1. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Determining Marital Standard of Living and Other Challenges Ellen B. Lubell Law Offices of Ellen B. Lubell 965 Post Road East Westport, CT 06880 elubell@ellenlubell.com

2. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan What does it say? In a post-judgment Motion for Modification of alimony, the movant must prove: 1.A substantial change in circumstances (see C.G.S.§46b-86(a)); and 2.The original alimony award is inadequate to fulfill its purpose, as of the date of divorce. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 2

3. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v Dan The Supreme Court prefers time limited alimony… because such award serves as an incentive for the recipient to use diligence in procuring training or skills to make the recipient economically self-sufficient. (See Roach v Roach 20 Conn. App. 500 (1990)) 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 3

4. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan What is the relationship, if any, between the original alimony award and the recipient’s standard of living? If the original alimony award is reached by way of settlement and memorialized in a Separation Agreement, the trial court, in a post judgment Modification hearing: a)Must presume the award was sufficient to meet the recipient’s financial needs and allow the recipient to maintain the standard of living enjoyed during the marriage. b)Not increase an award solely because the payor’s income has increased significantly. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 4

5. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan The payor’s post-judgment financial success is theirs to enjoy The former spouse should not benefit from the recipient’s financial success, post- judgment. “There is little, if any, legal or logical support for the proposition that a legitimate purpose of alimony is to allow the recipient spouse’s standard of living after award to be comparable with the payor’s post divorce standard of living. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 5

6. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Overcoming Challenges Created by Dan 1.Include a clause in the Separation Agreement that a substantial change in either party’s financial circumstances, standing alone, shall be deemed to be sufficient basis for a post-judgment modification. 2.Include a clause that the recipient’s financial needs are not satisfied by the alimony agreed to and submit a Standard of Living Analysis on behalf of the recipient. 3.Have alimony be a percentage of the payor’s gross earned income from employment. 4.Include in the Separation Agreement a summary of the settlement negotiations that resulted in the agreed upon alimony/child support award. 5.Try every case. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 6

7. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Now What? C.G.S.§46b-86 has been judicially modified The movant faces the additional burden of overcoming the “presumption” that the original award was sufficient to meet the recipient’s financial needs at the time of divorce. By precluding, except in (unidentified) extraordinary circumstances, the trial court’s authority to order a post-judgment modification solely on the basis of a substantial increase in the income of the supporting spouse. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 7

8. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Now What? Dan will be retroactive and apply to Motions for Modification, pending before December 16, 2014 but not decided until after the Dan decision was rendered. Notwithstanding the recipient’s non-economic contributions during a marriage (as primary parent, homemaker, accommodating corporate spouse, etc.) the trial court should assume that the recipient’s post-divorce earnings are solely attributable to his/her endeavors post-divorce. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 8

9. AAML Connecticut Chapter - Complex Financial Issues Seminar Since Dan v. Dan: McKeon v Lennon 155 Conn.App. 423 (2015) (Cert. granted) In connection with a post-judgment Motion to Modify and increase child support: “as both alimony and child support orders are subject to the same modification requirements, under Dan, the wife must show additional circumstances, beyond the husband’s increased income to establish a substantial change in circumstances.” 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 9

10. AAML Connecticut Chapter - Complex Financial Issues Seminar Trial Courts Post-Dan: Emmon v Emmon (April 9, 2015, Tolland) Dan cited with approval for principle: That an increase in the husband’s disposable income, in isolation, would not be sufficient to modify alimony, absent exceptional circumstances. The original order was presumed to have met the needs of the mother and the parties’ four children at the time of divorce. Rubenstein v Rubenstein (May 26, 2015, New London) The trial court denied the wife’s Motion to Dismiss (premised on Dan) in which the former wife argued the increase in her net worth from $100± to $1,000,000± would not provide a basis for post-judgment modification and held “the ordinary alimony modification rules (not Dan rules) apply.” 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 10

11. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Most Recent Trial Court Decisions Cohen v Cohen (September 14, 2015, Stamford) The parties divorced in 2001, after a 27 year marriage. In a modification hearing 2011/2012, the court modified the original order, replacing alimony as a percentage of earnings with a fixed dollar amount. Subsequently, the wife moved to have alimony be a function of the husband’s earnings, rather than a fixed amount. Dan was distinguished (Ms. Cohen was not seeking more than the original award, rather restoration of the original award). The Court ordered modification was intended to fulfill the underlying purpose of the original dissolution order. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 11

12. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Most Recent Trial Court Decisions Iassogna v Iassogna (January 5, 2016, Bridgeport) The parties were divorced in 2012, pursuant to a Separation Agreement. The Husband was to pay alimony in the amount of $13,000 per month. Subsequently, there were two downward modifications. The payor asserted four claims, including “the plaintiff doesn’t need the alimony she received given her decrease in expenses.” The Court recognized the flip side of Dan and distinguishes the Supreme Court case on the grounds that Dan addressed an original alimony order. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 12

13. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Most Recent Trial Court Decisions Halperin v Halperin (January 20, 2016, New London) The parties were divorced in 2010, after a twenty-two year marriage. Their thirty-five page, detailed Separation Agreement included a very detailed definition of income and included a formula for payments. The payor acknowledged a substantial increase in income, cited Dan in opposition to the Wife’s claims (that actually addressed the definition of income). The Court did not apply a Dan analysis. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 13

14. AAML Connecticut Chapter - Complex Financial Issues Seminar Dan v. Dan Most Recent Trial Court Decisions Idone v Idone (January 19, 2016, Litchfield) The parties were divorced in 2012, after a twenty-six year marriage. The parties lived large, on the Husband’s work as a successful bond trader, until 2009. By agreement, alimony started one year later, and was fixed at $1,600 per month. The Husband’s income had more than doubled at the modification hearing. The trial court referenced Dan and distinguished it on the grounds that the original order was not sufficient to fulfill the underlying purpose of alimony, accordingly, an increase in the supporting spouse’s salary, in and of itself, may (and did) justify an increase in the award. 4/15/2016 Dan v. Dan - Determining Marital Standard of Living and Other Challenges Ellen B. Lubell, Esq. 14