Legal Decision-making in NH Parenting Plans

Legal Decision-making in NH Parenting Plans – Joint or Sole?

Parenting Plans in New Hampshire are required in all NH divorce and parenting actions.  Experienced New Hampshire family law and divorce attorneys frequently draft NH Parenting Plans for clients, often as part of NH unbundled legal services.  An important aspect of NH parenting plans is legal decision-making for the parties’ minor children.

“In New Hampshire there is a legal presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interests of minor children.”

Parties in NH divorce and parenting actions usually don’t know what legal decision-making means.  Legal decision-making means the right of one, or both, of the parties to make major decisions regarding all aspects of their children’s welfare.  Matters pertaining to their children’s welfare include education, religious upbringing, medical, dental and mental health care, safety, travel arrangements, and child care arrangements.

In NH parenting plans, the parties are required to choose between joint decision-making for the parties’ children, or sole decision-making for the parties’ children.

Joint Decision-making in New Hampshire Parenting Plans

Joint decision-making is the “default” rule for NH parenting plans in divorce and parenting cases.  That is, in New Hampshire there is a legal presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interests of minor children. 

Joint Decision-making in NH parenting plans is where both parties are co-equals in making important decisions regarding their children.  The parties work together to make mutual decisions in the best interests of their minor children.  They are expected to communicate ahead of time any important appointments, events, etc. so that the other party has a chance to attend and participate.

In NH parenting plans with joint decision-making, each party essentially has a veto over decisions the other party wants to make for the children.  For example, one party may want the remove the children from a public school and enroll them in a private religious school.  If the other party disagrees, the children must remain the public school unless and until the parties can reach a compromise.

Joint decision-making is either ordered by the NH family division court after a final hearing, or agreed-upon by the parties.

Sole Decision-making in New Hampshire Parenting Plans

By contrast, sole decision-making in NH parenting plans, in which one party has no legal right to participate in major decisions regarding his/her children’s welfare, is not favored by NH family division courts.  Sole decision-making is somewhat rare in New Hampshire parenting plans because both parents are usually competent to make decisions for their children.

However, there are circumstances where sole decision-making by one parent is in the children’s best interests.  While each New Hampshire divorce and parenting case is different, certain fact-patterns are common in sole decision-making cases.  Physical or mental abuse of the children by one parent can result in sole decision-making.  One parent’s untreated mental illness or intellectual deficiency may be grounds for sole decision-making.  Substance abuse by one parent – to the extent it regularly impairs his/her ability to make sound decisions for the children – is oftentimes a reason for sole decision-making.

Legal Decision-making in NH Parenting Plans – Practical Considerations

From a practical standpoint, it is rare for one party to voluntarily relinquish his/her right to make decisions for the parties’ children.  Usually, it occurs by court order after a hearing in which both parents present evidence to the New Hampshire family court to support their respective positions.

It is an understandable impulse to seek sole decision-making in NH divorce and parenting cases.  One party usually considers himself or herself to be the primary caregiver for the children and questions the other party’s ability to fulfill those responsibilities, especially when s/he has little past experience doing so. While the court certainly may take into account the historic parenting roles of the parties, inexperience or distrust, without more, is unlikely to result in a award of sole decision-making.

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Posted in Law Blog

Adultery in NH Divorce Cases

NH divorce lawyers regularly see adultery cases in which one spouse claims the other committed adultery, cheated, was unfaithful, had an extramarital affair, etc.   This spouse often blames the adultery or infidelity for the breakdown of the marriage and seeks vindication through the New Hampshire divorce process.

“The party alleging adultery must specifically prove that his/her spouse had “voluntary sexual intercourse” with someone other than his/her spouse.”

Legal Definition of Adultery in New Hampshire Divorce Cases

Adultery is a fault ground for divorce in New Hampshire.  Adultery is defined as voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband.  The person with whom the husband/wife is alleged to have had an extramarital affair is added to the New Hampshire divorce action, if their identity is known, as a co-respondent.

How Adultery is Proved in New Hampshire Divorce Cases

The party alleging adultery must specifically prove that his/her spouse had “voluntary sexual intercourse” with someone other than his/her spouse.  Rumors, innuendo, and circumstantial evidence are often insufficient to prove that voluntary sexual intercourse occurred.  Further, because adultery is still a crime in New Hampshire (as of the writing of this blog post), the party accused of adultery, as well as his/her alleged paramour, can exercise their fifth amendment privilege against self-incrimination and refuse to provide evidence of any infidelity.  The New Hampshire Supreme Court has previously held that sexual relations between homosexuals does not constitute adultery.

What Happens if the Court Finds Adultery Caused the Breakdown of the Marriage?

If the New Hampshire family court finds that adultery caused the irremediable breakdown of the marriage, and further finds that the adultery caused substantial physical or mental pain and suffering; or resulted in substantial economic loss to the marital estate or the injured party, it can take adultery into account in dividing marital property and determining the amount of alimony.

Adultery and Parental Rights and Responsibilities

A finding of adultery had no effect on either party’s parental rights and responsibilities unless the circumstances of the adultery are shown to not be in the best interests of the minor children.  A common example occurs when the party committing adultery subsequently enters a relationship with a person abusing alcohol or drugs, or who has a history of domestic violence or criminal activity.

NH Adultery – Pros and Cons

That adultery is emotionally painful goes without saying.  It’s normal to seek to punish the unfaithful spouse for his/her actions and “expose” their infidelity in a court proceeding.

Pros of a pursuing an Adultery case

There are good reasons to file a divorce petition based upon adultery.

“Sometimes a spouse’s adultery did, in fact, cause substantial economic loss to the marital estate.  Extravagant gifts and trips to exotic locales drained the marital estate of tens of thousands of dollars.”

First, there are instances where adultery indisputably caused an otherwise healthy marriage to fail.  Such situations include situations where on spouse was habitually unfaithful to the other spouse.  Such individuals are sometimes labeled “sex addicts” although whether or not this is a true addiction is subject to debate.

Second, there are also instances where adultery genuinely caused substantial mental pain and suffering.  In these cases, one spouse credibly claims, and medical evidence proves, that the adultery caused the spouse to suffer from anxiety, depression, mood disorders, substance abuse or other problems.

Third, sometimes a spouse’s infidelity did, in fact, cause substantial economic loss to the marital estate.  Extravagant gifts and trips to exotic locales drained the marital estate of tens of thousands of dollars.

Fourth, all of the world’s major religions condemn adultery.  Practitioners of those religions feel strongly that a party who commits adultery should answer for it in court.

Cons of pursuing an Adultery case

However, there are very good reasons to avoid filing a divorce petition based on adultery.

First, fault-based divorces are costly.  The unfaithful spouse seldom, if ever, admits that the adultery caused the marriage to fail.  As a result, the New Hampshire family court must find, usually after a lengthy final hearing, that adultery occurred.  That usually means thousands, or tens of thousands, paid to lawyers in legal fees.

“An allegation of adultery is positively poisonous to ongoing efforts by the parties to co-parent their children.  The level of acrimony between the parties in a fault-based divorce is the stuff of legend.”

Second, adultery can be hard to prove.  Neither party to the extramarital relationship will testify on this topic, thereby depriving the accuser of direct evidence. The accused oftentimes will assert the infidelity was a symptom of a marriage that had already failed and testify about very personal aspects of the marriage to demonstrate this to the court.

Third, an allegation of adultery is positively poisonous to ongoing efforts by the parties to co-parent their children.  The level of acrimony between the parties in a fault-based divorce is the stuff of legend.

Fourth, adultery allegations are generally not well-received by New Hampshire family courts.  In divorce cases, the court is typically far more concerned with the welfare of the children, an equitable property distribution, and the correct amount of alimony and child support.

Finally, a finding of adultery typically changes little in terms of the actual divorce itself.  Rare is the case where one party can prove the adultery caused substantial pain or economic loss.  As a result, the adultery does not affect the property division or alimony aspects of the case.  The only lasting legacy of a fault finding is often bitterness and residual anger years after the divorce is over.

Contact the T.W. Stevens Law Firm if You are Considering Filing a Divorce Petition based upon Adultery

We offer a free one-half hour consultation at which we will discuss how adultery fits into your divorce.  Our offices are conveniently located in Portsmouth and Dover, New Hampshire. We offer unbundled legal services in New Hampshire divorce and parenting cases.  View our client testimonials!

 

 

 

 

Posted in Law Blog

Unbundled New Hampshire Divorce Attorneys

NH divorce attorneys, especially those who are experienced and aggressive, are often deemed too expensive by people with family law issues.  They reason that hiring a New Hampshire family law attorney is an all-or-nothing proposition that requires thousands of dollars in up-front retainer.  They are wrong.

“Unbundled legal representation therefore allows virtually anyone to access an experienced New Hampshire family law attorney at a fraction of the cost of full representation.”

New Hampshire divorce attorneys and NH divorce lawyers increasingly represent parties in NH divorce and parenting cases on a limited, or unbundled, basis. That is, the New Hampshire family law lawyer only performs certain tasks for a party and does not represent him/her for the entirely of his/her case.

Unbundled legal representation therefore allows virtually anyone to access an experienced New Hampshire family law attorney at a fraction of the cost of full representation. Unbundled divorce attorneys in NH divorce and parenting cases often undertake the tasks discussed below for clients.

Unbundled NH Divorce Attorneys Provide General Guidance on NH Divorce Law and Procedures

For many people, divorce is their first interaction with the New Hampshire court system.  Not surprisingly, they do not know what to file, where to file, what happens after they file, and how the law applies to their case.  The sheer amount of uncertainty causes many people significant stress and anxiety.

That’s where an unbundled NH divorce attorney can help.  An unbundled New Hampshire divorce attorney can explain how divorce works in the New Hampshire court system.  S/he can also explain what New Hampshire laws apply to your case and how a New Hampshire family court may interpret the law in your case.  For example, an unbundled NH divorce attorney frequently explains how child support works, and can calculate how much child support should be paid in your case.

For many people, simply sitting with a NH family law attorney and becoming familiar with the New Hampshire court system is enough.

Unbundled NH Family Law Lawyers Help Clients Draft Legal Documents

Another common task undertaken by unbundled family law lawyers in New Hampshire is drafting legal documents.  Many couples who are ready to divorce already have agreed upon the important issues – alimony, child support, property division, health insurance, etc.  They just need an unbundled NH family law attorney to draft up their agreement in a form the New Hampshire family court will accept.

Another task NH unbundled divorce attorneys undertake in New Hampshire is drafting petitions and motions.  Oftentimes, individuals know what they want, but don’t know how to say it.  For example, many people want to increase or decrease their monthly child support payments. Their reasons are often valid – a change in employment, earnings, etc.  An unbundled attorney can help them translate their reasons into a motion or petition.  Other times, people want to modify aspects of their Final Parenting Plan, Final Parenting Decree, or Final Decree on Petition for Divorce.  An unbundled lawyer can draft the appropriate pleading for the party to use in court.

Unbundled NH Parenting Attorneys Appear at Court Hearings for Clients

People with previous experience in the family court system are often comfortable with their perceived knowledge of the law and their ability to express themselves in appropriate petitions or motions.  For these individuals, the stumbling block is the court hearing itself.  Advocating for yourself at hearing is difficult – where to start, what to say, what NOT to say,  what documents to bring, how to offer those documents to the court, etc.  The strong suit of most experienced unbundled family law attorneys is oral advocacy and they excel at court hearings.

The T.W. Stevens Law Firm Represents Unbundled Clients in NH Divorce, Parenting, and Modification Cases

Contact our Portsmouth or Dover New Hampshire offices for help.

Posted in Law Blog

Tips for a Successful Divorce in New Hampshire

As a married person, and a New Hampshire divorce attorney, I’m fascinated to learn about the tips for a successful marriage.  One need only do a quick Google search to confirm millions share my fascination – articles, videos, seminars, and essays abound on the subject.  Everyone seemingly has an opinion they want to share.

“What surprises me is how little interest there is in tips for a successful divorce.”

What surprises me, given that fully one-half of all marriages fail, is how little interest there is in tips for a successful divorce.  Specifically, the best ways to keep your sanity, your relationship with your children, and your financial well-being through a divorce.  As a NH family law attorney, this is especially surprising to me because I have found that the average person knows so little about the New Hampshire divorce process and the powerful dynamics at work in almost every divorce.  Time and again, I see divorcing couples inadvertently using these dynamics to make their New Hampshire divorces more stressful, more acrimonious, and more costly.

While every divorce is different, there a several behaviors common to couples who have a “successfully” navigated the NH divorce process.  I define success as the parties experiencing as little psychological, emotional and financial pain as possible.  That there will be good deal in is perhaps inevitable.  But the behaviors discussed below stop a contentious divorce from becoming a needlessly acrimonious one.

Don’t Add Fuel to the Fire

It’s often said that negative emotions – sadness, fear, anger, anxiety, etc. – are the fuel for acrimonious divorces. Why? Because very few people make rational decisions in highly emotional states.   Think about the actions and decisions you regret most in your life.  Many involved emotion overcoming your better judgment.

The NH divorce process is like one long, highly emotional roller-coaster.  Its peaks and troughs present you with many, many opportunities to let pride, revenge, rage, depression, and a whole host of other negative emotions drive the bus -typically right into oncoming traffic.  In times past, divorcing spouses were better equipped to manage these emotions because they could talk to someone in their support system –  a close friends, family member, a minister/priest/rabbi, etc.  Nowadays, support systems are rare – a casualty of our transient society.

But your emotions still need an outlet.  In the absence of a support system, a therapist is often the only practical outlet for you to vent the powerful emotions you are feeling.  By dissipating these emotions on the therapist’s couch, you avoid discussing them on the witness stand.  I think that’s a fair trade-off, even for those who are otherwise disinclined to engage in therapy.

Fast is Good

Divorce is not a place to dwell.  NH divorce attorneys are expensive, emotions are raw, and uncertainty is the rule, not the exception.  But you want to make sure any settlement meets your personal and financial objectives.  Your spouse seems to be standing in the way of those objectives, perhaps in way you think is unreasonable.  What to do?

Try this.  Peer into your future and imagine where you want yourself and your family to be in ten years.  Your spouse will be long-gone, and so will the intense emotions you are feeling about him/her right now.  In fact, you will likely be ambivalent towards him/her.  Statistics show you are also likely to be remarried or in a new relationship.

Now, think about the area of disagreement.  Does the disagreement substantially affect your vision for yourself in ten years?  The answer probably is no.  If so, concede the issue to your spouse in return for him/her conceding on an issue that does affect where you will be in ten years.  That’s flexibility, and that’s what gets you through the divorce process much quicker.

Caveat: this approach obviously only works if both spouses have reasonable expectations regarding the divorce and are prepared to make meaningful concessions.  As often as not, one party won’t do so.

Contact the T.W. Stevens Law Firm

We are experienced New Hampshire divorce attorneys and divorce lawyers located in Dover and Portsmouth, New Hampshire.

 

 

 

 

 

Posted in Family Law, Law Blog

NH Divorce and Family Law: 3 Common Mistakes on Financial Affidavits

Todd Stevensby Todd W. Stevens, Esquire

Financial Affidavits in New Hampshire Divorce and Parenting Cases – Introduction

In all New Hampshire divorces and New Hampshire parenting actions, the parties are required by New Hampshire Circuit Court Family Division Rule 1.25-A to file a Financial Affidavit with the New Hampshire Family Division Court.  Per New Hampshire Circuit Court Family Division Rule 2.16, both parties are also required to file a NH Financial Affidavit with the Court prior to any hearing involving financial issues.

“Recognize that the New Hampshire Financial Affidavit is a crucial document in your New Hampshire divorce or parenting action.  As such, devote the amount of time necessary to completely and accurately fill it out. “

The NH Financial Affidavit is a form provided by the New Hampshire Family Division Court in NH Divorce and NH Parenting actions that requires you to list your monthly income, monthly expenses, assets, debts, health insurance, life insurance, retirement accounts,  and other financial information.  At the end of the New Hampshire Financial Affidavit, you take an oath before a New Hampshire notary pubic or justice of the peace that the information contained in your NH Financial Affidavit is true and correct to the best of your information and belief.  You then sign the NH Financial Affidavit, attached your last pay-stub, exchange it with the other side in your case, and file it with the New Hampshire Family Division Court, typically right before a hearing involving financial issues.

That’s when many people run into issues.  Why?  Because either or both of the parties did not: 1. understand the importance of the NH Financial Affidavit; and 2. take the time to fill out the NH Financial Affidavit completely and accurately.  The result is predictable – the New Hampshire Family Division Court, the other party, or his/her lawyer, quickly spot errors and discrepancies that frankly make you look like you’re hiding income, property or both.  Omitting income or property is a big deal because the New Hampshire Family Division Court uses the parties’ Financial Affidavits to calculate child support, alimony and divide marital assets, on either a temporary or permanent basis. It’s also very, very damaging to you because, no matter how inadvertent the omission was, you look like you were caught in a lie, under oath no less.  Not good.

Three common mistakes parties to NH divorces and New Hampshire parenting actions make on New Hampshire Financial Affidavits are listed and described below.

Monthly Income is Understated or Omitted on NH Financial Affidavit

Monthly income on a NH Financial Affidavit can be understated or miscalculated in a variety of ways.

Incorrectly calculating monthly income from bi-weekly or weekly paystubs

First, the NH Financial Affidavit asks for monthly income before taxes (gross income), not after taxes (net income).  The monthly income amount for the purposes of the NH Financial Affidavit is derived from a specific formula depending on how frequently you are paid.  If you are paid bi-weekly, you multiply your bi-weekly wage by 2.17, not 2, to arrive at your monthly wage.  If you are paid weekly, you multiply your weekly wage by 4.33, not 4, to arrive at your monthly wage.  Multiplying by 2.17 or 4.33 is a recognition of the fact that some months have fractionally more than four weeks.

Failing to multiply your bi-weekly or weekly wage by the correct number is perhaps the most common mistake parties make on their NH Financial Affidavits.  It understates your gross income for the purposes of New Hampshire child support and NH alimony.  Invariably, either the NH Family Division Court or the other party/attorney catches the error.  At best, you look careless; at worst, untruthful.

Omitting overtime pay from the NH Financial Affidavit

Another issue is omitting overtime pay.  Many people fail to report overtime pay on their NH Financial Affidavit because they did not receive any during the month they filled out the Financial Affidavit.  The problem is, the pay-stub they attached to their New Hampshire Financial Affidavit usually indicates how much overtime they have been paid to date.  The NH Family Division Court, or the other party, frequently catches this mistake.  The result is that overtime wages are averaged out over the number of months that have passed, and added to your gross income.  If you do not account for, or explain, how often you receive overtime on y

our NH Financial Affidavit, you look like you are hiding income from the other party and the Court.

Omitting commissions from the NH Financial Affidavit

A third issue is omitting commissions from the NH Financial Affidavit.  Like overtime, many people reason that they need only include actual commissions received during the month they filled out the NH Financial Affidavit.  Not coincidentally, the lack of commissions for that month is usually atypical – a fact quickly figured out by the New Hampshire Family Division Court and the other party from the pay-stub.  Moreover, the other party usually has a pretty good grasp on what is made in commissions, so attempts at omitting this information actually invites more scrutiny.

Finally, there is the issue of a party not disclosing income s/he received “under the table.”  This usually occurs where one party is self-employed or in a service industry where payment is frequently made with cash.  Many, many people receive income under the table.  They are rightfully very reluctant to disclose it on a NH Financial Affidavit for fear of being audited, or worse, by the Internal Revenue Service or State of New Hampshire.  The problem, however, is that these “under the table payments” are no secret to the other party.  They are often fully aware of this practice and ready to explain it to the NH Family Division Court.  Don’t compound the mistake of receiving income “under the table” by omitting it on your sworn financial affidavit.

Asset Value is Understated or Omitted from New Hampshire Financial Affidavit

The New Hampshire Financial Affidavit requires that you disclose all assets that have a substantial value.  The instructions that are attached to the NH Financial Affidavit explain what assets you should list.  Despite these instructions, many litigants take it upon themselves to decide which assets to disclose on a NH Financial Affidavit.  Whether they do so to hide these assets from the NH Family Division Court, or because they are simply confused, depends on the case. But it is worthwhile to debunk some common myths that I see as a New Hampshire divorce attorney time and time again.  Generally speaking, the following assets are marital property and must be disclosed on your New Hampshire Financial Affidavit.

  • personal property or real estate you received prior to, or during, the marriage
  • gifts or inheritances you received prior to, or during, the marriage
  • investments, stocks, bank accounts, retirement accounts, etc. titled only in your name
  • business interests (partnerships, LLC’s, closely-held corporations, etc.) in only your name
  • real estate you own jointly with other members of your family – brothers, sisters, etc.

The common denominator with all of these items?  Your gut tells you the other party is not entitled to “your” property.  Irrespective of your feelings, omitting them from your NH Financial Affidavit is almost always discovered and pointed out to the New Hampshire Family Division Court, severely damaging your credibility.  Worse yet, if the asset isn’t discovered until long after the divorce, the Court can award the entire asset to the other party.

Monthly Expenses are Greater Than Monthly Income

The NH Financial Affidavit devotes a full page to categorizing and calculating your monthly expenses.  Total monthly expenses are listed on the bottom right of the page.  Total onthly expenses can be quickly compared to monthly income on the first page of the Financial Affidavit.

Unless you are heavily relying on credit cards to get by, it is self evident that your monthly expenses cannot exceed your monthly income.  Yet many people submit Financial Affidavits in which their monthly expenses greatly exceed their monthly income.  For the Court, that begs an obvious question – what other sources of income does this person have in order to pay these expenses?  Upon inquiry, the Court or the other party frequently learns that a family member is supplementing the person’s income, but this income is not disclosed.  Other times, the source of income is not clear, but clearly exists.  Under these circumstances, Courts sometimes substitute the expense totals for the income totals and calculate New Hampshire child support or NH alimony based on this number.

The takeaway? Disclose all sources of income you are receiving on your NH Financial Affidavit.  Alternatively, check your expenses and make sure you are not overstating the amount you pay each month for a given item.

Financial Affidavits in New Hampshire Divorce and Parenting Cases – Conclusion

In conclusion, the pitfalls referenced in the preceding paragraphs of this blog post are easily avoidable.  Recognize that the New Hampshire Financial Affidavit is a crucial document in your New Hampshire divorce or parenting action.  As such, devote the amount of time necessary to completely and accurately fill it out. When in doubt, disclose the asset or income.  Otherwise, you risk the Court, or the other party, pointing out your omission and drawing into question your honesty.

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 pitfalls of incorrectly filling out a New Hampshire Financial Affidavit in your New Hampshire divorce or New Hampshire parenting action.

 

Posted in Law Blog

Divorce Lawyers in Portsmouth and Dover New Hampshire: Jurisdiction

by Todd W. Stevens, Esquire

Todd StevensNH Divorce Jurisdiction: Introduction

NH divorce attorneys and New Hampshire divorce lawyers analyze jurisdictional issues relating to New Hampshire divorces everyday.  Why?  Because the New Hampshire family division court must have jurisdiction in order for you to file your NH Divorce Petition.  A New Hampshire family division court’s jurisdiction is based upon a NH statute, RSA 458:4,  located here.

“The statute requires the New Hampshire family division court to have jurisdiction over the parties and the cause of action in New Hampshire divorce cases.”

The statute requires the New Hampshire family division court to have jurisdiction over the parties and the cause of action in New Hampshire divorce cases.

NH Divorce:  Jurisdiction Over the Parties

In order for the New Hampshire family division court to hear your NH divorce case, it must have jurisdiction over the parties – the spouses in the marriage. Jurisdiction over the parties in a NH divorce occurs in three factual situations  First, the New Hampshire family division court has jurisdiction where both spouses lived in New Hampshire when the NH Divorce Petition was filed.  Second, the court also has jurisdiction over the parties where the spouse who filed the NH Divorce Petition lived in New Hampshire and the other spouse was personally served with the NH Divorce Petition within the state.  Third, jurisdiction is also proper where the spouse filing the NH Divorce Petition lived in New Hampshire for one year prior to filing.

NH Divorce:  Jurisdiction Over the Cause of Action

The New Hampshire family division court must also have jurisdiction over the cause of action in order for the parties to proceed with a NH divorce.  A cause of action is just that – the reason why one spouse decided to seek a divorce.  Most commonly, the cause of action is irreconcilable differences arose between the parties which lead to the irremediable breakdown of the marriage.  However, the cause of action could also be fault-based – adultery, habitual drunkenness, treatment so as to endanger health or injure reason, extreme cruelty, etc.  The cause of action must have wholly arisen or accrued while the person filing the NH Divorce Petition lived in New Hampshire.

NH Divorce Jurisdiction:  Conclusion 

A person seeking to file a NH Divorce Petition in New Hampshire must make sure the NH family division court has jurisdiction to hear the case.  In order to have jurisdiction to hear the case, the New Hampshire family division court must have jurisdiction over the parties and jurisdiction over the cause of action. However, there are other circumstances that would allow the court to exercise jurisdiction which are beyond the scope of this blog post. The best way to be sure if the NH family division court has jurisdiction in your case is to contact an experienced New Hampshire divorce attorney or aggressive NH divorce lawyer.

Contact the T.W. Stevens Law Firm in Dover, NH and Portsmouth, NH If You Need Help Figuring Out Jurisdiction in Your NH Divorce Case

 

 

Posted in Family Law, Law Blog

The Relationship Between Alimony and Property Division in NH Divorce Cases

by Todd W. Stevens, Esquire

The New Hampshire Divorce Property Division Statute – RSA 458:16-a

Almost every New Hampshire divorce involves division of marital property.  How marital property is defined and divided is controlled by the NH property division statute, RSA 458:16-a, located here.  As experienced Portsmouth NH divorce lawyers know, marital property is generally defined as all property owned by either party that exists at the time of divorce.  The NH property division statute contemplates an equal division of marital property between the divorcing spouses, but this presumption can be rebutted if one party shows an equal division would not be equitable or appropriate given the specific circumstances of the parties’ lives.

The New Hampshire Alimony Statute – RSA 458:19

Many NH divorce actions also have alimony as an issue.  As experienced Dover NH divorce attorneys know, alimony is controlled by a NH statute, RSA 458:19, located here.  Generally speaking, a party may receive alimony if s/he lacks sufficient assets or income to meet his/her reasonable needs, the other party can meet his/her reasonable needs while paying alimony, and the party requesting alimony cannot establish an independent source of income.

How the NH Property Division Statute and the NH Alimony Statute Relate to One Another 

Experienced New Hampshire family law attorneys grapple with property division and alimony issues in NH divorce cases all the time.

Most parties to NH divorce actions understand and accept that an equal division of marital assets is fair.  It’s a simple rule that usually leaves each party with some assets to build upon. Few parties agree on alimony, even in situations where one party stayed home throughout the marriage to care for the children.  The party with a potential alimony obligation often views it as a handout to the other party, especially when the other party filed for divorce.  The party seeking alimony believes alimony is necessary because s/he did not pursue his/her career in order to support the other party’s career and/or the children.

Often times the parties can agree on every issue other than alimony.  In these cases, the New Hampshire family court decides if alimony is appropriate, and, if so, the amount of alimony.  There is little consistency in this area of New Hampshire divorce law, and both parties are taking a big chance in letting the NH family court decide this issue.

The solution is simple and often overlooked even by aggressive NH divorce attorneys.  The NH property division statute and NH alimony statute are linked in order to address this problem. Specifically, the alimony statute allows a NH family court (any by implication the parties) to consider any property one party will receive in determining the appropriate amount of alimony.  Obviously, the more property one party receives, the less his/her need for alimony. Essentially then, if the parties can agree to an unequal allocation of marital property in favor of the spouse who would receive alimony, the alimony issue can be resolved without litigation.

This solution is often acceptable to both parties.  The party paying alimony  likes this solution because s/he is the wage earner and is better positioned to “earn back” any property given to the other spouse in excess of what is equal.  The party receiving alimony finds this solution acceptable because s/he needs an influx of liquidity in order to establish himself/herself, pay for training and education, and search for suitable employment.

Contact the New Hampshire Divorce Attorneys at the T.W. Stevens Law Firm

We can help you successfully navigate alimony and property division issues in your New Hampshire divorce. Our offices are conveniently located in Portsmouth, NH and Dover, NH.

 

 

Posted in Law Blog

3 Misconceptions about Divorce Mediation in New Hampshire

by Todd W. Stevens, Esquire

The power of suggestion.  Advertisements are built on it.  Politicians (yuck) trade on it.  Friends rely on it to make everyday decisions.  And the divorce mediation process uses it to broker settlements in divorce cases.  There’s nothing wrong with that – settling a divorce case with minimal court involvement is a laudable goal in any divorce.  The trouble, however, is that people in divorce cases are often highly emotional and overly susceptible to suggestion in the mediation context.  Suggestion reaches the level of misconception.  As a result, vulnerable people enter into agreements at mediation that, when viewed from afar, don’t serve their interests very well.  Some common misconceptions are discussed below.

“Suggestion reaches the level of misconception.  As a result, vulnerable people enter into agreements at mediation that, when viewed from afar, don’t serve their interests very well. “

Misconception #1 – You Must Settle All of the Issues in Your Divorce At Mediation

There’s a basic tension in divorce mediations that you should be aware of.

On the one hand, mediation is your chance to try to resolve issues in your divorce.  It’s your mediation and you are in control.   You are not required to settle any issue at mediation if you are not comfortable doing so.  There’s no penalty, no negative consequence, no punishment for not reaching an agreement.  Rather, the mediator merely reports the case did not settle and the court schedules a thirty minute temporary hearing.  While the mediator typically makes all of this clear at the mediation, it often difficult for people to remember this in the heat of the moment.

On the other hand, the mediator’s job is to settle the case.  S/he will remind you that you will have to go to court if you can’t settle the issues at mediation.  Court is right up there with public speaking as an activity most people seek to avoid at all costs.  Further exacerbating the problem is that people have difficulty saying no.  They want to be seen in a positive light, especially by the mediator – a person they perceive as an authority figure.  Add the fact that the mediation frequently occurs at the courthouse and you have powerful suggestive forces pushing you to settle, none of which involve a rational calculation of your interests.

So, how do you dispel this misconception at mediation?  First, before attending the mediation, make a list of the issues that will likely be addressed.  Think about those issues in the context of where you want to be in ten years.  By taking the “long view”, you gain a measure of objectivity that is absent from the emotional turmoil that characterizes most divorces.  Having thought about where you want to be in ten years, formulate positions, or proposals, that get you where you want to be in ten years.  At mediation, be willing to discuss these issues, but don’t stray from your comfort zone.  Any proposal that your spouse ties to a time deadline for acceptance should be viewed with great skepticism.  Finally, insist that any agreements reached are tentative and subject to review by a lawyer or other person you trust.   This gives you the cooling off period you need to sort out a rational decision from a misconception-based decision.

Misconception #2 – The Marital Mediator Will Make Sure Any Agreement is Fair to Both Parties.

One of the most common misconceptions held by unrepresented parties is that the marital mediator will make sure any agreement is fair.  It’s easy to see why many unrepresented people believe this.  The mediator acts much like people imagine a judge would in the courtroom.  The mediator listens to both parties’ concerns, offers solutions, and counsels each party on what is reasonable.  The mediator often offers his/her opinion on what the court would do with a particular issue.  Finally, the mediator has superior knowledge than either self-represented party .

While marital mediators certainly try to make sure any agreement is fair, it’s important to remember two things.

First, this is your mediation.  The marital mediator’s role is to facilitate a settlement between the parties, not judge the propriety of the agreement – that’s the court’s job upon submission of any agreement.  In fact, if both parties agree to a settlement, then fairness is largely irrelevant.  Sound scary?

Second, what a marital mediator thinks is fair might not be what is legally fair or appropriate.  Alimony, child support, property division, health insurance, parenting, etc. are all legal concepts derived from legal statutes.  Yet, the marital mediator often is not a lawyer (ask them).  While they receive training, non-lawyer mediators are not qualified to offer legal opinions as to what is fair, or what a court is likely to do with a given issue.  In fact, non-lawyer mediators have never litigated family law issues and have never stepped foot in a courtroom to represent a party in a divorce case.  Is it wise, then, to base your settlement on his/her opinion of what is fair?

The way to avoid this misconception is obvious.  Either represent yourself and hopefully strike a fair deal or hire an experienced divorce and family law lawyer to review any settlement prior to you definitively accepting it.

Misconception #3 – The Mediation Process Produces Helpful Evidence for My Case

From a lawyer’s perspective, marital mediations are fascinating.  They offer a small window into the dynamics of the marriage and allow the lawyer to corroborate or disprove many of the assertions previously made by the client in private.  Spontaneity and high emotion cause both parties to say and do things that would aid their respective cases at a subsequent hearing.

Clients routinely want these statements or actions brought to the court’s attention.  They are disappointed to learn that mediation is confidential.  The marital mediator cannot be called to testify and his/her notes cannot be introduced into evidence.  The parties behavior, statements, and settlement offers similarly cannot be used in court.  However, the cloak of confidentiality usually works to the benefit of the parties, by allowing them to move the ball forward without fear of creating damaging evidence in the process.

Contact the T.W. Stevens Law Firm and We’ll Help You Dispel Misconceptions and Achieve a Fair Settlement at Mediation

 

 

 

 

 

 

 

 

 

 

 

 

Posted in Law Blog

NH Divorce Attorneys: 3 Common Misconceptions About New Hampshire Child Support

by Todd W. Stevens, Esquire

On its face, calculating child support in New Hampshire seems easy.  There a mathematical formula, incorporated in the New Hampshire Child Support Guidlines, located here, into which you input the number of children, the parties’ gross incomes and some limited expense information.  A quick tap of the “calculate” button and, viola – the NH Child Support Guidelines amount of child support appears.  Add these numbers to the Uniform Support Order, file the USO with the court, along with your Financial Affidavit, and you’re done.  Right?  Many, many people have followed this approach, only to learn the hard way how very wrong they were.  Read on, and I’ll dispel three common New Hampshire child support misconceptions for you.

Misconception #1 – The Amount Determined by the New Hampshire Child Support Guidelines is the Correct Amount of Child Support

As experienced New Hampshire child support lawyers know, child support in New Hampshire is governed by a statute; RSA 458-C.  The statute provides a set formula for the presumptively correct amount of child support.

However, did you know the amount of child support you pay or receive is not always rigidly determined by the formula?  Specifically, the New Hampshire child support statute contains so-called “special circumstances” that, if raised by a party, may be considered by the court to increase or decrease the amount of child support.  The special circumstances are financial and many relate to the expenses associated with raising the parties’ children.  Special circumstances are best understood by way of illustration.

Suppose your children live almost exclusively with you.  Your spouse (or ex-spouse) pays child support in accordance with the New Hampshire Child Support Guidelines.  Intuitively, that seems fair, right?  Your spouse should help you pay for the children’s expenses.

Now, assume the children spend an equal amount of time with your spouse.  Your spouse earns more than you, and pays the Guidelines amount of child support. Of course, your spouse also pays for the children’s expenses when they are with him/her – food, clothing, toys, etc.  Common sense tells you that seems less fair – the absentee parent should pay more child support than the parent who pays almost half of the children’s expenses.  NH child support special circumstances exist to address this very issue.

Misconception #2 – After a NH Divorce, the Parties can Agree to Decrease the Monthly NH Child Support Amount Without Filing Anything with the Court

After a New Hampshire divorce, it is common for the parties to agree to decrease the monthly amount of court-ordered New Hampshire child support.   The reasons for doing so are innumerable – decreased income, increased household expenses, caring for an elderly relative, a new baby, etc.

One party often pays the agreed-upon decreased monthly child support amount for years.  Eventually, the party receiving the child support asks the other party to resume payments at the court-ordered amount.  The other party refuses and the parties return to court.

It is there that the party paying child support learns a horrifying truth – s/he owes the court-ordered amount of child support, not the agreed-upon amount – for the entire time the agreement was in place.  This often amounts to thousands of dollars in unpaid, and now past-due, child support.  This nightmare could have easily been avoided if the parties had merely filed their agreement with the court.

Misconception #3 – Unemployment Automatically Eliminates a New Hampshire Child Support Obligation

It seems like a basic rule of fairness that an individual should not be required to pay child support if s/he has lost his/her job.  I agree, but that’s not the law as it exists today.  Under the NH Child Support Statute, a party who has loses his/her job must file the appropriate pleading with the court in order to eliminate or decrease his/her child support obligation.  The unemployed party is still responsible for the full amount of child support if s/he does not notify the court and will be obligated to pay past-dues amounts when employment recommences.  Many people only this lesson by being brought back to court by their ex-spouse.

Contact the T.W. Stevens Law Firm for Help with NH Child Support Issues

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Posted in Law Blog

T.W. Stevens Law Firm: Relocation of a Residence of a Child in New Hampshire: NH Family Law Attorney

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by Todd W. Stevens, Esquire

A NH Statute, RSA 461-A:12, Governs Relocation of a Residence of a Child in New Hampshire

A common issue addressed by New Hampshire family law attorneys in New Hampshire divorces or NH parenting actions is the relocation of a residence of a child.  A New Hampshire statute, RSA 461-A:12, controls this issue while the NH divorce or New Hampshire parenting action is pending.  The statute also controls this issue after a Final Parenting Plan has been ordered by the Court.

“Contact the T.W. Stevens Law Firm and learn why many of our clients consider us to be the best family law attorneys in New Hampshire.”

Instances When the NH Statute, RSA 461-A:12, Does Not Govern Relocation of a Residence of a Child in New Hamphire

This statute does not apply in all instances.  For example, it does not apply if the existing parenting plan, order on parental rights and responsibilities, or other enforceable agreement between the parties expressly governs a child’s relocation.  It also does not apply if the relocation results in the residence being closer to the other parent or to any location within the child’s current school district.  Further, it does not apply to the relocation of any residence in which the child resides less than 150 days a year.

The Procedure for Determining Relocation of a Residence of a Child in New Hampshire under the Statute, RSA 461-A:12

Under the statute, the parent intending to relocate with the child must provide reasonable notice to the other parent.  For purposes of the statute, 60 days notice is generally considered to be reasonable.  The family court must hold a hearing on the relocation issue if requested by one of the parents to do so.

The Legitimate Purpose Standard in New Hampshire Relocation Cases

At the hearing, the parent seeking permission to relocate with the child bears the initial burden of demonstrating, by a preponderance of the evidence, that the relocation is for a legitimate purpose and the proposed location is reasonable in light of that purpose.  There is no definition of legitimate purpose, and the Court considers whatever evidence the relocating parent chooses to submit.

Relocating for employment purposes can be considered legitimate, as can moving in order to foster closer emotional bonds between the child and his/her extended family.  A legitimate purpose does not include relocating because of an acrimonious relationship with the other parent, or because one parent wants the other parent “out” of the child’s life.

The Best Interest Standard in New Hampshire Relocation Cases

If the relocating parent establishes that the move is for a legitimate purpose, then the other parent must prove, by a preponderance of the evidence, that the proposed relocation is not in the best interest of the child.

The court is guided by several factors in determining if the proposed relocation is in the child’s best interest.

(1) each parent’s reasons for seeking or opposing the move;

(2) the quality of the relationships between the child and the custodial and noncustodial parents;

(3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;

(4) the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move;

(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements;

(6) any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and

(7) the effect that the move may have on any extended family relations.

The court also can consider other factors not listed above, and no single factor is dispositive of whether the child can, or cannot, relocate.  In either case, the Court typically issues a written decision explaining its rationale for either allowing, or disallowing, the relocation.

Contact the T.W. Stevens Law Firm and We’ll Help You Resolve Your New Hampshire Relocation Issue

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Posted in Family Law, Law Blog

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