The procedure to convert a legal separation agreement into a dissolution agreement is governed by C.G.S. Sections 46b-65 and 46b-66 and Practice book Sections 25-36 and 25-37.
According to these statutes, a motion for a decree of dissolution after a legal separation may be filed at any time after the entry of a decree of legal separation and must state in the motion that the parties have not resumed marital relations. Mignosa v. Mignosa, 25 Conn. App. 210, 214, 594 A.2d 15 (1991).
Then, in order to grant such a decree dissolving and terminating the marriage, the court need only find that the parties have not resumed marital relations since the entry of the decree of legal separation. Schaefer v. Schaefer, 26 Conn. Sup. 224, 224-225, 217 A.2d 70 (1965). So not only does the litigant have to state there are no marital relations, the trial court then has to confirm that the statement is, indeed, a fact. First step one, then step two.
So what does that mean "marital relations"? I just looked it up in the English Dictionary online, and apparently it is a euphemistic term for sexual intercourse. So the term marital relations is to be distinguished from marital relationship, the former just having to do with the sexual part of a marriage, while the latter having to do with the whole being in a relationship, having dinner together, sitting in the same house, chit chatting, etc. etc.
I don't know about putting Memoranda of Decision online--I mean does everyone have to know this? THEY AREN'T HAVING SEX ANYMORE, GUYS! I can just imagine how this plays out in trial court. First the plaintiff's motion on not having sex, then there is the defendant's response on not having sex. Then you have testimony in trial court regarding not having sex, then the trial court's verbal determination that you are not having sex, and then you get the written one that you are not having sex.
I mean, damn, if this happened to me, I wouldn't want to talk about sex for the rest of my life!
But then, the whole decision gets onto the internet, and then your neighbors know you aren't having sex, folks on the pew next to you at Church know that you aren't having sex, pretty much the whole world knows you aren't having sex. I mean, at least with your ex.
What I want to know is if there have been situations--and I'm sure there have been--where the one party disputes the lack of marital relations and says, yes, we did too have funky, hot diggity dog marital relations under the dining room table two weeks ago and these are the details! I can, seriously, imagine a full day of testimony trying to prove or disprove that.
No, it was a makeout session--that doesn't really count. I let him kiss me once. Ok, Ok, Ok. Maybe twice, but just on the lips and there was no tongue involved.
I did not have sex with that woman!
It would be a pretty interesting day of testimony, as you can imagine! More on that later.
Anyway, in regard to converting a separation agreement into a dissolution agreement there is some disagreement as to how that is to be done . On the one side, C.G.S. 46b-66 and considerable case law dictates that the court inquire into the financial resources and actual needs of the spouses before doing so. In other words, "The fact that the agreement was presumably found fair and equitable at the time of the legal separation, does not excuse the failure of the court to make such determination (i.e. a determination regarding whether a legal separation agreement should be turned into a dissolution agreement without any kinds of changes) in the light of the situation of the parties at the time of the dissolution and to afford an opportunity for a hearing on the issues involved." Mignosa v. Mignosa, supra, 25 Conn. App. 215-216.
However, an earlier case Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984) disagrees, stating that the intention of the statutes in regard to legal separation is to reduce the role of the trial court when the parties on their way to dissolution have acknowledged that they have not resumed marital relations. Under those circumstances, "the statute requires the court to give effect to the parties' status and convert a de facto dissolution into a de jure disolution." In other words, change what is a matter of fact into a legal reality without making changes in the legal separation agreement and just incorporating it as is into the dissolution agreement.
The reason why Mitchell v. Mitchell should have a greater impact in making a decision is because an earlier decision provides a better precedent. If you recall my earlier blog regarding the development of Common Law, you will remember how I said that Courts of Law are bound by precedent, meaning that cases are decided based upon what has been decided previously. So Mitchell, as an earlier decision, is more significant than the later decisions that, for some reason or another deviated from it.
The reason why Mitchell v. Mitchell should have a greater impact in making a decision is because an earlier decision provides a better precedent. If you recall my earlier blog regarding the development of Common Law, you will remember how I said that Courts of Law are bound by precedent, meaning that cases are decided based upon what has been decided previously. So Mitchell, as an earlier decision, is more significant than the later decisions that, for some reason or another deviated from it.
If the parties agree that there has been no resumption of marital relations, then the trial court would move forward with a summary process to dissolve the marriage. However, if there was dispute over whether the parties had or had not resumed marital relations, then the parties could not proceed under the summary method and would have to move forward with ordinary dissolution proceedings.
At question is not the issue of fairness and equity, but simply the question of did the parties or did they not have marital relations.
If they did resume marital relations, then they would be required to continue forward with regular dissolution proceedings to determine whether the legal separation agreement is fair and equitable at the time of dissolution. Thus, Gilbert v. Gilbert FA 04 0485657 (May 13, 2008) states, "The actual holding of Mitchell is that once the marital relations have resumed, the parties have vacated the decree of legal separation, and, therefore, in order to obtain a decree of dissolution, the parties must proceed under Sec. 46b-40."
In other words, if marital relations were resumed, then the legal separation agreement can be changed. And that is where, as I said previously, you could end up having very entertaining court hearings on whether marital relations did or did not resume. Because if one or the other party doesn't like the legal separation agreement, making the case that you did resume marital relations could be quite beneficial.
The central point to understand is in the following remarks from the holding in Gilbert v. Gilbert, "conversely, when there has been no resumption of marital relations and no intervening change in their relationship, the statute requires the court to convert the decree [of legal separation into one of dissolution]. To require a fresh look at the agreement when there has been no resumption of marital relations makes the decree of legal separation a nullity. There would be no purpose in obtaining a legal separation. Doing so fails to give any effect to General Statutes Sec. 46b-67(b) which provides: 'A decree of legal separation shall have the effect of a decree dissolving the marriage except that neither party shall be free to marry.'
In other words, "If the parties' relationship is unchanged, the court plays a minor role and merely converts the de facto dissolution to a de jure dissolution." Elaborating further, Bemonte v. Bemonte, 44 Conn. Sup. 431, 435-36, 693 A.2d 739 [16 Conn. L. Rptr. 336] (1995) states that in a situation where there has been no resumption of marital relations, "the judgment of legal separation, once the appeal period has expired, is final. The division of assets and liability is also final. An assignment of property is nonmodifiable."
What this means to me is that, under circumstances where there is a legal separation agreement, and that agreement is a good one for you and you like it, and then the trial court tries to change it, you have considerable grounds to challenge such an attempt.
What this means to me is that, under circumstances where there is a legal separation agreement, and that agreement is a good one for you and you like it, and then the trial court tries to change it, you have considerable grounds to challenge such an attempt.
In the Buggy case, after all this discussion, the trial court continued on to make changes in the financial agreement that was in the parties' legal separation agreement. If the parties in the case had not agreed to allow these changes, granting the discussion I've just read, I seriously suspect that it would have been very tough on the trial court to have ordered those changes. Has anyone had any experience here on this issue? I would love to hear your comments.
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