I. UNDERSTANDING OUR ROLE IN YOUR DIVORCE
This legal guide is intended to answer some of your general questions pertaining to the divorce process in New Hampshire. It is not meant to be a complete legal guide. Every case is unique, and your situation may vary from this information. PLEASE ASK QUESTIONS at any time.
You or your spouse may not fully understand the process of obtaining a divorce or the time involved. You or your spouse may expect the legal process to solve problems it cannot solve. For example, the law will not award one party a divorce and the other a reconciliation. The law cannot solve the emotional aspects of the break-up of your relationship.
You may feel that your financial condition is poor right now, but after separation, your finances are likely to be worse. Your spouse may have unrealistic expectations as to the amount of property that will be received. The Court cannot divide assets that do not exist nor award support that cannot be paid.
As your attorneys, our duty is to inform you of your rights and obligations and to assist you in arriving at an equitable resolution of your domestic matter. We will inform you of all settlement offers, and advise you whether an offer is equitable and in accordance with what a Court would likely award. It is your decision whether to accept a settlement offer. If a settlement cannot be reached, we will prepare your case for trial.
We encourage you to communicate with your spouse; however, discussions are often misunderstood as agreements. Be cautious in negotiations with your spouse, who may feel an advantageous settlement can be made directly with you. Agreements made without advice of counsel may or may not be binding and approved by the court. Do not sign any documents without first discussing them with this office.
When children are involved, your relationship with your spouse does not end with the Final Decree of Divorce. You will have continued contact with your spouse regarding support, visitation and other parental responsibilities. For the sake of your children, keep open the lines of communication to your spouse. No one wins when a marriage is dissolved. However, your goal should be that your children are not the losers.
RECONCILIATIONMost of the time, clients come to this office to seek a divorce. Not all have made up their minds to take that big step, however, and seek first to know their other options. The Firm encourages clients or potential clients to explore alternatives to divorce, and often we will suggest other approaches that will protect the client and meet his or her needs, short of divorce.
When your attorney raises the topic of reconciliation with you, he or she is not questioning or judging your decision, but is confirming that you are aware that the results you seek may be attained by other means and that what you really desire is a divorce.
This is your life, and it is your marriage. If there is a chance of reconciling the marriage, now is the time to do it. New Hampshire has many competent psychiatrists, psychologists, and marriage counselors. We will make recommendations to you if you desire.
CONFIDENTIALITYCommunications with this office are confidential, which means they are protected by the attorney-client privilege. This is the case regardless of whether you are speaking with your attorney or with a legal assistant. Please understand that in order for this office to represent you adequately, it is necessary for you to be cooperative and truthful and for us to be fully informed on all facts pertinent to your situation.
We are not here to judge you. Our goal is to obtain the best outcome possible for you in your case. One of the worst things that can happen to your case is for your attorney to be surprised when he or she is in court because you did not tell your attorney the whole story.
WE REPRESENT ONLY ONE PARTYWe represent you and do not represent your spouse. Your interest and those of your spouse conflict, and your spouse should retain his or her own lawyer. If your spouse chooses not to obtain counsel, this office will prepare the legal documents on your behalf, but you and your spouse need to understand that we are attempting to achieve the best possible outcome for you, not for your spouse. We cannot give your spouse advice about the divorce or about the legal process. We do not represent both parties, only you.
II. UNDERSTANDING THE DIVORCE PROCESS
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 is brought. In order for a New Hampshire court to have the power to grant you 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 factors are true, 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 where 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. If you live in Portsmouth, it is likely that your divorce will be heard at the Portsmouth Family Division, which is located on Parrott Avenue in Portsmouth.
TYPES OF ACTIONThere are two types of legal actions that may apply to you, 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. Unlike a divorce, 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. In addition, it is common for the Respondent in a legal separation action to file a counter petition for a divorce.
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 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 making 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.
Another 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. An arbitration can help to complete the divorce process much more quickly than waiting for trial, and an arbitrator also 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. Trials are set by the Clerk of Court, generally on a “first-come, first-served” basis. You will be informed when court hearings are scheduled, and when your divorce is final.
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 time period while the divorce is pending. After the Divorce Petition has been filed and 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.
III. PARENTAL RIGHTS AND RESPONSIBILITIES
The Court determines parental rights and responsibilities based on what it believes to be the “best interests of the children.” There are no presumptions that one spouse would be a better parent than the other simply because of gender or financial situation. The Court considers all relevant factors, including the wishes of the parents; the wishes of the child; the relationship of the child with his parents, siblings and any other person who may significantly affect the child’s best interest; the child’s adjustment to home, school and community; and the mental and physical health of all individuals involved. If the child is old enough, the Court will also consider, but is not bound by, where the child wants to live. Sometimes the judge or marital master will meet privately with the children to determine their preference, and sometimes the Guardian Ad Litem will fill that role. Under exceptional circumstances the Court may consider the preference of a young child.
DECISION MAKING RESPONSIBILITY AND PARENTING TIMEThere are two types of parental rights and responsibilities: decision making responsibilities and parenting time.
- Residential Responsibilities: Residential responsibilities involve the question of where the children will actually reside. The parent who has the children residing primarily with him or her also is responsible for making day-to-day decisions for the children, such as their bedtime, what they will have for dinner, etc. Major decisions, however, still must be made together by the parents, regardless of who has physical custody. There are several forms of residential responsibilities, including:
- Joint Residential Responsibilities: Under this arrangement, for example, the children may spend six months with one parent and six months with the other, or three months with one parent and nine months with the other. This arrangement is limited to unique situations that justify its use. Usually, there is no parenting time with the absent parent.
- Shared Residential Responsibilities: This form of residential responsibilities is an arrangement where the children essentially end up with two homes, and they spend approximately equal time at each. This type of residential responsibilities is as flexible as the parties want it to be. It is designed to share the time with the children, and neither parent really has the children for a “majority” of the time. Parenting time may be for one week at a time or for several days at a time.
MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIESUntil the child is emancipated, which in New Hampshire occurs when he or she marries, joins the armed services or reaches the age of eighteen, the Court has the power to modify parental rights and responsibilities. However, unless the parties are able to agree to a modification, the Court will not modify a Parenting Plan unless it can be shown that the child is in danger of either physical or mental harm or one parent repeatedly, intentionally and unwarrantedly interferes in the residential responsibilities of the other.
PARENTING TIMEThe purpose of parenting time is for the child to enjoy the love, care, and attention of both parents. Parenting time is determined by the age and the needs of the child for a relationship with both parents. Other factors will also affect parenting time, such as the geographical distance between where the parents live, and the work schedules of each parent.
If you and your spouse cannot agree on parenting time, the Court may specify parenting time, such as from 6:00 p.m. Friday to 6:00 p.m. Sunday, twice a month. After the divorce is final and as the child advances in years, the frequency and duration of parenting time may be extended.
The parent who does not have primary residential responsibilities should exercise parenting time in a reasonable manner. The Court has restricted parenting time when a parent has, for example, been habitually drinking during parenting time.
Parenting time and child support are separate issues, and the parent with primary residence responsibilities should not deny parenting time because of late or nonpayment of monthly support. We recommend you be liberal and understanding with parenting time, especially during the period of negotiations. You should not use your children as a weapon in the divorce. This will only hurt your children, and will not substantially improve your situation.
IV. CHILD SUPPORT AND ALIMONY
UNDERSTANDING CHILD SUPPORTChild support is money paid by the parent who does not have primary residential responsibilities on a regular basis, usually monthly, to the parent with primary residential responsibilities of the children for the support, maintenance and education of the child. Gifts, purchases of clothes, transportation, vacation expenses and payment of rent are not considered support, even though they benefit the child. The Court does not require the parent with primary residential responsibilities to account for the support, that is, to prove that each and every support dollar received is spent on the children.
Published statutory guidelines provide an estimate of the monthly support the Court will grant under normal circumstances. The support obligation is based on the number and ages of the children and the net income of the parties. Net income is determined by subtracting the Federal and State withholding taxes, Social Security withholding and cost of dependent health insurance from the gross monthly income. The Court does have the power to award more or less than the statutory guideline amount upon a showing of exceptional circumstances.
Support orders issued by the Court are statutorily required to provide for the assignment of wages. This means that unless there is some exception that is applicable, the court will issue automatically an order to the paying spouse’s employer directing that the support amount be deducted from the employee’s paycheck and sent directly to the state agency in charge of enforcement or to the person to receive the support. The exceptions to this rule are: (1) where there is an agreement between the parties approved by the court; and (2) where the court issues a written order that there is good cause not to require immediate assignment.
The first months of separation are very important in establishing patterns of support payments. The parent with primary residential responsibilities should expect support to be paid in full and on time. The parent paying child support should always pay by check or money order and indicate the payment for “Child Support for (month), (year).” For example, “Child Support August 2006.”
Support will cease when the child reaches age eighteen or is earlier emancipated. The parties may, by agreement, make provisions for the child’s education beyond age eighteen, until the child completes a college education or reaches age twenty-one. However, the Court will not impose such a requirement in the absence on an agreement between the parties.
MODIFICATION OF CHILD SUPPORTThe support obligation may be modified subsequent to the initial order. However, a request for modification will only be heard by the Court if at least one of two factors is present: (a) there has been a “substantial change in circumstances” which makes the current child support award unfair; or (b) three years have passed since the child support award was entered. Remarriage of either parent does not automatically change the support obligation.
ENFORCING A NEW HAMPSHIRE CHILD SUPPORT AWARD IN ANOTHER STATEA New Hampshire Decree granting support is enforceable in other states based on the full faith and credit cause of the United States Constitution. If the parent paying child support leaves New Hampshire and fails to comply with the support Order, the non-payment of support may be referred to an attorney for enforcement, or referred to the appropriate state agency for enforcement under the Uniform Reciprocal Enforcement of Support Act.
ALIMONYAlimony is often referred to as support and maintenance. It can be awarded to either spouse. Permanent alimony is generally reserved for cases of lengthy marriages, illness of one party or other unusual circumstances. Alimony generally ceases when the recipient remarries. It does not cease when the payor remarries. Alimony may be awarded for a limited period, often six to twenty-four months, to allow one party to finish an education or adjust to single life.
Unlike child support, the amount of an alimony award is reserved to the Court’s discretion. There are no statutory guidelines for determining alimony, and alimony will not be awarded in all cases. Some factors to be considered is determining the amount of alimony are: (a) each spouse’s needs and ability to pay; (b) each spouse’s age and health; (c) employability; (d) social or economic status; (e) liabilities of each spouse; (f) the duration of the marriage; and (g) the amount of property owned by each spouse.
There is no fixed rule by which the amount of alimony can be determined. Each case must be decided upon its own relevant facts in the light of what is fair and reasonable.
V. PROPERTY DISTRIBUTION, INSURANCE, AND ALLOCATION OF DEBTS
PROPERTY DISTRIBUTIONAs soon as the divorce petition is filed, all of the personal property and real property owned by either spouse becomes part of the marital estate, regardless of whether the property is held in the name of both spouses jointly or one spouse individually. The marital estate also includes intangible property, such as bank accounts, employment benefits, stock options and pension plans.
The filing of the Petition creates an automatic restraining order on the marital estate, and neither spouse is allowed to dissipate assets from the marital estate. Each spouse may still spend money for usual day-to-day expenses, such as buying groceries and paying bills. However, neither spouse may close out bank accounts or sell off portions of the marital property.
The parties may agree to a division of the marital estate, or the Court will order a division if the parties cannot agree. In New Hampshire, there is a statutory presumption that the marital property should be divided equally, unless some factor exists which makes an unequal division more appropriate. The statute sets out a number of factors for the Court to consider, including the duration of the marriage, the role each party played in growing or diminishing the marital estate during the marriage, and the fault of the party causing the breakdown of the marriage, if the marriage is based on a fault ground.
Misunderstandings and disagreements often arise over the division of personal effects. We recommend spouses exchange a list of personal effects and household goods each desires to receive. These issues hopefully can then be taken care of without Court involvement.
Many parties suspect their spouse is hiding assets. Some are. The law requires both parties to make a complete disclosure of all assets and to account for any assets disposed of during separation. Through various techniques during the divorce process such as interrogatories, depositions, or other means, hidden assets can often be discovered. If hidden assets are discovered after the divorce is final, an action may be brought to divide the newly discovered asset.
INSURANCEAfter the divorce is final, it is likely you will not longer be covered by your spouse’s medical insurance policy. Prior to the divorce becoming final, you should examine the medical policy for conversion privileges, or inquire into obtaining new medical insurance coverage. As part of the parents’ support obligation, the court may require one parent to provide medical insurance coverage for dependent children. A spouse is also sometimes required by the Court to pay the cost of medical insurance COBRA coverage for his or her spouse for some period of time following the divorce.
The Order may also require that life insurance on one or both parents be maintained, with the child as beneficiary, until the child support obligation has terminated. This assures support for the child should a parent die.
During and after the divorce, you should assure that liability insurance is maintained on all vehicles.
You and your spouse will be jointly liable on joint debts, even after the divorce. The Court cannot change an agreement with a creditor. Therefore, if you have a joint credit card with your spouse, the credit card company is free to pursue either you or your spouse for the balance due, even after your divorce is complete.
You can agree with your spouse how you would like to allocate the marital debts, and the Court can order one spouse to be primarily responsible for a debt. However, you should cancel all joint accounts with your spouse, and you should do so in writing to the creditor. Merely cutting up credit cards is not enough. For debts that are held jointly but are too large to pay off, such as a mortgage, you should attempt to enter into a novation with the creditor, which involves the creditor essentially reissuing the loan in the name of only one spouse. This will relieve the other spouse for liability on the debt.
The parties’ indebtedness at the time of separation and the indebtedness incurred up to the date of the divorce are subject to great misunderstanding. It is preferable for the parties to agree which obligations each will pay during this period. Please notify this office before agreeing to be responsible for any debts. Failure to make such an agreement may cause misunderstanding, add pressure from creditors and may require the court’s intervention to allocate responsibility for the debts. It is necessary for this office to have an up-to-date and complete list of all indebtedness.
VI. TAX IMPLICATIONS OF DIVORCE
Your divorce attorney is not a tax attorney. He or she can give you general advice on the implications of divorce on your taxes, but if you have substantial assets, it may be worthwhile to seek additional advice on tax planning after your divorce. There are attorneys at Hamblett & Kerrigan, P.A. who concentrate their practice on tax law, and we would be happy to arrange a meeting for you with one of these attorneys.
Generally speaking, divorce will have certain implications on your taxes. First, alimony may qualify as a tax deduction for the payor and be taxed as income to the payee. To be deductible, alimony must terminate upon the death of the payee and be paid in cash, rather than through transfers of property. Special rules apply if alimony will exceed ten thousand dollars ($10,000) in any year.
Second, you should understand that a joint return may not be filed after dissolution of marriage. Your marital status is determined as of December 31st of the tax year. We will tell you when your divorce is final. In any case, if you are expecting a refund, it may not be advisable to file a joint return with your spouse during the divorce, since doing so will result in the I.R.S. sending the refund in one check. You should consult with a tax professional to determine the impact of filing married, separately.
Third, you generally may deduct that portion of your attorney fee that is allocable to tax advice. Your itemized statements which you will receive from this office will indicate what a fee relates to, in order to help you determine whether the fee was tax related.
Fourth, child support is neither deductible by the payor nor income to the payee.
Fifth, the Internal Revenue Code provides the parent with primary residential responsibilities is entitled to the dependency exemption for the children, with one exception. The IRS will allow a parent who does not have primary residential responsibilities to take the child if the decree or agreement so provides and annually the parent with primary residential responsibilities provides a certificate to be attached to the claimant’s tax return that the parent with primary residential responsibilities will not claim the deduction. The parent with primary residential responsibilities may file as head of household even if the parent with primary residential responsibilities does not take the child as an exemption.
VII. MISCELLANEOUS MATTERS
ATTORNEY FEESIn certain circumstances, your spouse may be required to reimburse all or part of our attorney fee. Regardless of your spouse’s obligation, YOU ARE ULTIMATELY RESPONSIBLE FOR OUR FEES FOR PROFESSIONAL SERVICES. Any amount paid by your spouse to us will be credited to your account.
WILLIf you have not executed a will or have executed a will making provisions for the benefit of your spouse, we recommend you have a will prepared at this time. There are attorneys at Hamblett & Kerrigan, P.A. who concentrate their practice in this area, and we will be happy to arrange a meeting for you.
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.