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

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.

How to file income taxes while going through divorce.

Thursday, December 11th, 2008

Your choices of “filing status” are tied to whether you are still married on 31 December of the tax year. If you are, you may file jointly or married filing separately. If either of you (or both of you) have provided a home for minor children for more than half the year, you may use the favorable “head of household” status.

Generally, filing jointly results in the least amount of taxes. It also avoids the need to sort out deductions and exemptions for a year in which you handled finances jointly.

There are reasons NOT to file jointly:

A. You are concerned that your spouse may not accurately report either income or expenses. This may be a concern if your spouse is self-employed.

B. You will get a larger refund by filing separately.

C. You will owe less taxes by filing separately.

Reasons B and C can sometimes be negotiated. For example, if a joint return would mean an $800 refund but you would get a $500 refund filing separately, you could agree to file jointly if your spouse agrees that you get $500 from the refund. Why would your spouse agree for you to get more than half the joint refund? Because he or she might owe taxes if file separately.

How can you learn how your taxes would turn out, depending on the “filing status”? Either use tax software and figure out the refund (or taxes) under two or more filing statuses or get a CPA or other tax preparer to do it. A agreement about how to file and split the refund (or tax) should be written down and signed by you and your spouse.

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.

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.

What is family law in New Hampshire?

Monday, August 25th, 2008

In New Hampshire, “family law” is a very general term covering divorce, parenting (formerly custody), support, domestic violence, paternity, after-divorce, same-sex relationships, grandparents’ rights, interstate disputes, juvenile delinquency, abuse and neglect, CHINS (Children in Need of Services), adoption, and guardianships of minors cases. Some would also include in family adult guardianships, probate estates, and name changes.

Only a few lawyers regularly handle all of these types of cases. Most New Hampshire family law attorneys focus their practices on a subset of the larger group, such as:

A. Divorce, parenting, support, paternity, after-divorce, and domestic violence; or

B. Juvenile delinquency, abuse and neglect, and CHINS; or

C. Adoption and guardianships of minors.

Some lawyers limit their practices to just one area, such as domestic violence, same-sex relationships, or appeals of family law decisions.

If you need a lawyer for a family law problem or case, be sure to select one who regularly handles that sort of family law matter. If your issue is a specialized one, such as interstate or international parenting issues, you may have to do more research to find a knowledgeable lawyer. Even within the topic “divorce” there are subspecialties such as divorce involving a small business, relocation of one parent, and parenting schedule.

Some New Hampshire family law attorneys focus on assisting clients to settle disputes and others primarily litigate (go to court). It is important to have a lawyer whose approach you prefer, as well as one who is experienced in your type of case.

Who is the father?

Wednesday, August 13th, 2008

The father may be the biological father or a man legally determined to be the father.

When a child is born to an unmarried mother, she and the father are encouraged to sign an affidavit of paternity, swearing that he is the father. This often happens at the hospital.

When a married woman gives birth, the law presumes that her husband is the father. If both spouses and another man agree that the other man is the father, they may all sign an affidavit of paternity swearing to that fact. The other man is then legally the father.

The courts may designate the father in an adoption or in a paternity case. The New Hampshire Supreme Court recently said that if the mother has named a man as the father of her child, signed an affidavit of paternity, sought and received child support, he is legally the father, even if genetic testing says that he is not.

Changing your Divorce Orders or Parenting Plan

Thursday, July 10th, 2008

Are you looking to change your New Hampshire divorce or parenting case orders? There are 2 possible routes:

 1. Try to resolve matters with the other parent or former spouse.

 2. Ask the court to change the orders.

 Most parenting plans (required as of October 2005) and some divorce agreements state that, before going to court, the parties will try to work out any disagreement. Some say that they will seek the help of a neutral third party. See paragraph H of the court’s standard Parenting Plan.

 If you agree on how to change the order, you may just file the agreement at court. (Since the court is a government branch, certain forms must be completed.) The court will approve the change.

 If you are not able to agree on the change, even with the help of a mediator or other neutral person, you can file a “Petition to Change Court Order” available at or your local court. Paragraph 5 of this petition asks you to describe what you have done to resolve matters before filing the petition. If the parenting plan or agreement said that you would do this, the court may not help you until you do.

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.”