Connecticut Seal

General Assembly

 

Raised Bill No. 5509

February Session, 2012

 

LCO No. 2265

 

*02265_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING THE PAYMENT OF ALIMONY AND CHILD SUPPORT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 46b-82 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012):

(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider, the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

(b) Any award of alimony ordered by the Superior Court on or after October 1, 2012, shall be for a duration that does not exceed one-half the number of months of the length of the marriage. An award of alimony entered before October 1, 2012, shall terminate (1) in accordance with the terms of the order, (2) in accordance with the terms of a subsequent modification of the order, or (3) as otherwise provided for in this section and section 46b-86, as amended by this act. As used in this section and section 46b-81, "length of the marriage" means the number of months from the date of legal marriage to the date of filing a complaint under section 46b-45.

(c) An award of alimony ordered by the Superior Court before October 1, 2012, that exceeds the durational limit set forth in subsection (b) of this section may be modified upon the filing of a motion for modification of alimony. A party filing a motion for modification of alimony pursuant to section 46b-86, as amended by this act, shall not be required to make a showing of a substantial change in the circumstances of either party as described in subsection (a) of section 46b-86, as amended by this act.

(d) On and after October 1, 2012, the amount of alimony awarded pursuant to this section shall not exceed thirty to thirty-five per cent of the difference between the gross income of the parties, established at the time the alimony order is issued. For purposes of this section, "gross income" shall have the same meaning as set forth in the child support guidelines established pursuant to section 46b-215. When awarding alimony, the court shall exclude from the calculation of gross income: (1) Capital gains income and dividend and interest income which derive from assets equitably divided between the parties; and (2) income which the court has already considered in setting a child support order.

(e) On and after October 1, 2012, when ordering an initial award of alimony, or a modification of an award of alimony entered before October 1, 2012, the Superior Court may deviate from the durational limit set forth in subsection (b) of this section and amount limit set forth in subsection (d) of this section, upon making written findings that deviation from any such limit is necessary. Grounds for deviation may include:

(1) Advanced age, chronic illness or unusual health circumstances of either party;

(2) Tax considerations applicable to the parties;

(3) Whether a party ordered to pay alimony is providing health insurance for his or her spouse and the cost of providing such health insurance;

(4) Whether a party ordered to pay alimony has been ordered to secure life insurance for the benefit of his or her spouse pursuant to subsection (a) of this section and the cost of securing such insurance;

(5) Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties' divorce;

(6) A party's inability to provide for his or her own support due to physical or mental abuse committed by the party ordered to pay alimony; and

(7) Economic fault occurring during the last five years of the marriage.

[(b)] (f) Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony.

Sec. 2. Section 46b-86 of the 2012 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012):

(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before, on or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.

(b) In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony [is living with another person] has been maintaining a common household with another person for a continuous period of time of not less than three months under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party. For purposes of this section, a party receiving periodic alimony is deemed to be maintaining a common household when such party shares a primary residence with another person, with or without other persons. In determining whether a party receiving periodic alimony is maintaining a common household with another person, the court may consider any of the following factors:

(1) Oral or written statements or representations made to third parties regarding the relationship of the party receiving periodic alimony and the person or persons with whom he or she shares a primary residence;

(2) Whether the party receiving periodic alimony and the person or persons with whom he or she shares a primary residence are engaging in conduct and collaborative roles in furtherance of a life together;

(3) The benefit in the life of the party receiving periodic alimony and the person or persons with whom he or she shares a primary residence from the relationship;

(4) The community reputation of the party receiving periodic alimony and the person or persons with whom he or she shares a primary residence;

(5) The economic interdependence of the party receiving periodic alimony and the person or persons with whom he or she shares a primary residence, or economic dependence of such party or persons on one another, except in cases where the party receiving periodic alimony has sufficient separate property assets, or has received such assets in a settlement, and that such assets are sufficient to meet the needs of the party receiving periodic alimony; or

(6) Such other relevant and material factors as may be determined by the court.

(c) If the court finds that a party receiving periodic alimony is maintaining a common household as described in subsection (b) of this section, there shall be a rebuttable presumption that the party receiving such alimony is economically interdependent with another person or is economically dependent on another person. The party receiving periodic alimony shall have the burden of rebutting the presumption.

(d) A periodic alimony obligation suspended, reduced or terminated pursuant to subsections (b) and (c) of this section shall not be reinstated upon termination of the common household by the party who was receiving periodic alimony.

(e) The periodic payment of alimony shall terminate upon the party responsible for the payment of periodic alimony attaining the full retirement age. Such party's ability to work beyond the full retirement age shall not be a reason for the court to extend alimony, provided the court may grant a recipient of periodic alimony an extension of an existing alimony order for good cause shown. After considering and granting any such extension, the court shall make written findings that include, but are not limited to, the following: (1) There is a rebuttable presumption that the durational limit set forth in subsection (b) of section 46b-82, as amended by this act, shall be applied to the facts of any case before the court; (2) the reasons proffered by a recipient of periodic alimony to extend the receipt of such alimony beyond the durational limit establish good cause to rebut the presumption and such reasons are supported by clear and convincing evidence; and (3) there has been a substantial change in circumstance that occurred after entry of the judgment containing the alimony award. A party responsible for the payment of periodic alimony who attained full retirement age on or before October 1, 2012, may file a motion seeking termination or modification of an order for the payment of periodic alimony in accordance with the provisions of this section. For purposes of this section, "full retirement age" means the normal retirement age of the party responsible for the payment of periodic alimony in order to be eligible to receive full retirement benefits under the federal Old Age, Survivors, and Disability Insurance Program, but does not mean (A) "early retirement age", as defined under 42 USC 416, if early retirement is available to the party responsible for the payment of periodic alimony, or (B) maximum benefit age if additional benefits are available to the party responsible for the payment of periodic alimony as a result of delayed retirement.

(f) Notwithstanding the durational limit set forth in subsection (b) of section 46b-82, as amended by this act, periodic alimony shall terminate upon the remarriage of the recipient of such alimony or the death of either party.

(g) An award of alimony ordered by the Superior Court before October 1, 2012, that exceeds the durational limit set forth in subsection (b) of section 46b-82, as amended by this act, may be modified upon the filing of a motion for modification of alimony. A party filing a motion for modification of alimony pursuant to this section shall not be required to make a showing of a substantial change in the circumstances of either party as described in subsection (a) of this section.

(h) The provisions of this section shall not provide a party with the right to seek or receive modification of a nonmodifiable final order for the payment of periodic alimony included in a decree or judgment entered before October 1, 2012.

(i) The provisions of this section shall not provide a party with the right to seek or receive modification of a final order for the payment of periodic alimony solely due to an increase in the income of the party responsible for the payment of periodic alimony which occurs after the date of dissolution of the marriage.

(j) In the event that a party responsible for the payment of periodic alimony remarries, the income and assets of the spouse of such party, including any assets held in tenancy by the entireties by such spouse and party, shall not be considered in any action involving a motion for modification filed pursuant to this section.

(k) In any proceeding to modify an order for the payment of periodic alimony, evidence of income received by a party responsible for the payment of periodic alimony, which is attributable to such party's working more than one full-time job or overtime at such party's full-time job, shall be inadmissible if such party commenced working more than one full-time job or overtime at such party's full-time job after entry of the initial order for payment of periodic alimony.

[(c)] (l) When one of the parties, or a child of the parties, is receiving or has received aid or care from the state under its aid to families with dependent children or temporary family assistance program, HUSKY Plan, Part A, or foster care program as provided in Title IV-E of the Social Security Act, or when one of the parties has applied for child support enforcement services under Title IV-D of the Social Security Act as provided in section 17b-179, such motion to modify shall be filed with the Family Support Magistrate Division for determination in accordance with subsection (m) of section 46b-231.

Sec. 3. Section 46b-40 of the general statutes is amended by adding subsection (g) as follows (Effective October 1, 2012):

(NEW) (g) For purposes of this chapter, "alimony" means the payment of support from a spouse who has the ability to pay, to a spouse in need of support for a reasonable length of time, with the goal of allowing the spouse who is the recipient of alimony to become self-sufficient.

Sec. 4. Subsection (d) of section 46b-84 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2012):

(d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. Upon determining that a child is in need of maintenance, the court may order that (1) a trust account be established for the benefit of a child, and (2) a portion of any support order be deposited in the trust account and made available for the maintenance of the child under such terms and conditions as the court considers just.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2012

46b-82

Sec. 2

October 1, 2012

46b-86

Sec. 3

October 1, 2012

46b-40

Sec. 4

October 1, 2012

46b-84(d)

Statement of Purpose:

To (1) enact reforms concerning the amount and durational limits of alimony awards entered in family matters, and (2) provide family court judges with the authority to establish child support trust accounts.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]