempted to reach out to your spouse to notify them of the pending dissolution. Your attorney can assist with meeting the court requirements for service in such a case.
One common reason why couples get divorced is because one or both parties were unfaithful over the course of their marriage. A person can file a no-fault divorce even when there has been adultery. The cause of the breakdown of the marriage is an element when considering the division of property/ alimony, etc. This would be considered during the negotiation and settling of the case. The habits of a cheating spouse will also be brought out at time of final trial. If you think that your spouse has committed adultery, you will have to prove his or her infidelity in court if you would like to use it as a factor in your divorce. Adultery is defined as voluntary sexual intercourse with someone other than a person’s spouse. However, it is important to keep in mind that some states recognize other acts as forms of adultery. For example, sexual acts that do not end in sexual intercourse can be considered adultery. If you think that your spouse has committed adultery, even if you are not sure if he or she actually had sexual intercourse with someone else, you should consult a divorce attorney to determine if you have a case. You can receive compensation in the form of alimony or by being able to keep some of your assets in the divorce. The choices of your spouse can also affect their ability to care for your minor children.
Another thing to consider is if the new significant other should be around your minor children or not. Remember that accusations will not hold up in court without evidence. Accusations must be creditable. Eyewitness accounts, videos, photos, confession, or other direct proof are the best ways to prove that your spouse committed adultery. If you do not have direct proof, you can build a case on indirect proof or circumstantial evidence. Indirect proof can include love letters, travel records, hotel receipts, etc. If you can prove that your spouse had the means and the desire to commit adultery through indirect proof, it might be enough to convince a judge that adultery did indeed take place.
A fraudulent contract can lead to either divorce or an annulment in Connecticut. This is because fraudulent contract implies that the marriage was based on lies or deceit, in which case an annulment might be filed for. If you want to file for an annulment, you should contact a Connecticut family lawyer.
“There must be a deception in respect to some fact whose existence or nonexistence may affect in some certain way the very essence of the marriage relation, resulting in a lawful marriage which practically operates as a fraud upon the deceived spouse; and the existence or nonexistence of the fact thus concealed or misrepresented must operate, as between parties to the marriage, to prevent some essential purpose of marriage and work a practical destruction of that relation.” Gould v. Gould, 78 Conn. 242, 261 (1905). “In Connecticut, by statute . . . fraudulent contract is a ground for divorce. This ground probably embraces some situations which, at least in jurisdictions not having such a ground of divorce, could also support an action for annulment.” Perlstein v. Perlstein, 152 Conn. 152, 161, 204 A.2d 909 (1964). “All the grounds of divorce specified, except fraudulent contract, are of such a nature that they can come into existence only after the marriage. While fraudulent conduct of a certain kind will render a marriage voidable, such fraud differs from that which vitiates ordinary contracts in that the party defrauded may not at his own election avoid the marriage, but it is held to be voidable only by a decree of the court.” Davis v. Davis, 119 Conn. 194, 196, 175 A. 574 (1934).
If this applies to you, you may qualify for an annulment and may want to pursue an annulment. Remember to receive an annulment you must be able to prove to the Court there was some type of fraud, mistake, or misconception. For more information on divorce, you can purchase my full ebook, Lady Divorce’s Guide to Connecticut Divorce, on Amazon.com.
If your spouse has intentionally left you, you can use willful desertion as a part of your argument for getting a divorce. Willful desertion is defined by the state of Connecticut as, “the willful absenting of one party to the marriage contract from the society of the other, coupled with the intention on the part of the absenting party to live apart, in spite of the wish of the other, and not to return to cohabitation.” Casale v. Casale, 138 Conn. 490, 492, 86 A.2d 568 (1952). In order to prove that your spouse is guilty of willful desertion, you will have to prove all of the following elements: “(1) cessation from cohabitation; (2) an intention on the part of the absenting party not to resume it; (3) the absence of the other party’s consent; and (4) absence of justification.” Gannon v. Gannon, 130 Conn. 449, 450, 35 A.2d 204 (1943). Just as in an in a case of adultery, you will have to prove willful desertion in court. If your spouse is absent from these proceedings, he or she will not be able to defend him or herself against the claims that you are making. It is in your best interest to contact a divorce lawyer in order to see if you have a legitimate case. If you do have a case, a lawyer can help you build evidence.
Habitual intemperance is defined as an alcohol or drug addiction that prevents a person from carrying out his or her normal life and business for a large portion if not all of the time. Habitual intemperance can damage a marriage by putting stress and burdens on the innocent spouse. It can lead to emotional, physical, or financial strain for the innocent spouse. In many cases, a spouse will be witness to the drug or alcohol abuse of his or her spouse, especially if the spouse abusing drugs or alcohol has a serious problem.Habitual intemperance can lead to a spouse’s inability to participate in the work force and fulfill his or her spousal duties. If this is the case, the drug or alcohol problem will be taken into consideration when dividing property and custody in divorce. If your spouse has an alcohol or drug problem that prevents him or her from sustaining a healthy marriage, you might have grounds for divorce. If this is the case of your spouse, you will want to make the Court aware of such habits because it could impact your children and their safety. In order to prove habitual intemperance, you must provide evidence and testimony to support your argument. Some common examples of evidence given in habitual intemperance divorce cases are:
Proof of money spent on drugs or alcohol.
Reckless behavior due to drugs and alcohol, such as DUIs or other drug-related charges.
Your spouse’s inability to find a job or keep a job due to his or her condition.
Statements from family and friends who have seen how your spouse’s issues with drugs have affected your marriage can also be useful testimony in court. Once you prove that your spouse has a drug or alcohol problem, you should go one step farther and prove that your spouse doesn’t intend to get help for this issue, or that treatment methods that your spouse tried in the past have not worked. To prove habitual intemperance, you have to prove that your spouse’s issues with drugs or alcohol have been a problem for a year or longer and that they are not getting better.
Physical and/or Mental Abuse
In many states, cruelty is defined as conduct or actions taken by your spouse that harm you physically or mentally. If you want to use cruelty in your divorce proceedings as a way to get more property or custody of your children, you have to prove that the cruelty inflicted upon you by your spouse is sustained and severe. This means that you have to prove that the cruelty has lasted for a long period of time and that it has caused you serious damage. You have to prove that the cruelty and abuse are too severe for you to continue your marriage. Many times parties file for a dissolution after a domestic altercation which leads to an arrest or a restraining order. If you think you are a victim of intolerable cruelty, consider the following actions. If you are a victim of one or more of these examples, you will probably have a case for intolerable cruelty. Cruelty includes:
Repeated displays of rage.
Knowingly giving a spouse a sexually transmitted disease, while the spouse is not aware of the disease.
Wrongful accusations (i.e. if your spouse accuses you of adultery).
Making a relationship carried on with another person public.
Giving no explanation for staying away from home for long periods of time.
Much like adultery, intolerable cruelty can be a deciding factor in questions of asset and custody division. If your spouse has abused you, a judge might believe that he or she could harm your children as well, and you can be awarded custody of your children as a result. In order to prove intolerable cruelty, consider using the following evidence:
Doctor’s testimony of physical injuries resulting from attacks.
Photographs of injuries resulting from attacks.
Eyewitness accounts of attacks.
Police reports of fights.
Testimony of family and friends.
Fear for your life or the life of your child.
While this is not a comprehensive list, it is a good place to start. If you can prove intolerable cruelty in court, it could have an impact on child custody. If you are not ready to file for divorce but want to protect yourself and your children from the cruelty of your spouse, you can file for a restraining order. You do not have to be divorced or in the process of getting a divorce in order to file for a restraining order. A restraining order is a separate action with the court.
Imprisonment for Life
Your marriage vows include the phrase, “for better or for worse,” but no one signs up for a marriage with someone who will spend the entire course of your marriage in prison. For this reason, if your spouse has been arrested and has served time in jail or is currently serving time in jail, you may want to inform the court of this. Getting a divorce based on the life imprisonment of your spouse is fairly easy. This is because there is documentation to prove this. All that you have to do is present a judge with your spouse’s case and show the prison sentence that was determined as punishment.
If your spouse has become mentally unstable over the course of your marriage, you can use this as a factor in your dissolution.. If your spouse has become mentally incompetent, insane, or ill, many states consider these issues a factor in divorce. In the state of Connecticut, insanity (or confinement in a hospital due to mental illness) can impact a divorce. You can prove your spouse’s insanity or mental illness through:
Proof of institutional care.
Testimony of doctors.
Testimony of family and friends.
You can also petition to the court to test your spouse for mental illness if it is affecting your marriage. If your spouse is mentally ill, this factor could affect child custody in your divorce. Next week, I will move on to the topic of serving divorce papers. However, if you have questions about factors in divorce, or how these factors will impact your particular situation, please feel free to contact me for a free consultation.
No Fault Divorce in Connecticut
Connecticut law does not require “fault” be found in order to order a divorce of the parties. This means that the defendant must not have “done something” to cause the end of the marriage. Of course, there are reasons for ordering a divorce which may be one person’s fault, but those will be addressed in a future post. “The determination of whether a breakdown of a marriage is irretrievable is a question of fact to be determined by the trial court.” Eversman v. Eversman, 4 Conn. App. 611, 614, 496 A.2d 210 (1985). This means it is a requirement of the plaintiff to put on a prima facie case in your divorce proceeding. This is typically done by your attorney who will ask you a series of questions on direct examination which result in the judge being able to determine that the marriage has broken down. For no fault cases, “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred: (1) the marriage has broken down irretrievably; (2) the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled . . . .” Conn. Gen. Stat. § 46b-40(c)(2008). Further: “Incompatibility of personalities is not and has never been a ground for divorce in Connecticut. Under our law, married persons are expected to accept the ordinary vicissitudes of marriage caused by unwise mating, unhappy situations, unruly tempers and common quarrels or marital wranglings.” Nowak v. Nowak, 23 Conn. Sup. 495, 497, 185 A.2d 83 (1962). “The absence of objective guidelines does not mean an abdication of judicial function, nor does it signal, as the defendant argues, that a court determining whether a marriage has in fact irretrievably broken down is acting purely ministerially or is granting a divorce ‘upon demand.’ It does, however, sustain the trial court’s conclusion that the defendant’s decision to rearrange his business ventures after the initiation of divorce proceedings does not necessarily repair the rupture in the marital relationship that had previously occurred.” Joy v. Joy, 178 Conn. 254, 255-256, 423 A.2d 895 (1979). Irretrievable breakdown: “In 1973, by No. 73-373 of the 1973 Public Acts (P.A. 73-373), the legislature effected an historic revision of our marital dissolution statutes. That legislation introduced certain new concepts to our family law, such as the irretrievable breakdown of the marriage as a ground for dissolution.” Doe v. Doe, 244 Conn. 403, 433, 710 A.2d 1297 (1998).
Fault for Divorce in Connecticut
Of course, just because there are reasons for a “no fault” divorce does not mean that you cannot claim fault in seeking a divorce in Connecticut. Your lawyer will go over the strategy for this and combined you will eventually make a determination which allegations to put in the complaint. One of the main reasons why an attorney will counsel you to NOT put in a fault reason is that the burden is on the Plaintiff to prove the case in court, so if you allege that there has been a fault reasons, like adultery, you must prove it to the judge. Because that must be done in open court, it may not be worth it to hear all the sordid details at your divorce hearing. There are other reasons for fault divorce. The paw provide for fault grounds: “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred. . .(3) adultery; (4) fraudulent contract; (5) wilful desertion for one year with total neglect of duty; (6) seven years’ absence, during all of which period the absent party has not been heard from; (7) habitual intemperance; (8) intolerable cruelty; (9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; (10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.” Conn. Gen. Stat.§46b-40(c) (2008).
If you suspect that your spouse has been cheating on your, you can take steps to protect yourself. Download our Dealing With a Cheating Spouse in Connecticut and get tips on what to do next.