JURISDICTION AND VENUEIn an action for divorce, the Petitioner is the person who initiates the divorce process. The Respondent is the person who answers the lawsuit once it has brought. In order for a New Hampshire court to have the power to grant a divorce, it must first have jurisdiction over both the Petitioner and the Respondent. Jurisdiction exists only if at least one of the following is true
a) both parties live in New Hampshire when the action is commenced; or
b) the Petitioner lives in New Hampshire and the Respondent is personally served with the divorce petition within the state; or
c) the Petitioner has lived in New Hampshire for at least a year before the action is commenced.
If none of these requirements are met, a New Hampshire court does not have the power to grant a divorce in your case, and your lawyer will discuss with you the options that you have for proceeding.
Venue is what determines which court in New Hampshire will hear your case. Where you live in New Hampshire determines what venue is appropriate, and venue is usually appropriate in the county where you live. If you live in the Nashua area, it is likely that your divorce will be heard at the Nashua Family Division, which is located on Spring Street in Nashua.
TYPES OF ACTIONThere are two types of legal actions, legal separation or divorce. An action for legal separation determines matters relating to parental rights and responsibilities (i.e. custody and visitation), child support, spousal support, property division, and responsibility for debts. However, a legal separation does not end your marriage, and therefore neither party may remarry following a legal separation. As a practical matter, most legal separation actions are later converted into divorce actions An action for divorce determines matters relating to parental rights and responsibilities (i.e. custody and visitation), child support, spousal support, property division, and responsibility for debts, and it will legally end your marriage. When your action for divorce is completed, the Court will decree that you are no longer married, and you are free to remarry at that time. The Court will have terminated your marriage. You may obtain a divorce either due to the “fault” of your spouse, or because “irreconcilable differences” have arisen between you and your spouse. Most divorce actions are filed on the grounds of irreconcilable differences, and are commonly known as “no fault” divorces. A divorce based on the fault of a spouse, such as adultery or physical abuse, is available in New Hampshire. The process for obtaining a fault ground divorce will be more time consuming and more costly than obtaining a no-fault divorce, but the successful proof of a fault ground can sometimes result in a more beneficial property settlement or a greater alimony award, and it can also affect decisions regarding parental rights and responsibilities. Your attorney will discuss with you the advantages and disadvantages of basing your divorce action on a fault ground given the particular facts of your case.
AGREEMENT vs. TRIALThe vast majority of divorce cases can be resolved by agreement. Even though you may feel hostile toward your spouse and your spouse may feel hostile toward you, it is still generally both possible and preferable to reach an agreement. You can let a judge decide the case for you, but the judge does not always have time to hear your case in the detail you desire, and it is often easier to live with an agreement you make rather than with decisions imposed by the judge. It is your decision whether to enter into an agreement, or settlement, of your case. We will advise you in this regard, but you must make the final decision.
ALTERNATIVE DISPUTE RESOLUTIONThere are several forms of Alternative Dispute Resolution in New Hampshire. You and your spouse can agree to a neutral evaluation, which involves having a neutral third party look at the facts of your divorce and make his or her recommendations as to a fair and equitable outcome. This can be helpful in giving you and your spouse a starting point from which to reach an agreement.
A second form of Alternative Dispute Resolution is mediation. In mediation, a neutral third party talks to each side and attempts to bring the parties to an agreement. The goal of the mediator is to bring the parties to a fair agreement, but it is still up to the parties to agree. The mediator cannot impose a settlement on the parties.
A third form of Alternative Dispute Resolution is the Collaborative Law process. The Collaborative Law process offers a solution to the traditional divorce process. Under the Collaborative process, the adversarial and positional system is replaced with an interest-based, problem solving process. Instead of focusing on each spouses positions, the Collaborative professionals help the parties move beyond the reasons why they are divorcing and focus on the interests and needs of each party. Through a process of problem solving, brainstorming, and creative thought processes, the parties are able to find solutions and come to a common understanding and agreement as to their respective interests.
Finally, you and your spouse could agree to arbitration. In arbitration, you and your spouse would agree to be bound by the decision of a neutral third party. That person will hear each side’s arguments and reach a decision on each issue submitted to him or her. Arbitration can help to complete the divorce process much more quickly than waiting for trial, and an arbitrator will have more time to hear and understand the details of your case, in a way that a judge likely will not have time to do.
TIME INVOLVEDIf an agreement can be reached on every issue in your case, your case can be concluded shortly after the agreement is obtained, but usually not less than two months from the initiation of the divorce process. If it is necessary for a judge to decide one or more issues in your case, it may take up to a year or more to proceed to trial. There are many cases before the Court, and your case will be put on a list with others waiting for a trial.
TEMPORARY RELIEFBecause the divorce process can take a long time, it is often necessary to temporarily resolve issues, such as parental rights and responsibilities and child support, for the period while the divorce is pending. After the Divorce Petition has been filed but before a Final Decree is entered, the court may grant temporary relief. Issues for which temporary relief may be granted are establishing a parenting plan, determining child support pending the Final Decree, restraining one spouse from harassing, intimidating or injuring the other, restraining a spouse from dissipating the marital property, or requiring a spouse to vacate the family residence.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.