Divorce

WHAT IS A DIVORCE?

Our laws give our courts the power to terminate a marriage on “fault” or “no-fault” grounds.  A fault divorce is based on proof that the marriage was caused to break down because of certain forms of misconduct, including: extreme cruelty, adultery, conduct endangering reason.  In a no-fault divorce, the divorce is granted on unspecified “irreconcilable differences” which have caused the “irremediable breakdown” of a marriage.

WHAT IS A LEGAL SEPARATION?

A legal separation is a court action by which spouses remain married, but in all other ways are divorced.  A legal separation decree determines all the usual divorce issues: support and custody of children, visitation, alimony, and the division of property and debts.

WHAT IS AN ANNULMENT?

An annulment is a proceeding which concludes that the parties were actually never married.  It is rarely used and can be granted only when the marriage was illegal from the beginning, such as when the marriage was prohibited by law or when either party was already married to someone else.

WHO CAN GET A NEW HAMPSHIRE DIVORCE?

A New Hampshire court can only grant a divorce in a marriage which has a connection with this jurisdiction.  If both spouses reside in-state, the court can grant a divorce action regardless of the length of residence.  That is also the case if the person filing for divorce lives in this state and the other spouse is served with the initial papers in-state.  If one spouse lives in the state and the other lives out of state and cannot be served in New Hampshire, the party starting the divorce has to have lived in New Hampshire for at least one year.

HOW IS A DIVORCE CASE BEGUN?

To begin a divorce proceeding, a document alleging the marriage and grounds for divorce is filed with the court.  The court then opens a file and returns the papers to the party initiating the action.  The documents are then provided to the other party.  A person served with divorce papers files an “Appearance” with the court on or before the date noted on the initial divorce papers.  An “Appearance” is a document filed with the court to indicate that the spouse served chooses to participate in the proceeding, either through an attorney or by representing him or herself.  Filing the “Appearance” form assures that you will receive notice of all future hearing dates and receipt of all future court documents.  The party served the papers may file an “Answer”.  Parties also have the option of filing a joint petition for divorce.

WHAT IS AN UNCONTESTED DIVORCE?

A divorce is uncontested when the parties voluntarily agree on all the terms for the divorce.  The issues addressed by the terms of such an agreement customarily include:  parenting responsibility for the children, child support payments, alimony, division of property, and division of debts.  In an uncontested divorce, the parties must submit their agreement in proper written form to the court for its review and approval.  Each party must also file other documents including a financial affidavit, disclosing under oath all income, assets, and debts.  If approved, the terms of the agreement become a court order, and a full hearing is not necessary.  The divorce is effective upon court approval.

WHAT IS THE FIRST STEP IN THE DIVORCE PROCESS?

In our Family Court, the first step is an informational session called a “First Appearance.”  At that session, the Court explains the divorce process to the parties.  The attendance of attorneys is not required.

At the First Appearance, either spouse can request that the court schedule a hearing in order to issue preliminary orders which the parties must obey, pending the final divorce decree.  Such “temporary orders” are decided by the court at a temporary hearing.  The issues which may be decided at a temporary hearing include: interim parental responsibility for the children; support payments for children and/or a spouse; continuation of life and medical insurance coverage; temporary use and possession of the family home, furnishings, automobile and other property; restraining orders regarding transferring or disposing of property; restraining orders preventing one spouse from interfering with the peace or liberty of the other.  The temporary orders are in force until changed by agreement approved by the court, or until a further court order.

The parties must submit their income and expense information, under oath, for a temporary hearing.  That information is used by the court to decide child support, alimony, and the general allocation of temporary financial responsibility between the parties.  Actual testimony is not offered at a temporary hearing.  Instead, each party makes a presentation to the court.  The temporary orders are then decided by the court.  Alternatively, temporary orders can also be established by written agreement, signed by the parties, and approved by the court.  In the event of such a temporary agreement, a hearing is not necessary.

HOW IS THE FINAL DIVORCE DECREE DECIDED?

If the parties voluntarily enter into written agreement setting out the final terms of the divorce, a formal final hearing is not necessary.  However, if the parties cannot agree, the contested issues will be left for the court to decide after hearing the evidence at a final hearing.

The final hearing is conducted in the courtroom before a Marital Master who hears and decides the case.  Divorce matters are not heard by a jury.  At the final hearing each party offers evidence for his or her case, such as testimony of the parties, testimony of witnesses, testimony of accountants or appraisers, as well as non-testimonial evidence such as financial records, business records, etc.  All witnesses are subject to examination and cross-examination by both sides.  Each party is again required to submit, under oath, an up-to-date financial affidavit. Also, each party makes its written recommendation to the court as to what the court should order. Each party has the opportunity to present the law in support of the outcome it considers proper.

After the hearing, the court will let the parties know its decision by mail.  There is no waiting period for the divorce to become effective.  The appeal of any final divorce decree can only be made to the New Hampshire Supreme Court.

PARENTAL RESPONSIBILITY

The law requires that divorced parents make every reasonable effort to co-parent their children harmoniously.

Parental responsibility takes two forms in a divorce:  decision-making and residential.  The first involves the right to participate in parental decisions.  The second involves the physical presence of the child.  Joint decision making responsibility is presumed by the court to be in the child’s best interests, unless proven otherwise.  Residential responsibility involves scheduling the child’s time with each parent.  Unless the parties can agree, the parental responsibility of a child is determined by the court, after consideration of the evidence, based on the child’s best interests.

When there is a disagreement on issues affecting a child, the court may appoint a guardian ad litem to represent the interests of the child.  This person speaks to the parties and others having relevant information, and submits a report making a recommendation on parental responsibilities to assist the court in determining what is in the child’s best interests.  The court may consider the child’s preferences, if the court concludes that the child is capable of mature judgment in that regard.

After the final residential responsibility determination, unless the parties mutually agree to a change of custody, the court will not change physical custody unless the evidence establishes a strong possibility that the child will be harmed if the present living arrangements were to continue.

HOW IS CHILD SUPPORT DETERMINED?

Child support is calculated according to a formula set out by law, called the Child Support Guidelines.  A non-custodial parent’s child support obligation will depend upon the parties’ gross income and the number of children.  In exceptional circumstances the court may permit variation from the Child Support Guidelines.  Otherwise, the child support amount must conform to the Child Support Guidelines.

In the event of a future substantial change in the financial circumstances of the parties, a child support obligation can be modified.  Additionally, after three years, a child support order can be brought forward for review.  In both cases, unless there is a written agreement on a new support amount to be paid, a modification requires filing a motion with the court.

It is preferred but not required that child support be collected through an automatic deduction from the obligated spouse’s wages. Child support can also be paid, with or without wage assignment, through the Child Support Enforcement Unit of the New Hampshire Division of Human Services.  Delinquent child support can result in the seizure of an income tax refund or the loss of a motor vehicle license in New Hampshire.  A party’s failure to pay child support is brought to the court’s attention by the filing of a Motion for Contempt.

WHEN AND HOW IS ALIMONY ORDERED?

Alimony is an award of money for the support of an ex-spouse. Generally speaking, the court will order that payment of alimony if the relative income situations of the spouses after the divorce would otherwise be unfair.  Alimony may be awarded as a temporary or final order to either spouse for a limited time or permanently.  Alimony awards are based on the parties’ relative needs and abilities to pay.  In deciding whether to award alimony, the court considers the general circumstances including:  length of the marriage, age, health, general finances, each party’s earning capacity, each party’s contributions to the marriage, the opportunity of each spouse to acquire property in the future, among other considerations.  The court may take fault grounds into consideration in determining alimony.  An alimony award may be established or modified after the divorce if the court decides that it is justified because of an unforeseen substantial change in the financial circumstances of the parties.

HOW IS PROPERTY DIVIDED?

All property (and debts) in which either spouse has any interest is considered the property of the marriage, and must be distributed in the divorce action.  For this purpose, the court will require that each party make a complete and accurate financial disclosure under oath.  The marital property to be divided includes real estate, personal property, retirement interests, bank accounts, savings plans, stock options, vested inheritances.  The distribution of the marital property can be determined by agreement between the parties, or, if the parties cannot agree, by court order after a hearing.

The marital property is to be divided fairly. The law presumes that an equal division of the marital property between the parties is a fair division, although the court may conclude otherwise under the particular facts of the case. To determine what constitutes a fair division of the marital property, the court may consider a wide range of factors, including:  each spouse’s contribution as homemaker or wage-earner; the length of the marriage; the age, health, skills and employability of each party; each party’s opportunity to acquire property in the future; the custodial parent’s need to remain in the home or care for children; whether property was obtained by gift or inheritance; expected pension or retirement rights; tax consequences; contributions by each spouse to the other spouse’s education or career.  The court may also take fault grounds into consideration in deciding a fair property distribution.

A property settlement is final and cannot be changed because of a subsequent change in financial or other circumstances.  Only a property settlement that resulted from fraud, misrepresentation or a mutual mistake will be considered for modification by the court.

CAN BOTH PARTIES HAVE THE SAME LAWYER?

A lawyer can only represent one party in a divorce proceeding.  It would be a conflict of interest for a lawyer to represent the opposing interests of both parties in the same proceeding.

By:  Peter G. Webb

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