Friday, February 10, 2006

Case Law Development: Alimony and Property Division May not Be Based on Entirety of Relationship but only the Marriage being Dissolved

In this case, the couple were married for 11 years, had three children, divorced, reconciled and cohabited for a number of years, and then remarried for another six years. At the time of their second divorce, their children were between the ages of 16 and 22 and the 20-year-old had a child.  (I always wonder how common this situation is.  I haven't found much research on the subject.  Professor Howard Wineberg has reported that "Approximately 10 percent of all currently married couples in the United States have separated and reconciled" Wineberg and McCarthy, "Separtion and reconciliation in American marriages," 29 Journal of Divorce & Remarriage 131-46 (1993) and my students' anecdotal reports of these situations tend to run at a rate of about 1 out of 150 students.)

The trial court granted Wife the marital home, half of Husband's pension, and 12 years of non-modifiable maintenance.  Husband appealed, arguing that the trial court had improperly relied on the total length of the parties' relationship rather than on the length of their second marriage only in making these awards.  The Connecticut Court of Appeals agreed with Husband and reversed. The court reviewed Connecticut law on the status of cohabitants and concluded that the trial court clearly could not take the period of cohabitation into account as this would undermine Connecticut publicc policy, which makes "a clear distinction between marriage and mere cohabitation, even when that cohabitation was preceded by, or ultimately led to, a marital relationship.... parties who have made the formal commitment of marriage are afforded greater rights and protections than those who choose to reside together informally."  As to the consideration of the first marriage, the court noted this issue was closer but ultimately concluded that the plain language of the statute, the principal of res judicata, and the guidance of the decisions of other states in "serial marriage cases" all supported the court's conclusion that the trial court erred in considering, as equitable factors, the prior marriage.

Loughlin v. Loughlin, 2006 Conn. App. LEXIS 58 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/02/case_law_develo_11.html

Maintenance (alimony) | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef00d83526a6ff53ef

Listed below are links to weblogs that reference Case Law Development: Alimony and Property Division May not Be Based on Entirety of Relationship but only the Marriage being Dissolved:

Comments

Post a comment