Archive for the ‘for Divorce Professionals’ Category

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.

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Federal Regulations Define Who Gets Exemption

Monday, October 27th, 2008

Treasury regulations effective 2 July 2008 clarify the definition of “custodial parent” for purposes of the dependency exemption. See CFR §1.152-4. The Internal Revenue Code, section 152(e)(4) says that custodial parent means the parent having custody for the longer period of time during the taxable year. The regulations explain how to determine “longer period of time.”

 

Generally, this requires counting the nights the child spends at each parent’s residence or with the parent at another location. If the child is at the parent’s residence, the night counts even if the parent is not present. The parent with the greater number of nights is the custodial parent. If a parent who works nights has the child most of the days in the year, that parent is “custodial.” In the night work scenario, on a school day, the child is treated as residing in the primary residence on school registration.

 

For children age 19 and over, the parent who provides over half the support may claim the exemption, provided that the child otherwise qualifies as a dependent.

 

The regulations spell out a tie-breaker if the child resides with each parent a equal number of nights – the parent with the higher adjusted gross income is treated as “custodial.”

 

The “custodial parent” may release the right to claim the exemption to the other parent. Beginning 3 July 2008, the divorce decree alone may not be used to transfer the right. Instead, the custodial parent must sign IRS form 8332 or a declaration conforming to the substance of form 8332. (Earlier decrees are still valid.)

 

The regulations allow a “custodial parent” to revoke a release for future years. This must be done on IRS form 8332 (or a successor form), which must be attached to the tax return for the first applicable year. Written notice must be given to the “non-custodial” parent and the notice documented.

 

The regulations with commentary are available on the Government Printing Office site. Note that the regulations themselves begin on page 5 of this document, beginning at “Part I – Income Taxes.” A useful discussion of these changes is available at http://www.dissotax.com/news.html.

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Guardian may pursue divorce for ward.

Thursday, October 23rd, 2008

In a decision issued 8 October, the New Hampshire Supreme Court ruled that the guardianship statute empowers the probate court to authorize a guardian for an incompetent person to obtain a divorce. After suffering a stroke in 2003, husband (age 75) moved out of the marital home and filed for divorce. His lawyer became concerned about husband’s mental competency to proceed with the divorce. After a full evaluation, a psychiatrist recommended that husband “receive assistance” in making major decisions.

Husband’s brother petitioned for and received a guardianship over husband. The guardian pursued a divorce and it was granted. On appeal, wife argued that a guardianship did not include the authority to obtain a divorce. The Supreme Court ruled that such authority was in the guardianship statute and that to interpret the statute so that neither the ward nor the guardian could act would lead to “absurd results.” For more information, see Questions and Answers About New Hampshire Guardianship.

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Biology Overruled

Wednesday, August 13th, 2008

In two recent opinions, the New Hampshire Supreme Court has said that signing an affidavit of paternity may be determinative as to who is the child’s legal father. In both cases, the mother later claimed that another man was the father and in one, a genetic test confirmed this.

In the Matter of Gendron and Plaistek found that where out-of-state paternity acknowledgment established the legal father, it was error to order genetic testing. In the Matter of J.B. and J.G. held that when mother has signed an affidavit of paternity and sought (and received) support for the child, the man is legal a parent and may seek parental rights and responsibilities under RSA 461-A. In the Matter of J.B. and J.G.was an interlocutory appeal from a Portsmouth Family Division case. The trial court asked the Supreme Court 2 questions:

(1) May petitioner maintain a parenting petition under N.H. RSA [chapter] 461-A, when he is neither a stepparent, biological parent, or grandparent to the child?

(2) Would allowing this petitioner to maintain a parenting petition violate respondent’s fundamental liberty interest to raise her son, as secured by both [the] Federal and State Constitutions?

The Supreme Court answered question 1 “yes” and question 2 “no.” The case was sent back to Portsmouth Family Division for further action.

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The Parenting Coordinators Association of New Hampshire

Wednesday, July 16th, 2008

Parenting Coordination is a new dispute resolution method for divorced parents and other parents who have a parenting plan or other final order. Mental health professionals, guardians ad litem, lawyers, and judicial officers looking for information on Parenting Coordination can turn to The Parenting Coordinators Association of New Hampshire. The site describes this new dispute resolution process for helping parents implement their parenting plan. The PCANH Handbook, a comprehensive guide available on the group website, includes sample forms such as an appointment order and parenting coordinator agreement.

The site also lists the New Hampshire professionals who have been trained in this process and links to the Association of Family and Conciliation Courts (AFCC), whose Guidelines are the national standards for the field.

The PCANH will be sponsoring a 2-day parenting coordinators training in 2009.

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ADR and Requests that the Court Change a Court Order

Thursday, July 10th, 2008

In the case called In the Matter of Conner and Conner (25 Sept. 2007), the New Hampshire Supreme Court referred to the language in the court’s standard parenting plan form about the use of a third party neutral to assist in working out disagreements. The Court called this as an “apparently mandatory mutually agreed-upon obligation” and stated “we expect parties to comply with such provisions in parenting plans.” In most cases, this would mean trying mediation before filing to reopen the case.

 

One of the recently revised forms from the Judicial Branch includes a new question based on I/M/O Conner. This is the Petition to Change Court Order. Paragraph 5 of the petition asks: What have you done to resolve matters before you filed this Petition to Change Court Order?

 

It is certainly good to encourage working out issues themselves or with the help of mediators, but the Court in I/M/O Conner expected this to happen specifically when the parenting plan included such an obligation. The petition form is implying that it is required whenever an order is to be changed, including the USO, the divorce agreement (final stip), a pre-RSA 461-A order, or one from the court in a litigated case. (How the trial courts will interpret this is yet to be seen.)

 

Note – Since I/M/O Conner, some lawyers have been changing the “shalls” to “mays” the parenting plan paragraph H on “Methods for Resolving Disputes.”

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