A Guide to Resources in the Law Library
· “A marriage [or civil union] is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of marriage by a court of competent jurisdiction.” Conn. Gen. Stat. § 46b-40(a) (2008). [“. . . wherever in the general statutes . . . the term ‘marriage’ is used or defined, a civil union shall be included in such use or definition.” .” Conn. Gen. Stat. § 46b-38oo (2008) [EFFECTIVE OCTOBER 1, 2005].
· “We recognize that an annulment and a dissolution of marriage differ fundamentally. An annulment renders the marriage void ab initio [from the beginning] while a dissolution is based upon a valid marriage which terminates as of the date of the judgment of dissolution.” Durham v. Miceli, 15 Conn. App. 96, 543 A.2d 286 (1988).
· Civil Union: “Wherever in the general statutes the terms ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’ or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes, except sections 7-45 and 17b-137a of the general statutes, as amended by this act, subdivision (4) of section 45a-727a, sections 46b-20 to 46b-34, inclusive, section 46b-150d of the general statutes, as amended by this act, and section 14 of this act, the term ‘marriage’ is used or defined, a civil union shall be included in such use or definition. .” Conn. Gen. Stat. § 46b-38oo (2008) [Effective October 1, 2005].
· “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” .” Conn. Gen. Stat. § 46b-38nn (2008) [EFFECTIVE OCTOBER 1, 2005].
Contents of this chapter
§ 1 Grounds for dissolution of marriage, civil union or legal separation
§ 1.2g Imprisonment/Infamous crime
§ 1.2h Confinement/Mental illness
Tables in this chapter
Table 2 Fault and Financial Awards
Table 3 Constructive desertion
Table 6 Default in Family Matters
“A decree of dissolution of a marriage or a decree of legal separation 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;
(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).
· Incorporation by reference: “Wherever in the general statutes the terms ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’ or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes, except sections 7-45 [Preparation of certificates] and 17b-137a [Social Security number to be recorded on license applications, certain documents and death certificate. Confidentiality.] of the general statutes, as amended by this act, subdivision (4) of section 45a-727a [State policy re best interest of the child; public policy re marriage.], sections 46b-20 to 46b-34[Marriage], inclusive, section 46b-150d[Emancipation under common law] of the general statutes, as amended by this act, and section 14 of this act, the term ‘marriage’ is used or defined, a civil union shall be included in such use or definition. .” Conn. Gen. Stat. § 46b-38oo (2008)[EFFECTIVE OCTOBER 1, 2005]. [Emphasis added].
A Guide to Resources in the Law Library
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SCOPE: |
· Bibliographic resources relating to a no fault dissolution of marriage (divorce) commenced after October 1, 1997
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DEFINITIONS:
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· No fault divorce: “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). · “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). · 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). · “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). · “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).
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STATUTES:
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· Conn. Gen. Stat. (2008). § 46b‑40(c). Fault and no fault grounds for divorce or legal separation § 46b‑51. Stipulation of parties and finding of irretrievable breakdown
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COURT RULES:
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· Conn. Practice Book (2008). Chapter 25. Procedure in Family Matters § 25-2. Complaints for Dissolution of Marriage or Civil Union, Legal Separation, or Annulment § 25-7. Pleadings in general; Amendments to complaint or application § 25-8. —Amendment; New grounds for Dissolution of Marriage or Civil Union § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-10. —Answer to Cross Complaint
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CASES:
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· Embriano v. Embriano, No. FA-06 4023849 (Ct. Supp. Judicial District of Hartford at Hartford , Mar. 24, 2008). “By complaint dated June 5, 2006, the plaintiff-husband commenced this action seeking a dissolution of marriage on the grounds of irretrievable breakdown and other relief . . . . The court has considered all of the factors set out in Connecticut General Statutes Sections 46b-81, 46b-82, 46b-62 and other pertinent statutes, earnings and earning capacity differentials, causes for the breakdown of the marriage and the consequences of the financial orders set forth below.” [Emphasis added] · Grimm v. Grimm, 82 Conn. App. 41, 48, 844 A.2d 855 (2004). “The defendant failed to demonstrate that the court improperly found that the marriage had broken down irretrievably. The record clearly demonstrates the breakdown in the parties’ marriage. The fact that the defendant claims to maintain hope for reconciliation will not support a finding that there are prospects for reconciliation. The allegations raised by the plaintiff concerning the difficulties in the marriage were serious and spanned almost the entire length of the marriage. The court was within its discretion to credit the plaintiff’s version of the facts that the pattern of litigation was the result of the defendant’s attempt to thwart the dissolution proceedings, not the plaintiff’s lack of intent to end the marriage. Accordingly, we conclude that the court did not improperly find that the marriage had broken down irretrievably.” · Evans v. Taylor, 67 Conn. App. 108, 115, 786 A.2d 525 (2001). “On the basis of the record, we conclude that the court could reasonably have found that the defendant had failed to establish her claim of intolerable cruelty, and therefore it was not clearly erroneous for the court to reject intolerable cruelty as a ground for dissolution and instead grant the dissolution of the marriage on the ground of irretrievable breakdown.” · Sweet v. Sweet, 190 Conn. 657, 659, 462 A.2d 1031 (1983). “Section 46b-51 allows the court to avoid specifying fault for the breakdown of the marriage and allows the parties to avoid calling friends or relatives to testify as to the reasons for the breakdown.” · Eversman v. Eversman, 4 Conn. App. 611, 614, 496 A.2d 210 (1985). “The determination of whether a breakdown of a marriage is irretrievable is a question of fact to be determined by the trial court . . . . The fact that the defendant maintains hope for reconciliation will not support a finding that there are prospects for a reconciliation . . . . A difference, to be irreconcilable, need not necessarily be so viewed by both parties.” · Sweet v. Sweet, 190 Conn. 657, 659-670, 462 A.2d 1031 (1983). “Section 46b-51 allows the court to avoid specifying fault for the breakdown of the marriage. . . . In contrast with 46b-51, under the statutes governing the assignment of the property of the parties or the award of alimony in a contested proceeding, the court is required to consider the causes for the dissolution of the marriage.” · Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406 (1980). “No-fault divorce does not mean that the causes of a marital breakup are always irrelevant, but it does mean that determining cause is not crucial to the judicial administration of matrimonial matters.” · Gluck v. Gluck, 181 Conn. 225, 227, 435 A.2d 35 (1980). “Next, the defendant asserts that General Statutes 46b-40(c), to the extent that it authorizes the dissolution of a marriage if the marriage has broken down irretrievably, is vague, nullifies the other grounds for dissolution, prevents defenses and impairs the obligation of contracts, all in violation of constitutional strictures. The vagueness issue was resolved in Joy v. Joy, 178 Conn. 254, 255-56, 423 A.2d 895 (1979); what was said there need not be repeated here. The gravamen of the unparticularized claim that irretrievable breakdown nullifies the other grounds for dissolution set forth in 46b-40(c) and prevents defenses appears to be that the legislature has sanctioned divorce on demand. This claim too was rejected in Joy v. Joy, supra. The notion that allowing marital dissolutions based on irretrievable breakdown impairs the obligation of contracts within the meaning of article one, 10 of the United States constitution is bankrupt. Marriage is not a contract within the meaning of this clause of the constitution. Maynard v. Hill, 125 U.S. 190, 210, 8 S.Ct. 723, 31 L.Ed. 654 (1888).” · Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979). “The defendant claims that 46-32(c) is unconstitutional unless this court imposes judicial standards or guidelines to limit discretionary fact-finding by the trial courts of this state. We disagree. At least since Maynard v. Hill, 125 U.S. 190, 210-14, 8 S.Ct. 723, 31 L.Ed. 654 (1888), it has been clear that the legislature has plenary power to determine the circumstances under which a marital relationship is created and terminated . . . . The legislature could rationally conclude that public policy requires an accommodation to the unfortunate reality that a marital relationship may terminate in fact without regard to the fault of either marital partner, and that such a relationship should therefore be dissoluble in law upon a judicial determination of irretrievable breakdown. Courts in other jurisdictions with similar statutes have unanimously upheld the constitutionality of no-fault divorce.” · McEvoy v. McEvoy, 99 Conn. 427, 421, 122 A. 100 (1923). “But there are trials causing much weariness and suffering, which parties to the marriage contract must bear; the policy of the State, as well as the sacred nature of the marriage covenant, requires patient endurance.”
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WEST KEY NUMBERS: |
· Divorce #12. Causes for divorce in general · Divorce #34. Inability to live together · Divorce #36. Voluntary separation |
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DIGESTS:
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· Connecticut Family Law Citations: Irretrievable breakdown · Dowling’s Digest: Dissolution of marriage § 7
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ENCYCLOPEDIAS:
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· 24 Am. Jur. 2d Divorce and Separation (1998). §§ 22-24. No-Fault grounds §§ 25-34. Voluntary separation · 27A C.J.S. Divorce (1986). §§ 13-70. Grounds; No-Fault divorce · Dissolution Of Marriage On Statutory Ground Of Incompatibility, 19 POF2d 221(1979). · James L. Rigelhaupt, Annotation, What Constitutes “Incompatibility” Within Statute Specifying It As Substantial Ground for Divorce, 97 ALR3d 989 (1980). · Jack W. Short, Jr., Annotation, Validity, construction, and effect of ‘no-fault’ divorce statute providing for dissolution of marriage upon finding that relationship is no longer viable, 55 ALR3d 581 (1974).
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TEXTS & TREATISES: |
· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice, Family Law and Practice with Forms (1999). Chapter 15. Dissolution of marriage in general § 15.2 Breakdown of marriage relationship § 15.3 Constitutionality of no-fault law § 15.4 Other grounds for dissolution § 15.5 Separation for eighteen months
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LAW REVIEWS:
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· Robert M. McAnernery and Samuel V. Schoommaker III, Connecticut’s New Approach To Marriage Dissolution, 47 Connecticut Bar Journal 375 (1973).
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library at Middletown, One Court Street, Middletown, CT 06424. (860) 343-6560. Email
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Grimm v. Grimm 82 Conn. App. 41, 844 A.2d 855 (2004)
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“In this appeal, the defendant, Robert L. Grimm, claims that (1) General Statutes § 46b-40(c)(1) violates the free exercise of religion clauses of the federal and state constitutions,(2) the trial court improperly concluded that the parties’ marriage had irretrievably broken down and precluded expert testimony on the subject, (3) the court improperly determined the financial orders, (4) the court improperly denied his motion to open the evidence prior to judgment for the purpose of offering certain evidence and (5) the court improperly denied his motion to dismiss or to transfer the matter to another judicial district. We reverse the judgment as to the award of counsel fees only and affirm the judgment in all other respects.” p. 43.
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Constitutional issues
Free exercise of religion
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“The defendant first claims that § 46b-40(c)(1) violates the free exercise of religion clauses of the federal and state constitutions. The defendant argues that, as applied to him, § 46b-40(c)(1) violates his religious beliefs and liberties because his faith opposes divorce. We disagree.” pp. 44-45 “The United States Supreme Court has ‘consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ (Internal quotation marks omitted.)Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). General Statutes § 46b-40(c)(1) is a valid and neutral law of general applicability. The statute does not in any manner infringe on the defendant’s right to exercise his religious beliefs merely because it permits the plaintiff to obtain a divorce from him against his wishes.” p. 45
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Irretrievable breakdown |
“‘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, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). ‘We decline, as have other courts that have considered the issue . . . to circumscribe this delicate process of fact-finding by imposing the constraint of guidelines on an inquiry that is necessarily individualized and particularized.’ (Citations omitted.) Joy v. Joy, supra, 178 Conn. [254,] 255.” p. 47.
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Financial orders |
“Our Supreme Court and this court ‘have often described financial orders appurtenant to dissolution proceedings as‘entirely interwoven’ and as ‘a carefully crafted mosaic, each element of which may be dependent on the other.’ . . . Consequently, when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.’ (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999); Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). ‘Every improper order, however, does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.’ Smith v. Smith, supra, [249 Conn. 265,] 277. In determining the appropriate remedy, ‘we focus on the specific language of the trial court’s order as set forth in its [decision].’ Id., 278. As previously discussed, the court made no finding that an award of counsel fees was necessary to avoid undermining its other financial orders. The plaintiff, moreover, has not requested and presumably would not benefit from a remand in this case which comes to us in the context of its ‘’tortured history.’’ Grimm v. Grimm, 74 Conn. App. 407. Because we conclude that the award of counsel fees is severable from the other financial orders, it is not necessary to remand the case for reconsideration of the other financial orders.” pp. 55-56
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A Guide to Resources in the Law Library
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SCOPE: |
· Bibliographic resources relating to dissolution of marriage (divorce) based upon fault grounds.
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DEFINITIONS:
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· 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).
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STATUTES:
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· Conn. Gen. Stat. (2008). §46b‑40(c). Fault and no fault grounds for divorce or legal separation
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COURT RULES:
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· Conn. Practice Book (2008). Chapter 25. Procedure in Family Matters § 25-2. Complaints for Dissolution of Marriage or Civil Union, Legal Separation, or Annulment § 25-7. Pleadings in general; Amendments to complaint or application § 25-8. —Amendment; New Grounds for Dissolution of Marriage or Civil Union § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-10. —Answer to Cross Complaint
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CASES:
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· Turgeon v. Turgeon, 190 Conn. 269, 278, 460 A.2d 1260 (1983). “Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence . . . the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt.” · Posado v. Posado, 179 Conn. 568, 573, 427 A.2d 406 (1980). “In the text of the statutes, the criteria relating to the ‘the causes for the . . . dissolution of marriage’ is only one item in an extensive list of criteria that the trial court is directed to take into account.” · Kinsley v. Kinsley, 110 Conn. 695, 695-696 (1929). “The cumulative effect of the defendant’s acts and conduct as recited in the report of the committee may well have been held to have been so cruel as to have destroyed the public and personal objects of matrimony, past rehabilitation, and rendered a continuance of the marriage relation unbearable - beyond reasonable endurance - and therefore intolerable within the meaning we have given it in the ground for divorce, ‘intolerable cruelty.’” · Alden v. Alden, 21 Conn. Sup. 301, 304, 154 A.2d 522 (1959). “The desertion for three years which constitutes a ground for divorce under our statute involves the coexistence of the following four conditions: (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) the absence of justification.” · Vendetto v. Vendetto, 115 Conn. 303, 305, 161 A. 392 (1932). “The plaintiff’s ground of divorce was the fraud of the defendant in entering into the marriage contract knowing her epileptic condition, and yet, in order to induce marriage, concealing the fact from the plaintiff.”
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WEST KEY NUMBERS:
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· Divorce # 12-38. Grounds |
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DIGESTS:
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· Connecticut Family Law Citations: Fault · Dowling’s Digest: Dissolution of Marriage §§ 6-10
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ENCYCLOPEDIAS:
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· 24 Am. Jur. 2d Divorce and Separation (1998). §§ 35-128. Fault grounds · 27A C.J.S. Divorce (1986). §§ 22-40. Cruelty §§ 41-52. Desertion §§ 53-59. Personal indignities §§ 60-70. Other particular grounds
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TEXTS & TREATISES: |
· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice, Family Law and Practice with Forms (1999). Chapter 15. Dissolution of marriage in general § 15.6 Adultery § 15.7. Fraudulent contract § 15.8. Wilful desertion for one year § 15.9. Continuous absence for seven years § 15.10. Habitual intemperance § 15.11. Intolerable cruelty § 15.12. Imprisonment; life sentence or commission of infamous crime § 15.13. Five-year confinement for mental illness § 15.14. Defenses
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library at Middletown, One Court Street, Middletown, CT 06424. (860) 343-6560. Email
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Table 2 Fault and Financial Awards
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Assignment of property |
“As stated in Christoni v. Christoni, 156 Conn. 628, 629, 239 A.2d 533, on the issue of choosing alternative grounds for granting a divorce: ‘Where more than one ground for a divorce is claimed and one alleged ground is proved, it is immaterial whether or not the additional statutory ground or grounds may also exist.’ The fault of the parties in causing a marital dissolution is material, however, to the issue of an assignment of property ancillary to the marital dissolution.” Hollingsworth v. Hollingsworth, 180 Conn. 212, 214 fn. 2, 429 A.2d 463 (1980).
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Irretrievable breakdown |
“The contention . . . that a determination of irretrievable breakdown precludes the court from considering the causes of the dissolution in making financial awards is erroneous.” Sweet v. Sweet, 190 Conn. 657, 660, 462 A.2d 1031(1983).
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Factors |
“In the text of the statutes, the criteria relating to the ‘the causes for the . . . dissolution of marriage’ is only one item in an extensive list of criteria that the trial court is directed to take into account.” Posado v. Posado, 179 Conn. 568, 573, 427 A.2d 406 (1980).
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Contribution |
“We disagree with the plaintiff’s claim that the trial court, in making its award of alimony and its assignment of property, gave inordinate weight to the cause of the breakdown. There is no provision in the governing statutes requiring that awards of alimony be distributed equally between the parties . . . . The trial court structured the division of property in a way which returned to the defendant his contribution to the marriage.” Carter v. Carter, 8 Conn. App., 356, 359, 512 A.2d 979 (1986).
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Misconduct |
“While alimony, in whatever form, or an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing, a spouse whose conduct has contributed substantially to the breakdown of the marriage should not expect to receive financial kudos for his or her misconduct. Moreover, in considering the gravity of such misconduct it is entirely proper for the court to assess the impact of the errant spouse’s conduct on the other spouse. Because in making its assignment of property the trial court had a reasonable basis for it disposition we see no reason for disturbing the result.” Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).
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A Guide to Resources in the Law Library
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SCOPE: |
· Bibliographic resources relating to dissolution of marriage (divorce) based upon the grounds of adultery.
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DEFINITIONS:
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· Adultery “means voluntary sexual intercourse between a married person and a person other than such person’s spouse.” Conn. Gen. Stat. § 46b-40(f) (2008).
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STATUTES:
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· Conn. Gen. Stat. (2008) § 46b‑40(c). Fault and no fault grounds for divorce or legal separation. “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred . . .(3) adultery . . . .”
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COURT RULES:
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· Conn. Practice Book (2008). Chapter 25. Procedure in Family Matters § 25-2. Complaints for Dissolution of Marriage or Civil Union, Legal Separation, or Annulment § 25-7. Pleadings in General; Amendments to Complaint or Application § 25-8. —Amendment; New Grounds for Dissolution of Marriage or Civil Union § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-10. —Answer to Cross Complaint
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CASES:
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· Wight v. Wight, no. 0551734 (Ct. Super. Ct., J.D. New London, October 20, 2000) 2000 WL 1705741 (Conn. Super. 2000). “Adultery as a ground for dissolution under C.G.S. § 46b-40 requires proof that the other spouse has engaged in extramarital sexual relations citing Brodsky v. Brodsky, 153 Conn. 299 (1966). The adulterous relationship must be established by a fair preponderance of evidence, again citing Brodsky.” · Brodsky v. Brodsky, 153 Conn. 299, 300-301, 216 A.2d 180 (1966). “Adultery, as a ground for divorce or legal separation under General Statutes 46-13 or 46-29, requires proof that the other spouse has engaged in extramarital sexual relations. 27A C.J.S., Divorce, 21; 17 Am.Jur., Divorce and Separation, 34; see Schilcher v. Schilcher, 124 Conn. 445, 200 A. 351; Torlonia v. Torlonia, 108 Conn. 292, 302, 142 A. 843; Dennis v. Dennis, 68 Conn. 186, 195, 36 A. 34; Trubee v. Trubee, 41 Conn. 36, 40. A principal claim of error in the present case is that the plaintiff failed to prove that the defendant committed adultery with Barbara Jean Miles. Although the proof will be circumstantial in nearly every case, the plaintiff must nonetheless prove the adulterous relationship by a fair preponderance of the evidence. Zeiner v. Zeiner, 120 Conn. 161, 165, 179 A. 644. The circumstances must be such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt. Neff v. Neff, 96 Conn. 273, 275, 114 A. 126.” · Charpentier v. Charpentier, 206 Conn. 150, 154, 536 A.2d 948 (1988). “The fact that a custodial parent normally bears the principal responsibility for raising and educating children, whose needs demand primary consideration, may well justify a division of family assets that would otherwise appear disproportionate and unfair. There is no basis whatever, therefore, for the claim raised by the defendant of discrimination because of sexual preference.” · Turgeon v. Turgeon, 190 Conn. 269, 278, 460 A.2d 1260 (1983). “Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence . . . the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt . . . . The adulterous relationship must be established by a fair preponderance of the evidence.” · Neff v. Neff, 96 Conn. 273, 276, 114 A. 126 (1921). “in weighing the evidence of adultery, the court should exercise great care to see that it is not imposed upon through the intense interest of the parties to color the facts; it should not see evil where the circumstances may reasonably lend themselves to an innocent interpretion, nor on the other hand, should it refuse to reach that conclusion which the sound and unprejudiced judgment should lead to.” · Beede v. Beede, 186 Conn. 191, 196, 440 A.2d 283 (1982). “There is nothing in the record to support the defendant’s claim that the court acted punitively in making its award by focusing on the defendant’s adultery as the cause of the dissolution.”
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WEST KEY NUMBERS:
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· Divorce #26. Adultery |
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DIGESTS:
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· Connecticut Family Law Citations: Adultery · Dowling’s Digest: Dissolution of Marriage § 10 |
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ENCYCLOPEDIAS:
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· 24 Am. Jur. 2d Divorce and Separation (1998). § 59. Adultery, generally § 60. Requirement of intent · 27A C.J.S. Divorce (1986). § 60. Adultery · Adultery, 1 POF 237 (1959).
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TEXTS & TREATISES: |
· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice, Family Law and Practice with Forms (1999). Chapter 15 Dissolution of marriage in general § 15.6. Adultery
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LAW REVIEWS:
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· Victor M. Gordon, Adultery As A Ground For Divorce In Connecticut, 23 Connecticut Bar Journal 315 (1949).
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library at Middletown, One Court Street, Middletown, CT 06424. (860) 343-6560. Email
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A Guide to Resources in the Law Library
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SCOPE: |
· Selected bibliographic resources relating to dissolution of marriage (divorce) based upon the grounds of fraudulent contract.
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DEFINITIONS:
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· Fraudulent contract: “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).
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STATUTES:
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· Conn. Gen. Stat. (2008). § 46b‑40(c). Fault and no fault grounds for divorce or legal separation. “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred . . .(4) fraudulent contract . . . .”
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COURT RULES:
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· Conn. Practice Book (2008). Chapter 25. Procedure in Family Matters § 25-2. Complaints for Dissolution of Marriage or Civil Union, Legal Separation, or Annulment § 25-7. Pleadings in general; Amendments to Complaint or Application § 25-8. —Amendment; New Grounds for Dissolution of Marriage or Civil Union § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-10. —Answer to Cross Complaint
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CASES:
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· Dasilva v. Dasilva, No. 02 0470290 (Ct. Super. Ct., J.D. New Haven, Apr. 21, 2003) 2003 WL 21037549 (Conn. Super. 2003). “What amounts to ‘fraudulent contract,’ as that term is used in our divorce statute, and to that or other equivalent language, as used in the law, written or unwritten, elsewhere, to express a recognized condition justifying the annulment or dissolution of a marriage, has been much discussed, but no satisfactory and comprehensive definition applicable to all situations has been arrived at or attempted to be arrived at. Gould v. Gould, 78 Conn. 242 (1905). It is certain, however, that wherever there is a fraud on the part of one of the parties amounting to ‘a fraud in the essentialia of the marriage relation,’ or as in Gould v. Gould, supra, page 261-62, “whenever there is 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 the parties to the marriage, to prevent some essential purpose of marriage and work a practical destruction of that relation.” · Tuccio v. Tuccio, 18 Conn. Supp. 215 (1953). “. . . if the marriage was induced by fraudulent contract or representation of the epileptic as to his condition, it may be grounds for divorce on the statutory ground of fraudulent contract.” · Gould v. Gould, 78 Conn. 242, 250, 61 Atl. 604 (1930). “Such a fraud is accomplished whenever a person enters into that contract knowing that he is incapable of sexual intercourse, and yet, in order to induce marriage, designedly and deceitfully concealing that fact from the other party, who is ignorant of it and has no reason to suppose it to exist.” · McCurry v. McCurry, 126 Conn. 175, 177-178, 10 A.2d 365 (1939). “The referee refused specifically to find that the defendant entered into the marriage with the concealed intent not to consummate it or to have children and found that the plaintiff had failed to prove that allegation of the complaint. The existence of such an intent would be a question of fact; and we cannot hold that no other conclusion was reasonably possible than that she had that intent when she was married.” · Gordon v. Gordon, 11 Conn. Supp. 302, 302 (1942). “In order to make out fraudulent contract as a ground for divorce the facts misrepresented or concealed must be such as to go to the very essence of the marriage.” · Horowitz v. Horowitz, 6 Conn. Supp. 14, 16 (1938). “The false representation of a woman that she is pregnant by the man who is thereby induced to marry her is not the representation of a fact which if it does not exist prevents some essential purpose of marriage and works a practical destruction of the relationship.” · Wetstine v. Wetstine, 114 Conn. 7, 12, 157 A. 418 (1931). “Misrepresentation by the defendant as to her age, her name, and her nationality would not furnish a sufficient basis to dissolve a consummated marriage on that ground . . . .” · Lyman v. Lyman, 90 Conn. 399, 403, 97 A. 312 (1916). “In consonance with this principle, the courts are practically agreed in holding that antenuptial pregnancy by another man, if concealed by the wife from the husband, who was himself innocent of improper relations with her, is a fraud upon him justifying a divorce or annulment of the marriage, as the appropriate remedy in the jurisdiction may be.”
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WEST KEY NUMBERS:
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· Divorce #18. Grounds existing at time of marriage. Fraud or duress in procuring marriage |
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DIGESTS:
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· Connecticut Family Law Citations: Fault · Dowling’s Connecticut Digest: Dissolution of marriage § 7
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ENCYCLOPEDIAS:
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· 24 Am. Jur. 2d Divorce and Separation (1998). Fraud § 113. Generally § 114. Premarital unchasity § 115. Pregnancy at time of marriage § 116. —Effect of husband’s guilt or knowledge Misrepresentation or concealment § 117. Birth or parentage of child § 118. Prior marriage § 119. Insanity or mental affliction · 27A C.J.S. Divorce (1986). § 62. Fraud and duress · Annotation, What Constitutes Impotency As Ground For Divorce, 65 ALR2d 776 (1959).
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TEXTS & TREATISES: |
· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice, Family Law and Practice with Forms (1999). Chapter 15 Dissolution of marriage in general § 15.7. Fraudulent contract
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library at Middletown, One Court Street, Middletown, CT 06424. (860) 343-6560. Email
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A Guide to Resources in the Law Library
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SCOPE: |
· Selected bibliographic resources relating to dissolution of marriage (divorce) based upon the grounds of wilful desertion for one year with total neglect of duty.
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DEFINITIONS:
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· Wilful desertion: “the wilful 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). · “The elements of a cause of action on the grounds of desertion are (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). · “When our legislature, in 1843, adopted as grounds of divorce a vinculo, ‘habitual intemperance’ and ‘intolerable cruelty,’ it used these words with their ordinary meaning, but with special reference to what had been since 1639 our settled policy in respect to divorce; i.e., marriage is a life status and should never be dissolved, unless one of the parties is guilty of conduct which in itself is a practical annulling and repudiation of the marriage covenant. Wilful desertion for such a length of time as the statute says shall conclusively prove a permanent abandonment and repudiation of all marital rights and duties, had been a ground for divorce. Following this analogy the legislature, in 1843, made grounds of divorce: intemperance so long continued that the fixed habit renders the party incapable of performing the duties of the marriage relation; and cruelty of such a nature as to be intolerable, and to render a continuance of the relation by the suffering victim impracticable.” Morehouse v. Morehouse, 70 Conn. 420, 426-427, 39 A. 516 (1898). [emphasis added]
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STATUTES:
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· Conn. Gen. Stat. (2008). § 46b‑40. Grounds for dissolution of marriage; legal separation; annulment (c). Fault and no fault grounds for divorce or legal separation. “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred . . .(5) wilful desertion for one year with total neglect of duty . . . .” (e). “In an action for dissolution of a marriage or a legal separation on the ground of wilful desertion for one year, with total neglect of duty, the furnishing of financial support shall not disprove total neglect of duty, in the absence of other evidence.”
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COURT RULES:
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· Conn. Practice Book (2008). Chapter 25. Procedure in Family Matters § 25-7. Pleadings in general; Amendments to Complaint or Application § 25-8. —Amendment; New Grounds for Dissolution of Marriage or Civil Union § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-10. —Answer to Cross Complaint
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CASES:
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· Toth v. Toth , 23 Conn. Supp. 161, 178 A.2d 542 (1962). “there is no question of the validity of the ground of constructive desertion where the facts of the same fit in with the definition of wilful desertion . . . found in Connecticut cases in construing our statutes.” · Schick v. Schick, 17 Conn. Supp. 232, 233 (1951). “Desertion requires not only separation for the requisite period of three years but also an intent, persisting throughout that entire period, not to resume the marriage relationship. Separation alone is not the equivalent of desertion.” · Baccash v. Baccash, 11 Conn. Supp. 387, 389 (1942). “In order to justify a husband in leaving his wife there must be such improper conduct on her part as wo |