Where to File — New York or Connecticut?

Because Connecticut serves both as a bedroom community and a weekend haven for New Yorkers, New York matrimonial lawyers often find themselves required to make a judgment as to whether a matrimonial action can be brought in Connecticut and if so, which jurisdiction is more favorable to their clients. Connecticut's matrimonial jurisprudence, while similar to New York's, differs both substantively and procedurally at a number of significant points. Unfortunately, the similarities may create something of a trap for the unwary since, by and large, the differences between New York and Connecticut matrimonial law tend to be in the details rather than in the broad strokes. This article discusses a number of the most significant points at which the laws of the two jurisdictions come together or diverge.

Jurisdiction and Grounds

In contrast to New York's 1- or 2-year residency requirement (DRL ' 230), a party may file a complaint for a dissolution of a marriage in Connecticut at any time after either party has established a residence, although no decree of dissolution can issue until at least one of the parties has been a resident for more than 12 months (Connecticut General Statutes [CGS] ' 46b-44). As in New York, “residence” in this context means domicile.

In addition to the traditional fault grounds, Connecticut will also dissolve a marriage on a finding that it has “broken down irretrievably” (CGS ' 46b-40), and the evidence of “irretrievable breakdown” need be nothing more than one party's testimony. For example, in Eversman v. Eversman, 4 Conn. App. 611 (1985), the husband filed a complaint seeking divorce on the basis of irretrievable breakdown of the marriage. He testified that he had had numerous affairs and was at the time of the hearing living with a woman whom he wished to marry. The wife opposed the petition, disagreeing with her husband's assessment of the marriage and insisting that because she still loved him and because they had not spent adequate time in counseling, the marriage could not be said to be “irretrievably broken.” The appellate court affirmed the trial court's grant of divorce, stating that under Connecticut law, both parties to a marriage need not agree that the marriage is beyond saving for the courts to dissolve the marriage on the basis of irretrievable breakdown.

Process in Connecticut is served by state marshals, who are independent contractors, but if the defendant resides out of state, Connecticut now permits extra-territorial service by anyone authorized to serve process in the jurisdiction (CGS ' 46b-57a). Because the formal requirements for getting divorced in Connecticut are significantly less rigorous than in New York, where a waiting period for residency applies and fault must be proved, Connecticut can be an attractive state in which to commence a divorce action when the grounds are weak and one spouse is likely to resist the other's desire to dissolve the marriage.

Automatic Orders

A unique aspect of Connecticut practice — one that New York would do well to adopt — is that upon service of process in a matrimonial case, a series of restraining orders forbidding the transferring, selling, encumbering or concealing of property, the removal of children, the change of insurance arrangements, the incurring of unreasonable debts, and other matters, go into effect, basically freezing the financial and other relationships of the parties until a court has had a chance to act on them. The violation of these orders is punishable as a contempt of court (Practice Book 1998, ' 25-5).

Custody

In Connecticut, there is a statutory presumption that where parents have agreed on joint custody, that joint custody is in the best interests of the child (CGS ' 46b-56a), and theoretically, the courts will grant joint custody over the objections of a party or where parents do not get along. Indeed, they have occasionally done so. See, e.g., Harvey v. Harvey, 1993 Conn. Super. LEXIS 279 (Sup. Ct. Bridgeport 1993). This result, of course, would not be expected in New York. See, Braiman v. Braiman, 44 N.Y.2d 587 (1978). It would not be expected in most cases in Connecticut either, where courts tend to find that joint custody is inappropriate and not in the best interests of the children where the parties do not get along. See, e.g., Bunting v. Bunting, 190 Conn. Super. LEXIS 141 (Sup. Ct. Fairfield Co. 1990).

Visitation and Relocation

Connecticut's visitation scheme is not unlike that of New York. However, in Connecticut, attendance at parenting education programs is mandatory unless the court and the parties agree that it is unnecessary. Such programs are established by the state's judicial department (CGS ' 46b-84).

Relocation disputes in Connecticut place the initial burden on the custodial parent, who must show that the proposed relocation is for a legitimate purpose and to a location that is reasonable in the light of that purpose. Once that has been proved, the burden shifts to the parent opposing relocation to show that it is not in the child's best interests. Ireland v. Ireland, 246 Conn. 413 (1998). This is not dissimilar to New York, except that New York requires a showing not of legitimate purpose, but of whether the relocation would adversely impact on the relationship between the child and the parent left behind. If it would, then the relocating party must show New York courts that the relocation is in the child's best interests. In analyzing the child's best interests, the Connecticut courts are expressly referred to the factors set out in Tropea v. Tropea, 87 N.Y.2d 727 (1996), New York's leading case on relocation.

Child Support

Connecticut's Commission for Child Support Guidelines has promulgated guidelines for child support, which are presumptively the sums to be imposed on the non-custodial parent in the absence of a finding by the court that the application of the guidelines would be inequitable or inappropriate (CGS ' 46b-86). Those guidelines provide for percentages that vary according to the combined net weekly parental income. At lower income ranges, they tend to be somewhat higher than New York's guidelines, but at higher income ranges, they are slightly lower than New York's. However, New York's percentages are applied to the adjusted gross salary, whereas Connecticut's are applied to the after-tax net, and so as a practical matter, the two states are roughly equivalent, at least up to a $2500 a week net income. In Connecticut, where a parent's net income exceeds that figure, there are no guidelines — child support is left to the discretion of the court.

Although parents in New York have a legal obligation to support their children until they attain age 21, in Connecticut child support runs through age 18 or a child's completion of the 12th grade, whichever first occurs. As in New York, Connecticut will enforce unambiguous agreements to support a child after majority. Even in the absence of agreement, Superior Courts can make an order at the time of the entry of a decree of dissolution requiring one or both parents to pay for some or all of a child's education through age 23 (CGS ' 46b-56c).

Equitable Distribution

Perhaps the most significant contrast between New York and Connecticut matrimonial law is in the distribution of property in a matrimonial action. Although, like New York, Connecticut attempts to divide property “equitably” between spouses — and, like New York, the title or form of ownership of a property is irrelevant — Connecticut is unique among the 50 states in that it does not make any distinction between marital and separate property. Therefore, the court has the power to distribute equitably essentially all property in the hands of either spouse (CGS ' 46b-81). Accordingly, gifts, inheritances, property acquired before marriage and property acquired after the dissolution action commences, may, in contrast to New York, all be assigned” (distributed) to either party. North v. North, 183 Conn. 35 (1981).

As in New York, in Connecticut, “equitable” does not mean “equal.” The statute recites a series of factors the court is to consider in determining which spouse receives what percentage of which property. The court is instructed to consider “the length of the marriage, the causes for the … dissolution … the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party, and the opportunity of each for future acquisition of capital, assets and income … as well as the contribution of each party to the acquisition, preservation or appreciation in value of their respective estates.” (CGS ' 46b-81[c]). Thus, in Connecticut, the fault basis for the dissolution of a marriage can be taken into consideration in distributing assets. In New York, only “egregious” fault can be considered by a court for that purpose.

However, although the categories of property that Connecticut will distribute on dissolution are much broader than those that obtain in New York, there are some areas — that of professional licenses is one — where property recognized in New York is not recognized in Connecticut for distribution on dissolution. Connecticut courts have held that a professional degree entails no present existing enforceable right to receive income in the future, but represents only an opportunity to earn future income, and is therefore, not an asset that can be assigned or distributed on dissolution. Simmons v. Simmons, 244 Conn. 158 (1998). So, in Connecticut, a husband who put his wife through law school and who gets served with divorce papers the day after graduation may be entitled to nothing but half the furniture.

New York also recognizes enhanced earning capacity as a form of property distributable on dissolution. Hougie v. Hougie, 261 A.D.2d 161 (1st Dept. 1999). Connecticut does not. At best, Connecticut's courts appear willing to consider enhanced capacity as a factor in an alimony award. Id. at 183.

Pendente Lite Awards

Connecticut courts have the same power that New York courts do to award pendente lite alimony, support and use of the family home, as well as to order counsel fees paid. The standards that are applied are roughly the same standards that a New York court would apply, but the procedural aspects of obtaining a pendente lite award in Connecticut markedly contrast with those of New York.

Viewed from the perspective of New York's elaborate written motion practice – which requires significant expense to prepare and significant time on the court's part to consider — Connecticut's procedure is disarmingly simple. A motion may be made on two pages (one of which is the proposed order). On the return date, after an attempt is made by a Family Service Officer (social workers attached to the court) to settle the dispute, the matter is heard by the court — possibly on the same day. At the end of the hearing, the court may decide the issue in an oral order, so that it is theoretically possible for counsel and the parties to leave the courthouse on the day the motion is returnable — having drafted almost no papers — with the motion having been decided!

Alimony

Connecticut courts are authorized to order either spouse to pay alimony to the other for a fixed or indefinite term and in addition to or in lieu of an equitable distribution of property. The factors to be considered in awarding alimony are largely the same factors to be considered in the assignment of property (CGS ' 46b-82). The major contrast between Connecticut and New York practice in connection with alimony is that the parties may agree – or in Connecticut, the court may order — that alimony be or not be modifiable on the event of some future occurrence.

In addition, in Connecticut, it is not automatically the case that alimony terminates on remarriage. Lump sum alimony, which is a form of property distribution, does not. Pulvermacher v. Pulvermacher, 166 Conn. 380 (1974). And while remarriage of an alimony recipient in general raises an inference that the recipient has elected to abandon any claims on the first spouse, that inference may be negated. Day v. Day, 11 Conn. Supp. 444 (1942); Lasprogato v. Lasprogato, 127 Conn. 510 (1941). In any case, if the decree does not so provide, alimony cannot be cut off simply because the recipient has remarried; while remarriage can constitute a substantial change in circumstances such that the decree may be modified, an evidentiary hearing may be required on the issue. Guzman v. Guzman, 1997 Conn. Super. LEXIS (1997). Of course, most agreements and decrees do provide that alimony ceases on remarriage.

Conclusion

The foregoing necessarily skims only the surface of the similarities and differences of New York and Connecticut jurisprudence. Even for an experienced practitioner, the process of learning one's way through the maze of another jurisdiction's laws is very much like trying to master a new foreign language. Decisions about whether both jurisdictions might be available and, if so, which to choose for your client should only be made with the help of somebody who is “fluent” in the rules of Connecticut. Knowing what options each state offers, however, will give you a starting point from which to assess the benefits and drawbacks of choosing one state over the other. Then, further research can be undertaken and assistance of a Connecticut practitioner can be sought, if necessary.

Because Connecticut serves both as a bedroom community and a weekend haven for New Yorkers, New York matrimonial lawyers often find themselves required to make a judgment as to whether a matrimonial action can be brought in Connecticut and if so, which jurisdiction is more favorable to their clients. Connecticut's matrimonial jurisprudence, while similar to New York's, differs both substantively and procedurally at a number of significant points. Unfortunately, the similarities may create something of a trap for the unwary since, by and large, the differences between New York and Connecticut matrimonial law tend to be in the details rather than in the broad strokes. This article discusses a number of the most significant points at which the laws of the two jurisdictions come together or diverge.

Jurisdiction and Grounds

In contrast to New York's 1- or 2-year residency requirement (DRL ' 230), a party may file a complaint for a dissolution of a marriage in Connecticut at any time after either party has established a residence, although no decree of dissolution can issue until at least one of the parties has been a resident for more than 12 months (Connecticut General Statutes [CGS] ' 46b-44). As in New York, “residence” in this context means domicile.

In addition to the traditional fault grounds, Connecticut will also dissolve a marriage on a finding that it has “broken down irretrievably” (CGS ' 46b-40), and the evidence of “irretrievable breakdown” need be nothing more than one party's testimony. For example, in Eversman v. Eversman , 4 Conn. App. 611 (1985), the husband filed a complaint seeking divorce on the basis of irretrievable breakdown of the marriage. He testified that he had had numerous affairs and was at the time of the hearing living with a woman whom he wished to marry. The wife opposed the petition, disagreeing with her husband's assessment of the marriage and insisting that because she still loved him and because they had not spent adequate time in counseling, the marriage could not be said to be “irretrievably broken.” The appellate court affirmed the trial court's grant of divorce, stating that under Connecticut law, both parties to a marriage need not agree that the marriage is beyond saving for the courts to dissolve the marriage on the basis of irretrievable breakdown.

Process in Connecticut is served by state marshals, who are independent contractors, but if the defendant resides out of state, Connecticut now permits extra-territorial service by anyone authorized to serve process in the jurisdiction (CGS ' 46b-57a). Because the formal requirements for getting divorced in Connecticut are significantly less rigorous than in New York, where a waiting period for residency applies and fault must be proved, Connecticut can be an attractive state in which to commence a divorce action when the grounds are weak and one spouse is likely to resist the other's desire to dissolve the marriage.

Automatic Orders

A unique aspect of Connecticut practice — one that New York would do well to adopt — is that upon service of process in a matrimonial case, a series of restraining orders forbidding the transferring, selling, encumbering or concealing of property, the removal of children, the change of insurance arrangements, the incurring of unreasonable debts, and other matters, go into effect, basically freezing the financial and other relationships of the parties until a court has had a chance to act on them. The violation of these orders is punishable as a contempt of court (Practice Book 1998, ' 25-5).

Custody

In Connecticut, there is a statutory presumption that where parents have agreed on joint custody, that joint custody is in the best interests of the child (CGS ' 46b-56a), and theoretically, the courts will grant joint custody over the objections of a party or where parents do not get along. Indeed, they have occasionally done so. See, e.g., Harvey v. Harvey, 1993 Conn. Super. LEXIS 279 (Sup. Ct. Bridgeport 1993). This result, of course, would not be expected in New York. See, Braiman v. Braiman , 44 N.Y.2d 587 (1978). It would not be expected in most cases in Connecticut either, where courts tend to find that joint custody is inappropriate and not in the best interests of the children where the parties do not get along. See, e.g., Bunting v. Bunting, 190 Conn. Super. LEXIS 141 (Sup. Ct. Fairfield Co. 1990).

Visitation and Relocation

Connecticut's visitation scheme is not unlike that of New York. However, in Connecticut, attendance at parenting education programs is mandatory unless the court and the parties agree that it is unnecessary. Such programs are established by the state's judicial department (CGS ' 46b-84).

Relocation disputes in Connecticut place the initial burden on the custodial parent, who must show that the proposed relocation is for a legitimate purpose and to a location that is reasonable in the light of that purpose. Once that has been proved, the burden shifts to the parent opposing relocation to show that it is not in the child's best interests. Ireland v. Ireland , 246 Conn. 413 (1998). This is not dissimilar to New York, except that New York requires a showing not of legitimate purpose, but of whether the relocation would adversely impact on the relationship between the child and the parent left behind. If it would, then the relocating party must show New York courts that the relocation is in the child's best interests. In analyzing the child's best interests, the Connecticut courts are expressly referred to the factors set out in Tropea v. Tropea , 87 N.Y.2d 727 (1996), New York's leading case on relocation.

Child Support

Connecticut's Commission for Child Support Guidelines has promulgated guidelines for child support, which are presumptively the sums to be imposed on the non-custodial parent in the absence of a finding by the court that the application of the guidelines would be inequitable or inappropriate (CGS ' 46b-86). Those guidelines provide for percentages that vary according to the combined net weekly parental income. At lower income ranges, they tend to be somewhat higher than New York's guidelines, but at higher income ranges, they are slightly lower than New York's. However, New York's percentages are applied to the adjusted gross salary, whereas Connecticut's are applied to the after-tax net, and so as a practical matter, the two states are roughly equivalent, at least up to a $2500 a week net income. In Connecticut, where a parent's net income exceeds that figure, there are no guidelines — child support is left to the discretion of the court.

Although parents in New York have a legal obligation to support their children until they attain age 21, in Connecticut child support runs through age 18 or a child's completion of the 12th grade, whichever first occurs. As in New York, Connecticut will enforce unambiguous agreements to support a child after majority. Even in the absence of agreement, Superior Courts can make an order at the time of the entry of a decree of dissolution requiring one or both parents to pay for some or all of a child's education through age 23 (CGS ' 46b-56c).

Equitable Distribution

Perhaps the most significant contrast between New York and Connecticut matrimonial law is in the distribution of property in a matrimonial action. Although, like New York, Connecticut attempts to divide property “equitably” between spouses — and, like New York, the title or form of ownership of a property is irrelevant — Connecticut is unique among the 50 states in that it does not make any distinction between marital and separate property. Therefore, the court has the power to distribute equitably essentially all property in the hands of either spouse (CGS ' 46b-81). Accordingly, gifts, inheritances, property acquired before marriage and property acquired after the dissolution action commences, may, in contrast to New York, all be assigned” (distributed) to either party. North v. North , 183 Conn. 35 (1981).

As in New York, in Connecticut, “equitable” does not mean “equal.” The statute recites a series of factors the court is to consider in determining which spouse receives what percentage of which property. The court is instructed to consider “the length of the marriage, the causes for the … dissolution … the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party, and the opportunity of each for future acquisition of capital, assets and income … as well as the contribution of each party to the acquisition, preservation or appreciation in value of their respective estates.” (CGS ' 46b-81[c]). Thus, in Connecticut, the fault basis for the dissolution of a marriage can be taken into consideration in distributing assets. In New York, only “egregious” fault can be considered by a court for that purpose.

However, although the categories of property that Connecticut will distribute on dissolution are much broader than those that obtain in New York, there are some areas — that of professional licenses is one — where property recognized in New York is not recognized in Connecticut for distribution on dissolution. Connecticut courts have held that a professional degree entails no present existing enforceable right to receive income in the future, but represents only an opportunity to earn future income, and is therefore, not an asset that can be assigned or distributed on dissolution. Simmons v. Simmons , 244 Conn. 158 (1998). So, in Connecticut, a husband who put his wife through law school and who gets served with divorce papers the day after graduation may be entitled to nothing but half the furniture.

New York also recognizes enhanced earning capacity as a form of property distributable on dissolution. Hougie v. Hougie , 261 A.D.2d 161 (1st Dept. 1999). Connecticut does not. At best, Connecticut's courts appear willing to consider enhanced capacity as a factor in an alimony award. Id. at 183.

Pendente Lite Awards

Connecticut courts have the same power that New York courts do to award pendente lite alimony, support and use of the family home, as well as to order counsel fees paid. The standards that are applied are roughly the same standards that a New York court would apply, but the procedural aspects of obtaining a pendente lite award in Connecticut markedly contrast with those of New York.

Viewed from the perspective of New York's elaborate written motion practice – which requires significant expense to prepare and significant time on the court's part to consider — Connecticut's procedure is disarmingly simple. A motion may be made on two pages (one of which is the proposed order). On the return date, after an attempt is made by a Family Service Officer (social workers attached to the court) to settle the dispute, the matter is heard by the court — possibly on the same day. At the end of the hearing, the court may decide the issue in an oral order, so that it is theoretically possible for counsel and the parties to leave the courthouse on the day the motion is returnable — having drafted almost no papers — with the motion having been decided!

Alimony

Connecticut courts are authorized to order either spouse to pay alimony to the other for a fixed or indefinite term and in addition to or in lieu of an equitable distribution of property. The factors to be considered in awarding alimony are largely the same factors to be considered in the assignment of property (CGS ' 46b-82). The major contrast between Connecticut and New York practice in connection with alimony is that the parties may agree – or in Connecticut, the court may order — that alimony be or not be modifiable on the event of some future occurrence.

In addition, in Connecticut, it is not automatically the case that alimony terminates on remarriage. Lump sum alimony, which is a form of property distribution, does not. Pulvermacher v. Pulvermacher , 166 Conn. 380 (1974). And while remarriage of an alimony recipient in general raises an inference that the recipient has elected to abandon any claims on the first spouse, that inference may be negated. Day v. Day , 11 Conn. Supp. 444 (1942); Lasprogato v. Lasprogato , 127 Conn. 510 (1941). In any case, if the decree does not so provide, alimony cannot be cut off simply because the recipient has remarried; while remarriage can constitute a substantial change in circumstances such that the decree may be modified, an evidentiary hearing may be required on the issue. Guzman v. Guzman, 1997 Conn. Super. LEXIS (1997). Of course, most agreements and decrees do provide that alimony ceases on remarriage.

Conclusion

The foregoing necessarily skims only the surface of the similarities and differences of New York and Connecticut jurisprudence. Even for an experienced practitioner, the process of learning one's way through the maze of another jurisdiction's laws is very much like trying to master a new foreign language. Decisions about whether both jurisdictions might be available and, if so, which to choose for your client should only be made with the help of somebody who is “fluent” in the rules of Connecticut. Knowing what options each state offers, however, will give you a starting point from which to assess the benefits and drawbacks of choosing one state over the other. Then, further research can be undertaken and assistance of a Connecticut practitioner can be sought, if necessary.