Many people approaching divorce are understandably concerned about how they will divide their wealth with their soon-to-be ex-spouses. Some do not want to split up family businesses, while others cannot imagine being without heirlooms, collections or memory-filled vacation homes.
People may harbor misconceptions about asset entitlement in a Connecticut divorce because property-division laws differ from state to state. To get some perspective, today we shed some light on the law and practices surrounding property division in Connecticut divorce.
Other property-division systems
To understand the process in Connecticut, it is helpful to briefly look at the other two main property-distribution regimes, which are “dual classification systems.” Courts in those states divide assets into two categories before they distribute them according to a state’s laws. See generally B. Turner, 1 Equitable Distribution of Property, 4th, ch. 2.
The first classification groups property (and debt) together that is subject to division because both spouses have ownership interests in it (“community property” in community-property states or “marital property” in many equitable-distribution states).
The second classification is of “separate property” meaning assets belonging to an individual spouse that usually include inheritances or gifts received by one of them individually, or property owned pre-marriage. The owner usually keeps their own separate property, which is not normally part of divisible community or marital property.
Connecticut property classification
Our state is an all-property, equitable-distribution jurisdiction, of which there are 14 others. B. Turner, 1 Equitable Distribution of Property, 4th, sec. 2:8. Our courts do not divide property into two categories and treat them differently at final distribution. Instead, literally all property is subject to distribution, including what would be separate property elsewhere.
Accordingly, all-property systems are sometimes called “hotchpot or kitchen sink” regimes. See M. Wenig, The Marital Property Law of Connecticut Past, Present and Future, 1990 Wis. L. Rev. 807 (1990).
The statute states that “[a]t the time of entering a decree annulling or dissolving a marriage or for legal separation … the Superior Court may assign to either spouse all or any part of the estate of the other spouse.” CT Gen. Stat. sec. 46b-81. So, “all property” subject to equitable distribution includes assets either spouse owned before marriage, any assets or income brought into the marriage by either spouse or jointly, and property either litigant received individually as gift or inheritance.
The court begins by defining the parameters of the “marital estate” consisting of all property subject to division in the divorce. The marital estate is also called the “marital property,” but with a different meaning than described above in other states. Marital property in Connecticut is all property subject to division, including:
- Whether acquired before or during marriage
- Whether title is in the name of one or both spouses
- Whether it was purchased, earned, or received as a gift or bequest
Judges are to view property broadly and expansively, rather than narrowly. See Lopiano v. Lopiano, 247 Conn. 356 (1998) (superseded by statute on other grounds); Borneman v. Borneman, 245 Conn. 508 (1998).
Blurred lines
While Connecticut courts do not have to separate property into two classes before division, sometimes how far to sweep to gather all marital property is not entirely clear. Areas that require legal and factual analysis to determine whether something is part of “all property” can include:
- Property co-owned with parties outside the marriage
- Property subject to the terms of a valid prenuptial or postnuptial agreement
- Assets held in a trust
- Property that may be received in the future that is more certain than a “mere expectancy”
An experienced attorney can assist a divorce litigant with unraveling the nature of property that is questionable as to whether it is properly marital property.
After the parameters of the distributable estate are set, the court normally assigns value to each asset in order to make equitable division possible.
The equitable in equitable division
It is well established that equitable distribution of property in Connecticut statute does not mean that the asset division must be equal – a 50-50 split is NOT required. Rather, “equitable” treatment of the property division in divorce is grounded in fairness and justice, and what is fair and just is not always equal. See Wendt v. Wendt, 1998 WL 161165 (unpublished 1998).
Commentators observe that the wide discretion of the trial judge in an all-property system to divide and distribute property fairly is considerably powerful. It is also subject to an individual judge’s perceptions and notions of equity in each case. It is not surprising then that a common criticism of all-property systems is that the judicial outcomes tend to be less consistent and more unpredictable. Further, this diminished ability to predict what the judge is likely to do makes it harder to negotiate a settlement because the litigants do not have the likely outcome in court as a standard against which to compare their positions. See B. Turner, Equitable Distribution of Property, 4th, sec. 2:8, 2:10.
One legal scholar went as far as to say that “[t]wo hundred trial judges in the state all have two hundred different ideas; we don’t have any standards to determine what their limitless discretion is.” See Wenig at fn279.
Having an experienced Connecticut litigator is important at trial because overturning a judge’s property distribution decisions on appeal is a high hurdle. The Connecticut Supreme Court has described complex divorce decrees involving alimony, support, money and property as “carefully crafted mosaic[s]” that the high court is “reluctant to disturb without adequate cause.” Brody v. Brody, 315 Conn. 300 (2015).
The court continued in Brody that in family matters the trial judge has the “distinct advantage over an appellate court … where all of the surrounding circumstances and the appearance and attitude of the parties are so significant … In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its actions.”
But in exercising its considerable discretion to divide property, the trial judge must consider a series of factors that give weight to the property’s “nature and value” and to what is equitable in a particular divorce:
- Length of marriage
- Reasons for divorce
- Ages of litigants
- Health
- Stations
- Occupations
- Income
- Earning capacities
- Vocational skills
- Educations
- Employability
- Estates
- Liabilities and needs
- Opportunities for “future acquisition of capital assets and income”
- Contributions of each litigant to the “acquisition, preservation or appreciation in value of their respective estates”
CT Gen. Stat. sec. 46b-81.
Takeaways
A Connecticut spouse facing divorce – especially where significant wealth is at issue – should seek out a family lawyer with extensive courtroom experience in divorce proceedings. Seasoned legal counsel will have the depth of knowledge to understand how to conduct a comprehensive investigation into the extent and nature of all property and to present evidence and arguments to the court that will give the judge an understanding of what is really fair and just under the circumstances.
Only then can the court make a truly equitable property distribution.
