Implied Modification of a NH Parenting Plan

Modification of a New Hampshire Parenting Plan is Governed by a Statute – RSA 461-A:11

Experienced New Hampshire child custody lawyers and divorce attorneys often file a Petition to Change Court Order after a Final Decree has been issued in a New Hampshire divorce or parenting case. Modification of  a New Hampshire parenting plan is governed by a statute, NH Revised Statutes Annotated 461-A:11.  This statute is entitled “Modification of Parental Rights and Responsibilities.”

“But often a parent seeking a modification, or opposing a modification, does not realize s/he may have already modified the parenting plan by his or her actions or verbal agreement.”

The Parents’ Actions or Verbal Agreement May Also Constitute a Modification to a New Hampshire Parenting Plan

This statute lists many ways a New Hampshire parenting plan can be modified. But often a parent seeking a modification, or opposing a modification, does not realize s/he may have already modified the parenting plan by his or her actions or verbal agreement. While this may come as a surprise (good or bad), it often is a significant issue in a NH Parenting Plan modification case. Let me explain.

Parenting plans are often agreed-upon between the parents, filed, and approved by the Court. The parenting plan represents what the parties think is best for the child/ren at the time it is filed and approved.  But both child/ren and parents grow, change and evolve after the parenting plan is filed and approved.  The parenting plan no longer reflects what works for the parents and/or the child/ren.

The result is that parents change the parenting plan by their verbal agreement and/or their actions without writing the change down. For example, it’s common for parents to change pick-up and drop-off times and locations to suit their needs. It is also common for one parent to exercise more, or less, parenting time than what was agreed-upon in the parenting plan. Finally, one parent may not enforce parenting plan provisions that limit the other parent’s time with the child/ren.

Almost invariably, however, the parents have a falling out (as often as not, the falling out has little to do with the parenting plan, and much to do with the relationship dynamics between the parents) and one parent demands a return to the provisions in the parenting plan; the other parent refuses to do so. Both parties seek legal help. Which parent is right?

The Court Determines if a NH Parenting Plan has been Modified by the Parents’ Actions or Verbal Agreement

The answer is determined by the Court.  The Court usually holds several hearings and often appoints a Guardian ad litem to investigate the parties’ allegations.  After conducting a final modification hearing, the Court reviews the evidence presented by both parents at the hearing and considers whether it shows that both parties, through their actions or verbal agreement, agreed-to the modification.  The Court also looks to see if the modification occurred frequently enough, and over enough time, to truly constitute a permanent modification to the parenting plan.  The Court’s final modification order often bears little resemblance to what either party wanted when the parenting plan modification action began.

Experienced New Hampshire Child Custody Lawyers Can Have a Major Impact When an Implied Modification is Alleged

Does this sound complicated? It often is, which is why retaining an experienced New Hampshire family law practitioner is so important.  An experienced NH attorney will evaluate the facts and realistically assess whether an implied modification of a New Hampshire parenting plan has occurred.  A New Hampshire attorney will further help you gather evidence to support or oppose an implied modification, work with the Guardian ad litem, and represent you at hearings as the case progresses.

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Read our testimonials and contact the aggressive New Hampshire child custody lawyers at the T.W. Stevens Law Firm, with offices in Portsmouth and Dover.  You’ll learn why many of our clients consider us to be the best family law attorneys in New Hampshire.

 

 

 

 

 

Posted in Family Law, Law Blog

How is Child Support Calculated in NH Divorce and Parenting Cases?

Answers to Frequently Asked Child Support Questions Posed by Self-Represented Parties in NH Divorce and Parenting Cases

New Hampshire divorce cases involving minor children, and all parenting cases, require the parties and the family division court to consider child support.  While NH divorce lawyers and family law attorneys regularly deal with child support, self-represented parties do not.

“If you are representing yourself, you may be paying too much, or receiving too little, child support from the other parent.”

Self-represented parties sometimes pay more child support than they need to or, conversely, receive less child support than they should.  This blog post will attempt to answer some common questions self-represented parties have regarding child support.

What is Child Support?

Child support is the obligation of one parent to provide the other parent with money to care for the parties’ child(ren) after the parents have separated.  The idea behind child support is that both parents are financially responsible for their child(ren).  And that the child(ren) should not be economically disadvantaged in either household after the relationship ends.

Another way to think about child support is from the perspective of the state.  When parents split up, their expenses increase, while their respective incomes stay the same.  Expenses increase because each parent must establish a separate household and separately pay expenses they once shared.  One parent, usually the one who was the primary breadwinner during the relationship, is often better situated to separately provide for the child(ren).  The lower earning parent, or the parent who stayed at home and raised the children, is often unable to make ends meet after the relationship ends.  Without child support, this parent would ask the state for financial help – cash assistance, food stamps, health care, etc.  The state cannot bear the huge financial cost this would entail and requires child support to avoid this burden.

Which Parent is Obligated to Pay Child Support?

In the past, fathers almost invariably paid mothers child support.  This was based on the traditional roles played by each in the family unit.  Mothers stayed at home, raised the children, and did not pursue their careers.   Fathers worked full time and financially supported the family.  When parents in a traditional relationship separated, the mother was still expected to house and raise the children, but lacked the money to do so.  The father was expected to move out into smaller accommodations, continue to work, and see the children sparingly – every other weekend and one evening during the week, typically.  Under these circumstances, it made sense that the father would pay the mother child support.

Fast forward to the present.  Mothers. like fathers, now work full-time to support the family.  Fathers, like mothers, share in child rearing activities.  So, who pays child support when the parents separate?  It can’t be based on the parent’s sex – that would be state-sponsored discrimination.  It also can’t be based upon who has the children more of the time – that parent might very well earn more than the parent who sees the child(ren) less often.  In New Hampshire, assuming shared residential responsibility, the parent who earns more often is obligated to pay child support.  Why?  Because the higher earning parent can provide the lower earning parent with money so that the children cannot differentiate between the economic lifestyles of both parents.

How Much Child Support is a Parent Required to Pay?

New Hampshire uses a child support guideline formula to determine how much a parent is required to pay.  This formula uses the gross income of both parents, the number of children, child care expenses, and other factors to calculate the amount of child support.  This formula is accessible to unrepresented parties in the NH child support calculator.

Under the formula, the parent required to pay child support is the “obligor.”  But which parent is the obligor?  Surprisingly, there is no hard and fast rule –  “obligor” is not defined in the child support statute.

While usually the parent with the higher income is the obligor, this is not always true.  The lower earning parent can be the obligor if s/he exercises very little parenting time with the children.  Conversely, the higher earning parent who exercises primary residential responsibility with the child(ren) can be the obligor if s/he earns far more than the noncustodial parent.  To make matters more confusing, the parties may earn roughly the same income and exercise equal or approximately equal parenting time. In these circumstances, the “obligor,” while technically the higher earning parent, isn’t always required to pay child support.

Needless to say, the family division court ultimately decides which party is the obligor in the event of a dispute.

The parents’ gross incomes are used to calculate child support.  Gross income is defined in the statute, however, suffice it to say that almost all income is includable as gross income.  Federal income taxes are not deducted when calculating gross income. Bonuses, when received regularly, are included in gross income.

The number of children are also input into the formula to determine child support. The more children, the higher the percentage of the obligor’s income that is devoted to child support.  The formula then allows both parties to deduct child-related expenses, one-half of state income taxes and one-half of self-employment taxes from their gross incomes and calculates the amount of child support owed, expressed in monthly, biweekly, or weekly increments.  This amount is the presumptively correct amount of child support the obligor parent is required to pay the obligee parent.

Is There Any Way to Pay More or Less Than the Presumptively Correct Amount of Child Support?

Every rule has its exceptions, and the child support statute is no different.  The obligor can pay more, or less, than the presumptively correct child support amount if s/he can show certain special circumstances.  Whether or not a special circumstance exists can be agreed-upon by the parties or determined by the family division court.  Special circumstances include the parenting schedule, a parent’s high or low income, extraordinary child care expenses, and any other factor that avoids an unreasonably high or low support order.

Can a Child Support Obligation be Modified?

Yes, but only after filing the required paperwork with the family division court.  Either parent is entitled to a review of the current child support order three years from the date the original child support order was issued.  Alternatively, either parent can petition the family division court to review the child support order if s/he believes a substantial change in circumstances has occurred which makes the current child support order improper or unfair.

When Does Child Support End in New Hampshire?

Child support ends when a child turns eighteen or graduates from high school, whichever is later.  However, a parent caring for a child with special needs may receive child support after these milestones under certain circumstances.

 

Contact Us

We are experienced and aggressive child support lawyers in Dover and Portsmouth, New Hampshire.  Read our client testimonials and learn why many of our clients consider us to be the best child custody attorneys in New Hampshire.

Posted in Family Law, Law Blog

New Hampshire Guardian ad Litem FAQ’s

Guardians ad Litem in NH Divorce, Parenting and Modification Cases

New Hampshire divorce, parenting and modification actions sometimes involve serious disagreements between parents over their

“The guardian ad litem is the voice of the children and his role is important because the children themselves, absent a court order, do not testify at any hearing”

child(ren)’s upbringing; substance abuse, alienation, an unsafe parenting environment,  verbal and emotional abuse, the living preferences of a mature minor, etc.  In these cases it is common for a Guardian ad Litem to be appointed.  While skilled New Hampshire divorce lawyers and family law attorneys regularly interact with guardians ad litem, self-represented parties do not.  Self-represented parties are often unclear on the guardian ad litem and his/her role in their divorce, parenting or modification case.  This blog post will answer some basic questions many self represented parties have regarding guardians ad litem.

What is a Guardian ad Litem in a New Hampshire Divorce, Parenting and Modification Case?

A guardian ad litem is an individual who is brought into a New Hampshire divorce, parenting or modification case to represent the parties’ child(ren).  The guardian ad litem is not a lawyer for the child(ren), but is a party to the case and appears at court hearings on behalf of the child(ren).  In essence, the guardian ad litem is the “voice” of the children and his/her role is important because the children themselves, absent a court order, do not testify at any hearing.

Guardians ad litem are trained and certified by the New Hampshire Guardian ad Litem Certification Board.  There is no requirement that a guardian ad litem be an attorney.  In fact, many guardians ad litem are not attorneys.

How does a Guardian ad Litem become a party to a divorce, parenting or modification case in New Hampshire?

Guardians ad litem become a party to a case at the request of either party or the family division court.  The family division court is not required to appoint a guardian ad litem even if one party requests one.  A guardian ad litem is typically appointed when the family division court needs to know more facts about an important parenting issue in dispute.  A party can request that a particular guardian ad litem be appointed, but the family division court has the final say.

The parties are notified that a guardian ad litem has been appointed when they receive an order on appointment of guardian ad litem in the mail from the family division court.  The order on appointment of guardian ad litem lists the name and contact information for the guardian ad litem.  It also lists the issues the family division court is asking the guardian ad litem to investigate and make recommendations on.  Common issues to be investigated include:

  • decision-making responsibilities;
  • residential responsibilities;
  • parenting time;
  • special needs of the child(ren);
  • counseling for either party or the child(ren);
  • psychological evaluations for either party or the child(ren);
  • parenting skills of either party;
  • appropriateness of the either party’s home environment;
  • substance abuse by either party or the child(ren);
  • violence, physical abuse, emotional abuse;
  • sexual abuse;
  • supervision of parenting time;
  • rights of grandparents to visit;
  • influence of companions of either party on the child(ren);
  • maturity of child(ren) stating a preference;
  • travel arrangements;
  • time, place and manner of exchange for parenting time;
  • assessment of bond between each party and the child(ren) or siblings;
  • other issues the GAL deems relevant based upon his/her investigation.

The 0rder on appointment of guardian ad litem also lists each party’s financial responsibility, assessed as a %, for the guardian ad litem’s work.  Guardians ad litem typically charge $60.00 per hour and receive $1,000.00 from the parties in the % expressed in the order. It is very common for guardians ad litem to exceed $1,000.00 and ask the family division court for an additional $1,000.00 from the parties.

What does the Guardian ad Litem do in NH Divorce, Parenting or Modification case?

The guardian ad litem first sends the parties a stipulation (agreement) for them to sign and return. The stipulation is the terms under which the guardian ad litem will represent the child(ren) in the case.  In the stipulation, the guardian ad litem details his/her hourly rate, the amount owed by each party (as indicated in the order on appointment of guardian ad litem), and reminds the parties that his/her written reports are confidential and should not be shared with third parties.

After the parties return the stipulation to the guardian ad litem, s/he sends them each a questionnaire.  The questionnaire contains questions relevant to the issue the family division court asked the guardian ad litem to investigate.  It typically also asks for the names and contact information for references.  Finally, the guardian ad litem includes authorizations to release records for medical, educational, or other institutions that may have relevant information.

After the parties return the questionnaire, the guardian ad litem visits the child(ren) at both parties’ residences.  The guardian ad litem interviews the child(ren) and both parties, and may contact the references each party listed on the questionnaire.  The guardian ad litem reviews any documents s/he requested.

After the guardian ad litem has completed his/her investigation, s/he writes a final report and makes written recommendations on the issues raised by the family division court in its order on appointment of guardian ad litem.  The final report and recommendations are sent to both parties and the family division court.  The final report is confidential and cannot be shared with third parties.

One, or both, of the parties is almost invariably unhappy with the guardian ad litem’s recommendations.  Both parties can review the guardian ad litem’s file in order to determine on what information s/he relied in making his/her recommendations.  Both parties thereafter can question the guardian ad litem at the final hearing on the issues in dispute.

Contact Us if you are having issues with the guardian ad litem in your divorce, parenting or modification case

We are experienced divorce attorneys and family law lawyers in Portsmouth and Dover New Hampshire.  We regularly interact with guardians ad litem and can help you put your best foot forward in your divorce, parenting or modification case. Read our client testimonials and learn why many of our clients consider us to be the best divorce and child custody lawyers in Portsmouth and Dover, New Hampshire.

Posted in Family Law, Law Blog

Contempt in NH Divorce and Parenting Cases

Contempt of Court in New Hampshire Divorce and Parenting Cases

Petitions or Motions for Contempt are frequently sought by one party in divorce and parenting cases.  Usually, the motion for contempt is for failing to pay child support or alimony.

New Hampshire divorce attorneys are accustomed to filing and defending motions for contempt in divorce and parenting cases.”

Often, the motion for contempt is for failing to follow the final parenting plan.  While experienced New Hampshire domestic relations attorneys and divorce lawyers are skilled at addressing motions for contempt, self represented parties often don’t understand what constitutes contempt and how to pursue contempt in New Hampshire family division courts.

What is Contempt in NH Divorce and Parenting Cases?

Contempt means a violation of a court order by one party.  The court order being violated is often a final decree of divorce or final parenting plan.  Not every violation of a final decree of divorce or final parenting plan constitutes contempt.  A violation of a court order becomes contempt when one party acts knowingly and willfully.  Knowingly means the party knew his or her actions would result in a violation of the final divorce decree, final parenting plan, etc.  Willfully means the party intended to violate the court order in question and did not do so by mistake.

How Does a Party Prove Contempt of Court in NH Divorce and Parenting Cases?

If the divorce or parenting case is still pending, then a party files a Motion for Contempt with the family division court.  If the divorce or parenting cases is finished, the party files a Petition for Contempt.  In either case, the motion for contempt must explain what provision of the final divorce decree, final parenting plan, etc. was violated.  The motion for contempt must show by specific facts when and how the other party violated the court order.  The motion for contempt must then list what the party would like the family division court to do to address the contempt of court.  The party filing the motion for contempt must sign it under oath with the court where the divorce or parenting case is pending, or was previously pending.  The family division court will most likely schedule a thirty minute contempt hearing to consider the motion for contempt.

What Happens at a Contempt of Court Hearing in NH Divorce and Parenting Cases?

At the contempt of court hearing, the party who filed the petition or motion for contempt speaks first.  S/he tells the family division judge what provision of the final divorce decree or final parenting plan s/he believes the other party has violated.  The party then tells the family division judge how the other party violated the court order and when the violation occurred. Finally, the party tells the family division judge what s/he would like the court to do to address the other party’s contempt.  The party can bring witnesses or documents to support his/her petition or motion for contempt.

The other party is then allowed to explain to the family division judge his/her side of the story.  The other party tells the family division judge either why his/her actions are not a violation of the final divorce decree or final parenting plan; or, if a violation has occurred, why the violation is not contempt.  For example, at contempt hearings involving failure to pay child support, it is common for the person obligated to pay child support to assert his/her present inability to pay and present a financial affidavit that supports this assertion.  Witnesses and/or documents may help the party explain why s/he is not in contempt of court.

After the other party is finished speaking, the family division judge will allow the party filing the petition or motion for contempt to respond to the other party’s explanation.  Thereafter, the court will tell the parties that it will issue a written order and it will conclude the hearing.

What Happens If You’re Found in Contempt of Court in a New Hampshire Divorce or Parenting Case?

The parties usually receive the family division court’s written order several weeks after they attend the contempt hearing.  In the contempt order, the family division court explains why the other party is, or is not, in contempt of the final divorce decree, final parenting plan, etc.  If the other party is found in contempt of court, the order will explain what s/he must do in order to no longer be in contempt of court.  The family division court usually sets a deadline by which the other party must end the contempt, and describes the consequences if the other party continues to be in contempt of court.

It is important to remember that the family division court is not obligated to find the other party in contempt of court.  Rather, it has the discretion to find him/her in contempt of court, or not find him/her in contempt of court.  Either party may file a motion for reconsideration with the family division court within ten days after receiving the court’s written contempt order.  In a motion for reconsideration, the party must show that the family division court overlooked or misapprehended a point of law or fact and therefore should have ruled differently.  Further, either party has thirty days after receiving the written contempt order (or after the family division court rules on motions for reconsideration filed by either party) to appeal it to the New Hampshire Supreme Court.  The New Hampshire Supreme Court may, or may not, decide to accept the appeal.  The appeals process is outside the scope of this blog post.

Contact Us if You are Dealing with a Petition or Motion for Contempt in a NH Divorce or Parenting Case

We are experienced and aggressive domestic relations attorneys in Portsmouth and Dover New Hampshire who routinely handle contempt issues in NH divorce and parenting cases.  We can help you in your contempt case.  Contact us and learn why many of our clients consider us to be among the best New Hampshire lawyers who deal with contempt in divorce and parenting cases.

 

 

 

 

 

 

 

Posted in Family Law, Law Blog

Emergency and Ex Parte Relief in NH Divorce and Parenting Actions

Divorce attorneys and family law lawyers in Portsmouth and Dover, New Hampshire frequently handle emergency and ex parte motions in NH divorce and parenting actions.  Emergency and ex parte motions are often denied by New Hampshire family division courts because the moving party does not understand the applicable law or procedural requirements which govern these motions.  This blog post will attempt to clarify this commonly misunderstood area of NH domestic relations law.

“Failing to notify the other party of an emergency or ex parte filing is a major reason why so many of these motions are denied.”

Emergency and Ex Parte Relief in New Hampshire Divorce and Parenting Actions – The Legal Standard

 

Emergency and ex parte relief in New Hampshire divorce and parenting cases is governed by New Hampshire statutes (RSA 458:16 and RSA 461-A:9) and a corresponding court rule (NH Family Division Rule 2.9).

The party filing a motion for emergency or ex parte relief must show that immediate and irreparable harm will be done to a party, the children or the marital estate (in divorce actions) before the other party can be heard on the issue.  Notice by the moving party of the intent to file an emergency or ex parte motion usually must be given to the other party or his/her attorney in enough time to allow him/her to object to the motion.

What does “immediate and irreparable harm” mean in a New Hampshire Emergency or Ex Parte Motion?

NH divorce lawyers and New Hampshire divorce attorneys know that “immediate and irreparable harm” has a very specific meaning in divorce and parenting cases.

“Immediate” harm is one that will happen now, very soon, or before the family division court can hold a hearing on the issue.  An example of an immediate harm would be when one party has a substance abuse problem and is exercising his/her parenting time with under the influence of alcohol, opioids, narcotics, etc.  The party under the influence represents an immediate harm to the child because s/he cannot safely parent him/her – his/her judgment is impaired and s/he therefore will fail to appreciate the risks and hazards presented to the child by a given situation.

“Irreparable” harm is one that is permanent and cannot be fixed.  The example given the previous paragraph is a good example of an “irreparable” harm because the child is very likely to be permanently harmed, either intentionally or unintentionally, while in the care of the impaired parent.  Another example of an irreparable harm is the threatened destruction of a valuable marital asset by one party.

Do I have to give the other party notice of my emergency or ex parte motion in a NH divorce or parenting action?

Yes, absent extenuating circumstances.  Notice to the other party is an essential element in emergency or ex parte motions in NH divorce and parenting actions.  The party filing the motion must tell the other party of his/her intent to file the motion in time for the other party to go to the family division court and object to the proposed emergency or ex parte relief.  In fact, the moving party must state in the motion what efforts s/he made to notify the other party of his/her emergency or ex parte filing.  This requirement can be satisfied by the moving party either orally or in writing, so long as the notice is given with enough lead time to allow the other party to appear at court and contest the motion.

Failing to notify the other party of an emergency or ex parte filing is a major reason why so many of these motions are denied.  Courts understand that it is fundamentally unfair, absent truly extenuating circumstances, to grant one party relief without hearing from the other party.  The presence of the other party is important to the family division court because the truth of the allegations in the emergency or ex parte motion are best measured by hearing contrary testimony from the other party.

Will the NH family division court hold a hearing the same day an emergency or ex parte motion is filed in a NH divorce or parenting action?

It depends on how busy the family division court is when the emergency or ex parte motion is filed.  If the family division court’s docket is full, the court will typically issue a written order granting or denying the emergency or ex parte relief sought and scheduling the matter for a hearing within thirty days.  Docket permitting, the court will hold a hearing on the day the motion is filed, listen to the testimony of the parties, and issue an order.

What happens if my motion for emergency or ex parte relief is granted?

If the family division court grants your motion for emergency or ex parte relief, the court will require you to have the order, and likely a Notice of Hearing listing the date on which a hearing will be held, served on the other party by sheriff.  The court will instruct you on how to effect service by the sheriff.  By rule, the court must hold a hearing within five days after the other party files a written request for a hearing.

What happens if my motion for emergency or ex parte relief is denied?

If the family division denies your motion for emergency or ex parte relief, the court will likewise require you to have the order, and likely a Notice of Hearing listing the date on which a hearing will be held, served on the other party by sheriff.  The court will instruct you on how to effect service by the sheriff.  At the hearing, you will have an opportunity to explain why the relief requested in the motion should be granted. The other party will similarly explain why the motion should be denied.

Do I Need a NH Family Law Attorney When Filing or Opposing an Emergency or Ex Parte Motion in a NH Divorce or Parenting Action?

Aggressive NH family law attorneys and divorce lawyers often are able to convince a family division court at an ex parte hearing to vacate an emergency or ex parte motion previously granted, or, conversely, grant an emergency or ex parte motion previously denied.  This is because they have participated in countless ex parte hearings before yours and will participate is still more once your case is concluded.  There simply is no substitute for an experienced New Hampshire domestic relations attorney when you are dealing with an emergency or ex parte motion in a New Hampshire divorce or parenting case.

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Respected divorce attorneys in Portsmouth and Dover, New Hampshire.  We can help you successfully navigate the complexities of emergency and ex parte motions in New Hampshire divorce and parenting cases.  Read our client testimonials and learn why many of our clients consider us to be the best divorce attorneys in Portsmouth and Dover, New Hampshire.

 

 

Posted in Family Law, Law Blog

Parenting Plan Attorney in NH – NH Parenting Plans and Substance Abuse

A New Hampshire Divorce Attorney’s Perspective on New Hampshire’s Opioid Epidemic

Experienced divorce attorneys and family law lawyers in Portsmouth, Dover and Seacoast New Hampshire are increasingly dealing with drafting NH parentings plans where one parent is struggling with a substance abuse issue – addiction to opioids, opiates, alcohol and other illegal substances.  Whether in a New Hampshire divorce, or NH parenting action, the parent with the substance abuse problem is usually slow to recognize the extent of his/her addiction and its effect on the children.  The substance abuser is often too impaired to make good decisions for the children and inadvertently puts them in unsafe situations  The other parent in the New Hampshire divorce or NH parenting action is often confused, scared and usually unsure about what to do.

“When a parent reaches out to me, I often offer several suggestions with regard to the New Hampshire Parenting Plan.”

Opioid Abuse Need Not Permanently End NH Parenting Rights

Chronic abuse of opioids, opiates, alcohol, cocaine, or marijuana are classified as a disorder  It is not caused by a parent’s failure of willpower or a moral defect.  New Hampshire family division courts recognize that substance abusers who successfully address their addictions are capable co-parents who are entitled to equal parenting rights vis a vis the other parent.

Opioid Abusers Must Demonstrate Their Sobriety in Order to Exercise Their Parenting Rights

However, NH family division courts also recognize that untreated substance abusers pose a safety risk to their child(ren), no matter how much they love them.  It is therefore common for NH family division courts to restrict the parental rights and responsibilities of a substance abusing parent unless and until s/he can demonstrate via objective evidence that s/he has addressed his/her addiction.

Temporary Restrictions on Legal Decision-Making and Legal Custody for Opioid Abusing Parentings

With regard to legal decision-making, or legal custody, it is common for the family division court to temporarily award sole legal decision-making, or sole legal custody, to the parent who does not have the substance abuse problem.  Consequently, it makes sense for parties, if possible, to include a similar provision in their NH parenting plan.  The parenting plan should list the conditions under which the impaired parent can regain joint legal decision-making or joint legal custody over the parties’ child(ren).

Residential Responsibility and Physical Custody in Parenting Plans Involving Opioid Abusing Parents

With regard to residential responsibility, or physical custody, it is common for family division courts to require the substance abuser’s parenting time be supervised or that parenting time be at the discretion of the non-abusing parent. Including a provision such as this in a New Hampshire parenting plan is reasonable in cases of substance abuse, so long as objective standards delineate how the substance abuser can regain parenting time with his/her child(ren).

Objective Standards in New Hampshire Parenting Plans for Assessing and Achieving Sobriety

Examples of objective standards used in parenting plans for assessing the substance abuser’s ability to co-parent include: evaluation and treatment by a licensed alcohol and drug counselor, in-patient or out-patient treatment, random alcohol or drug testing at a licensed facility, regular attendance at twelve-step meetings, supervision of parenting time, and incremental parenting incentives for continued abstinence.  These safeguards are typically phased out as recovery progresses, but may be re-instituted in the event of a relapse.

Emergency and Ex Parte Relief When One Parent is Abusing Opioids

Often times, a parenting plan in New Hampshire does not address addiction because it was filed and approved by the family division court years ago.  In this circumstance, it is not uncommon for a parent to file a motion for ex parte relief, coupled with a petition to modify the parenting plan, in order to prevent immediate and irreparable harm to the child(ren) by the substance abuser.  While litigation is never the preferred route, it is often the only necessary means to keep the child(ren) safe.

New Hampshire Child Custody and Family Law Lawyers Who Represent Parents in Divorce and Parenting Cases Involving Opioid Abuse

The T.W. Stevens Law Firm has offices in Portsmouth and Dover, New Hampshire.  The child custody lawyers at the T.W. Stevens Law Firm have experience representing substance abusing and non-substance abusing parents in New Hampshire divorce and parenting actions.  Contact us today.

 

Posted in Family Law, Law Blog

NH Divorce Attorneys: Inheritances, Gifts, and Pre-Marital Property in NH Divorce Cases

Portsmouth New Hampshire divorce attorneys and NH family law lawyers are often asked by clients involved in NH divorce cases about how property is divided between the parties.  While the answers are inherently case specific, some questions are common to many New Hampshire divorce cases in which experienced NH divorce lawyers and New Hampshire divorce attorneys are involved.  Read on.

Is my inheritance included in my New Hampshire divorce property settlement?

Yes.

“All property, whether owned individually or jointly, is considered marital property and subject to division by the New Hampshire family division court.”

A New Hampshire statute, RSA 458:16-a, governs what is considered marital property in New Hampshire divorce cases and how that property is divided.   All property, whether owned individually or jointly, is considered marital property and subject to division by the New Hampshire family division court.  The NH family division court is statutorily bound to presume that an equal division of property is an equitable division.  Consequently, one party’s inheritance is presumed to divided equally with the other party in New Hampshire divorce cases.  

However, a New Hampshire family division court has the discretion in NH divorce cases to find that an inheritance, while considered marital property, may be kept by the party who originally received it.  That is, if the NH family division court finds that an equal division of the parties’ marital property is not appropriate or equitable, it may award a disproportionate share of the inheritance, or all of the inheritance, to the party who originally received it.

Are monetary gifts given to me by my family included in my New Hampshire divorce property settlement? 

Yes.  Monetary gifts or valuable items of personal property are treated in much the same way as inheritances in New Hampshire divorce cases.  While each case is factually specific, some New Hampshire family division courts considered the extent to which the monetary gifts were co-mingled with other marital assets and/or used by the spouses in their day to day affairs.  Monetary gifts that have been kept in separately accounts and not accessed for marital expenses are more likely to be awarded to the party who originally received them.

Is property I acquired before the marriage included in my NH divorce property settlement?

Yes.  Pre-marital property is included in the marital estate in New Hampshire and is subject to the statutory presumption of a 50/50 division. However, the same analysis that applies to inheritances and monetary gifts also applies to pre-marital property. That is, the New Hampshire property division statute allows a New Hampshire family division judge to consider “the value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage” if it determines that an equal property division is not appropriate or equitable.

Contact us – divorce attorneys in Portsmouth, NH and Dover, NH – with questions about property division in New Hampshire divorce cases.

Posted in Law Blog

The Benefits of Mediation during Divorce

Simply put: divorce is not a good time. Many divorce cases I see are quite contentious, so much so that it’s hard for both parties to make rational decisions regarding their divorce.

When I meet with a client seeking representation in a divorce, the first question I ask is, “Have you attended mediation yet?” Mediation is often the most successful tool for resolving issues and keeping you in control of your divorce. Allow me to explain why….

What is mediation?

Mediation is an informal process where parties meet with a neutral third person (the “mediator”) in a private, confidential setting to discuss and resolve disputes regarding the divorce (i.e. custody matters, child support, financial and property divisions, etc.). Unlike a judge, the mediator does not make decisions regarding your case, nor will they decide who is right or wrong. The main purpose of a mediator is encourage problem-solving, understanding and support for both parties so they can successfully reach an agreement outside the courtroom.

Why should I consider mediation?

Dealing with domestic issues during a divorce is very painful. Emotions run high and it can be almost impossible to find common ground without assistance. Mediation is a way to offer both parties an opportunity to work through their differences with a professional who is trained to help couples stay focused, be open-minded and plan for a mutually acceptable conclusion. Wouldn’t you rather decide your children’s future by working with their parent rather than leave it to a judge who doesn’t know you and doesn’t know your children?

Parties who mediate their own divorce settlements have more control over the outcome of their dispute.

Does mediation replace my need for an attorney?

Not necessarily. Think about it this way: a mediator’s role is to assist both parties to reach agreeable conclusions in regards to the future. An attorney’s role is to help you navigate through the legal jungle of petitions, parental rights, court proceedings and more. Contracting both a mediator and an attorney will help you feel better informed and better prepared.

Am I required to go to mediation?

Mediation is mandatory in divorce and parenting cases involving children, with some notable exceptions. Mediation is voluntary in divorce cases without children. Mediation has proven to be far more successful resolving differences than in a heated courtroom. Courts don’t prefer to mandate rulings, particularly around those dealing with custody issues. It’s best to attempt a settlement that works for both parties rather than dealing with the stress and uncertainty of a judge’s decision.

In certain cases, mediation is not appropriate, nor will the court mandate it, if particular circumstances are present including, but not limited to, abuse or neglect of a minor child, undue hardship on one of the parties, a finding of alcoholism or drug abuse or allegations of serious psychological or emotional abuse.

What can a mediator share with the court?

Mediators are not directly involved with divorce court proceedings. Everything said or expressed during a mediation session is privileged and cannot be shared with the court.

Mediation is generally less expensive than ongoing divorce litigation.

What if we can’t reach any resolutions during mediation?

If parties are unable to resolve a dispute involving a particular topic, the mediator will notify the court and the court will schedule the case for a hearing on the disputed issues.

Who pays for mediation?

Both parties are usually responsible for their one-half share of the mediation fees. However, state funds are available if a party lacks the financial resources to participate in mediation.

How do I find a mediator?

Our firm works with many NH Seacoast area mediators who are certified by the NH Family Mediator Certification Board. Please contact our office and we’ll be happy to share our recommendations.

Contact the T.W. Stevens Law Firm

We are experienced and aggressive divorce lawyers in Portsmouth, NH and Dover, NH. We can help you arrange mediation and finalize proceedings in your case.

Posted in Law Blog

Understanding Alimony Awards in New Hampshire

As a divorce attorney, alimony is something I get asked about often. Many times, one spouse has given up a career to stay home and raise the family’s children. Following a divorce, the stay-at-home spouse now finds his or herself concerned and frightened on how to maintain financial support for themselves. Alimony awards can be imperative in these situations.

What is alimony?

Alimony, otherwise known as spousal support, is financial compensation paid by one spouse to the other following a divorce or annulment. Alimony is different and completely separate from child support. The court will decide whether alimony support is awarded to you by starting with these three considerations:

  1. You lack sufficient income to reasonably provide for your needs outside of the marriage;
  2. Your spouse is financially able to support both of your needs without sacrificing his/her standard style of living;
  3. You are unable to financially support yourself through appropriate employment and/or are unable to seek employment outside the home (i.e. special responsibilities, care of children).

Alimony FYI: Although we are plenty used to hearing that alimony is awarded to the wife, alimony is not gender biased. Both men and women can be awarded alimony.

How much alimony am I entitled to?

New Hampshire law doesn’t employ a simple calculation to establish the amount and duration of spousal support. In determining the amount of alimony awarded to you, the court will take into consideration the following:

  • Length of the marriage;
  • Personal health and age of each party;
  • Occupation, sources of income and amount of compensation;
  • Economic and non-economic contributions to the family;
  • Needs of each parties;
  • Future opportunities for capital assets or income.

In special circumstances, the New Hampshire courts may recognize, and award accordingly, for “fault-based” factors that directly contributed to the reasons for the divorce (i.e. adultery, extreme cruelty, substance abuse). The court may conclude that the economic, emotional or physical harm caused by the offending spouse justifies a larger alimony settlement based on the inability for the other spouse to become independently self-supporting.

Factors that cannot be taken into consideration include a minor child’s social security benefit or, if you were to get married again, your subsequent spouse’s income or property (unless there are provisions in the order agreed to by both parties).

Alimony FYI: Alimony is tax deductible by the paying spouse and is reportable as income by the receiving spouse.

How long can I receive alimony?

Alimony’s primary purpose is to allow the recipient financial support over a period of time so that he/she can become self-supporting by securing an independent source of income. Again, there is no set standard duration of alimony support and each case is handled separately by the courts.

Although most cases result in the order for short-term alimony (anywhere from one to five years), permanent alimony is appropriate in cases such as physical or mental illness, caring for a dependent child or limited earning capacity. Cases for permanent alimony, however, are very rarely awarded in New Hampshire.

Can alimony payment amounts change over time or be terminated?

Either spouse, at any time, can ask to modify the alimony order when situational changes occur. For example, if one spouse’s income significantly increases or decreases making current alimony payments unfair to the other party. Conversely, voluntarily quitting one’s job or being underemployed will not satisfy the court as a reason to avoid or underpay alimony. The judge may decide to impute income and require the spouse to pay based on earning potential rather than current income.

Alimony FYI: New Hampshire law allows either party to seek alimony for up to five years post the final divorce decree.

I see many clients who obtain legal counsel for their divorce, but then never return for help when they are asked to renegotiate and modify the amount of alimony payments or terminate payments altogether. This is a dangerous move to make as you may be forfeiting your right to your awarded financial security. In the long run, it’s worth the cost of an hour or two of advice from professional legal counsel to ensure you’re not tossing away thousands of dollars of entitled compensation.

Contact the T.W. Stevens Law Firm

We are experienced and aggressive divorce lawyers in Portsmouth, NH and Dover, NH. We can help you avoid the alimony pitfalls in your New Hampshire divorce.

Posted in Law Blog

Lindsey Donohue, Esquire joins T.W. Stevens Law Firm

MalloryParkingtonPhoto-EditWe are pleased to announce that Lindsey B. Donohue has joined the firm as an associate.  Attorney Donohue is admitted to practice in New Hampshire and Massachusetts and works out of the firm’s Dover and Portsmouth offices.  Attorney Donohue represents clients in the following types of cases:  family law, divorce, child custody, child support, parenting issues, adoption and probate litigation.  She is a member of the Family Law Section of the New Hampshire Bar Association.

Attorney Donohue has a strong academic background.  She graduated Magna Cum Laude from Quinnipiac School of Law with a concentration in family and juvenile law.  She was Supervising Editor of the Health Law Journal, President of the Family and Juvenile Law Society and received numerous awards including Outstanding Legal Scholarship, Excellence in Clinical Work, and Superior Classroom Performance.  She was Vice President of Internal Competitions for the Society of Dispute Resolution’s Competition Team.   Attorney Donohue received her Bachelor of Science from William Smith College with a double major in Biology and Psychology. She was the recipient of the Spitzer Family Scholarship and appeared on the Dean’s List.

Attorney Donohue’s academic accomplishments are complimented by a trait lawyers are not always known for – common sense. Attorney Donohue listens to her clients and counsels them on realistic and achievable objectives in their particular legal matter. She seeks to resolve legal disputes informally, but recognizes when litigation is required.  In litigated cases, she is a thoughtful and articulate advocate who has achieved favorable results in state courts throughout New Hampshire.

Contact Attorney Donohue today and learn why she is rapidly earning a reputation as a go-to resource for people involved in family law, divorce, child custody, child support and parenting cases.

 

 

 

 

Posted in Law Blog

Contact

Dover Office

T.W. Stevens Law Firm, pllc
340 Central Avenue, Suite 203
Dover, NH 03820

Ph: (603) 749-6400
Fax: (603) 749-6401

Portsmouth Office

T.W. Stevens Law Firm, PLLC
101 Market Street
Portsmouth, NH 03801

Phone: (603) 749-6400
Fax: (603) 749-6401

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