Posts Tagged ‘nh divorce law’

What steps should I take to help my child through the divorce?

Wednesday, April 4th, 2012

Be an active parent. Take care of your child and be involved in his or her life. Consider your priorities in allotting time to family, work, and other activities. Your child needs your time and attention more than he or she needs expensive outings or gifts. Sharing an ordinary day at home, doing the laundry, going shopping, preparing supper and doing the dishes, is quality time. Other good activities to share are bike rides, hikes, neighborhood walks, board games, and reading aloud.

 Take your child to the doctor, stay home with your child when he or she is sick, assist with a school outing. If the other parent has a class, therapy session, or lawyer’s appointment, offer to take care of the child.

 It is important to attend the child’s school and sports events, even if they occur during the other parent’s time. But take care not to have hostility between you and the other parent spoil the event for the child.

Why should I talk to a lawyer?

Thursday, March 8th, 2012

 Going through a divorce without getting any legal advice is like driving to Alaska without looking at a road map (or GPS). You might make it to Anchorage, but you will probably get lost several times, miss out on some of the sights you wanted to see, and if your car breaks down, minor inconveniences could turn into real risks.

 Under New Hampshire law, marriage and parenthood bring both rights and responsibilities. Divorce affects these legal rights and responsibilities. Thus, it is important to find out about the law and how it applies to your situation. The only way to do this is by getting legal advice. A lawyer’s legal advice is your map/GPS.

What should I do (and not do) when first thinking about divorce?

Wednesday, February 22nd, 2012

Get advice (including legal and therapeutic) before you take any significant step. Gather information on your divorce options, and your family finances. Take time to assemble this information, review it thoughtfully, and make good decisions. Most importantly:

   •    Choose a respectful method of making decisions.

   •    Don’t expose your child to hostility between you and your spouse.

   •    Don’t reach an agreement with your spouse until you get legal advice.

   •    Don’t make threats (except that you will see a lawyer).

   •    Don’t let any argument deteriorate into violence (not even throwing a plastic cup).

   •    Don’t move out without getting legal advice.

   •    Don’t cancel insurance policies or change beneficiaries.

   •    Don’t attempt to hide assets.

Alimony, property division, and taxes

Wednesday, February 8th, 2012

Alimony, or spousal support, can be awarded if one spouse needs it and the other spouse has the ability to pay it. A husband can receive alimony if he needs it and his wife is able to pay. The main characteristic of an alimony case is a substantial income difference between the spouses.

Unless the couple can reach an agreement, the court will divide the property (assets) in a fair and equitable way. This could mean a 50/50 division, or some other ratio. The assets to be divided include his assets, her assets, and joint assets. In doing so, the court may consider, among other things:

   •    The relative incomes of wife and husband

   •    Each spouse’s contribution as homemaker or wage earner

   •    The health of each spouse

   •    The total amount of family property

   •    The length of the marriage

   •    Fault (adultery, extreme cruelty, etc.)

Federal tax law can potentially lead to unexpected results in property division. A division initially intended to be 50/50 could become substantially unequal. It is important to consider taxes at the time of divorce to avoid an unanticipated tax bill. Tax exemptions and filing status are other tax issues. It is wise to have an accountant review the property division and other financial aspects of your divorce.

How is child support determined?

Wednesday, February 1st, 2012

Note: the percentages listed below are not current. The law changed in July 2013.

Generally, one parent pays support (with rare exceptions), and may have to maintain life and health insurance. Child support is based on a complicated formula called the Guidelines. To get a rough idea of what that support will be, use this method: take the gross (all) of the supporting parent’s income, subtract taxes and the cost of the health insurance covering the child, then apply to that figure the following percentages to estimate the amount of support:

   •    One child: 25 percent of net income

   •    Two children: 33 percent of net income

   •    Three children: 40 percent of net income

   •    Four or more children: 45 percent of net income

This is a simplified method for estimating child support! You must use the official forms and charts to set the accurate amount.

What about “custody?”

Wednesday, January 25th, 2012

New Hampshire has abolished the concept of “custody” in divorce. Instead, the parental rights and responsibilities of both parents are spelled out in a parenting plan. One aspect is decision-making responsibilities for the child, including educational, medical, and religious decisions. After a divorce, or an unwed parenting case, most parents continue to have joint legal decision-making responsibilities.

Another part of the parenting plan is the parenting schedule, spelling out when each parent will have responsibility for the child or children. If the court decides the parenting schedule, the test is what is in the “best interest” of the child. There is no preference for mothers or fathers. Most parents work out the parenting plan, including the schedule. In recent years, more and more families have chosen parenting schedules that share the children on a 50/50 basis, or close to that.

How do divorce and other family issues get resolved?

Wednesday, January 11th, 2012

 There are five ways of resolving disputed divorce and parenting issues:

   •    Informal discussion between the spouses

   •    Mediation with a trained, impartial person

   •    Collaborative practice with trained lawyers

   •    Negotiation by lawyers

   •    A decision by the court, after a contested hearing

Because the terms of the divorce orders may affect the family for many years, it is wise for the couple to come to an agreement by themselves, or with the help of a mediator, or through their lawyers, before the final hearing. Most couples can make some, but not all decisions by themselves. After all, many couples divorce because of their inability to communicate. Mediation and collaborative practice are decision-making choices that can improve communication. Mediation works well for many couples, and may be ordered by the court. Collaborative practice suits others who wish both to make their own decisions and to have the active involvement of their lawyers.

Negotiation through lawyers is the route traditionally chosen by couples. Most people work out, through their lawyers, the written agreements that become the basis of the divorce. Approximately 10 percent of divorce cases are decided by the court after a contested hearing.

What are the issues in a divorce?

Wednesday, January 4th, 2012

 People rarely fight in court about whether or not there will be a divorce, because the court virtually always grants it. If divorcing spouses disagree, it is usually about one or more of the following legal issues:

   •    Parental rights and responsibilities (parenting)

   •    Child support

   •    Alimony

   •    Asset and debt division

No-fault or fault?

Wednesday, December 28th, 2011

In New Hampshire, the legal basis for a divorce may be either no-fault or fault. A no-fault divorce is based on “irreconcilable differences” which have caused the “irremediable breakdown” of the marriage or civil union. This means that the legal relationship has so broken down that one or both spouses are unwilling to continue it.

Examples of grounds for a fault divorce are: adultery, extreme cruelty, and endangering health and reason. Examples of rarely used grounds would be abandonment for two years, or joining the Shakers. Approximately 1 percent of New Hampshire divorces are granted on fault grounds. Some divorces are filed on fault grounds, but later the couple agrees to a no-fault divorce. In my experience, fault divorces are more expensive, take longer, and make co-parenting more difficult.

NH Supreme Court Approves of $50 Administrative Fee for Civil Mediation

Monday, January 12th, 2009

In a decision important to all court-referred mediation, the New Hampshire Supreme Court found the $50 Rule 170 administrative fee constitutional. In the underlying personal injury case, the judge had found the fee violated Part 1, Article 14 of the N.H. Constitution and referred the question to the Supreme Court.

 

The fee in question was part of a recent revision to Superior Court Rule 170 which requires parties in most civil cases to use ADR. Such parties have the option to choose either a paid (by them) neutral or a volunteer. If a volunteer is chosen, the Rule requires each party to pay a non-refundable $50 fee, to be used to support the court system’s Office of Mediation and Arbitration. Indigent parties may have the fee waived.

 

Part 1, Article 14 provides that each person “is entitled to a certain remedy, by having recourse to the laws…to obtain right and justice freely, without being obliged to purchase it…” In 1986, the Court ruled that fees for “special sessions” of probate courts were unconstitutional, based on this provision. The parties in this case argued that the $50 ADR fee required them to “purchase justice.”

 

The Supreme Court disagreed, finding that the ADR fee was a reasonable, fixed fee to raise revenue. Such fees have been found constitutional in the case of bail commissioner fees and special master fees. The Court noted that the Article 14 prohibition is intended to prevent bribery, which is not the impact of the ADR fee. “Furthermore, the third-party neutral is not a judge and has no power to make judicial decisions. The impropriety, or appearance thereof, which was the concern in Estate of Dionne, 128 N.H. at 685, is therefore absent in this case.”

 

The Court distinguished the impact of the ADR fee on the plaintiffs and on defendants. If the plaintiff fails to pay the ADR, it is “both reasonable and constitutional” that the case be dismissed. However, defendants may not lose there right to a jury trial or to be defaulted for failing to pay the fee. For defendants, the ADR fee is a litigation cost that must be paid at some point. If not ultimately paid, the State may take measures to recover the fee, including filing suit.

 

This decision is important to the development of court-referred ADR in New Hampshire. On a practical level, the fee was established to provide a major part of the funding for the Court’s Office of Mediation and Arbitration. More generally, the decision may discourage questions about requiring litigants to pay fees for court-referred mediation.