Mediation in Divorce Cases

I have to admit that I’m getting sold on mediation for divorce cases. That’s a good thing because it is increasingly a part of the divorce process in New Hampshire. Early on I figured that the same broken dynamics which governed the spouses’ failed relationship would play itself out in mediation. It was always an opportunity for a quicker outcome with lower cost for the client, but for a questionable outcome? I am happy to report, however, that there are a number of people mediating who do it well and lawyers who are willing to drop the blind advocacy role and act as problem-solvers. One nice thing is that, as in the courtroom, the outcome does not hinge on how obnoxious or unreasonable one side acts. The outcome in mediation is in accordance with the governing law because skilled mediators and lawyers know the general parameters of how a Judge would probably decide the case. We can’t be certain, but the laws which the Judges follow give the process a degree of predictability which makes taking outrageous positions a waste of time and money. Waiting for, preparing for and going through a final hearing can be an unaffordable and ill-advised dispute resolution process. When we have to go that route, it keeps us lawyers busy, but blessed are those who can accomplish quicker, cheaper, less acrimonious and comparably fair voluntary resolution by mediation.

By:  Peter G. Webb

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Alimony in New Hampshire

Yes, we have alimony in New Hampshire. The law is RSA 458:19 (http://www.gencourt.state.nh.us/rsa/html/XLIII/458/458-19.htm). The Legislature has tinkered with the law over time, but for more than 20 years, the concept has been pretty consistent. If one spouse has the ability to earn enough income to meet his or her reasonable needs, and the other does not have that ability, taking into consideration the style of living during the marriage, the first spouse can be ordered to pay alimony to the second spouse. The challenge is always how much and for how long. Alimony can be for a defined amount of years, it can be a lump sum payment, it can progressively decrease over time, it can be permanent. It will be up to the judge to determine what is fair and appropriate under the particular facts of each case.

Unlike child support, there is no formula to determine the amount or duration. As the statute indicates, many factors are taken into consideration, including: length of marriage, age, health, income, assets, needs. Because of the many variables involved, it is difficult to predict an alimony award. As a result, the issue of alimony often compels a case to go to trial, sometimes for the Court to decide only that limited issue.

By:  Peter G. Webb, Esquire

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Mandatory Initial Self Disclosure in Divorce Cases

There is a new step early on in the New Hampshire divorce process.  Family Division Rule 1.25-A now requires that each party disclose a wide variety of financial documentation within 45 days after the papers are served or 10 days before a small temporary hearing. See link at www.courts.state.nh.us/rules/family/fam-1.htm#1.25-A.  This disclosure is a lot of tedious work, but I have to admit it helps.

No lawyer can competently counsel a client in a divorce case without an adequate understanding of the marital finances.  Until that level of comfort is achieved with an open and adequate exchange of financial information, it is not possible to settle a case.  Getting to that point sooner rather than later accelerates that process.  Our Court system is doing what it can to make the divorce process more efficient and more fair.  This new rule serves those objectives by eliminating the expensive gamesmanship which used to unnecessarily prolong the process.

By:  Peter G. Webb

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Postnuptial Agreements

As of an August 21, 2013 decision, a postnuptial agreement between spouses on the disposition of their property in the event of divorce or death may be enforceable.  The N.H. Supreme Court reasoned that, while our divorce statutes are designed to ensure a fair outcome regarding property distribution, there is no reason why those statutes “should, in every case, override the mutual agreed-upon will of consenting adults.”

Our Court held that a party seeking to invalidate a postnuptial agreement must prove that:  “1) the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of a material fact; 2) the agreement is unconscionable; or 3) the facts and circumstances have so changed since the agreement was executed as to make the agreement unenforceable.”  Further, the Court held that “the parties must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement, with fairness being the ultimate measure.”

This is a novel development in New Hampshire divorce law, but the principle is really nothing new:  if a Court thinks that a contract is fair, the Court will enforce it. If it doesn’t, it won’t. That’s the same way the Court handles prenuptial agreements.

By:  Peter G. Webb

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College Expenses in a Divorce

Long ago our divorce courts had the power to make orders and approve agreements regarding the children’s college expenses. Frankly, that never seemed quite right to me. In an intact family there isn’t a legal obligation to pay for college. Although usually there is no more worthy nor profitable investment than in a child’s future, there are circumstances when a beloved child’s college lifestyle doesn’t deserve to be subsidized. Anyway, in 2004, the NH Legislature changed the law and took away the Court’s power to make such orders.  That law was just changed by some new legislation.  Although the Court still cannot make its own order on how college expenses are to be allocated between the parents, it now has the authority to approve and enforce an agreement between the parties on payment of college expenses.  Such an agreement between the parties must define each party’s contribution by amount, percentage or formula.  The agreement has to indicate whether or not the agreement is later modifiable, and upon what terms.  Lastly, the agreement has to be approved by the Court.

By:  Peter G. Webb, Esquire

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Marital Process in New Hampshire circa. 2013

There is a recent phenomenon in the Family Law Courts in New Hampshire that can be described politely as gridlock.  There is no secret that the state’s resources for keeping the courts operating have been dwindling with the poor performance of the economy and accompanying decrease in state revenue.  People are not getting access to the court to move their cases along.  Add to that the nature of family law and you have a very difficult situation.  This essay will attempt to address the reasons why it is the way it is and what possible solutions might be available to ease the untenable status quo.

I attended a recent luncheon that addressed the economic circumstances of New Hampshire.  I learned that the state’s revenue is basically at the same level it was in 2006.  The economy is growing as is revenue but there has been so much of the state’s revenue earmarked for the payment of interest on debt that was accumulated during the slowdown that we are in effect in a worse place than we were six years ago.  Growth is projected and predicted but on a very slow and steady pace over the next few years.  I believe this slow growth is a good place for the state to be because all systems will have an opportunity to adapt to the new economic frontier.  Unfortunately, it does not do much for people who are in current crisis and need access to the court.  Eyes turn toward the question of what to do.

Litigants cannot afford to litigate as they have in the past.  The days of slow march through Georgia in the form of a “motions practice” are over.  Results from this type of practice will come so slowly that it will be intolerable for the litigants who are attempting to address the needs of their families.  There are three ways to address this problem starting with the parties’ attitude toward the litigation.  Family law has always been an emotionally charged subject.  Unfortunately, if you are going to enter the process, you need to look at it as a businessman would look at a problem to be solved and not as an emotional upheaval that will somehow bring a psychological payoff in the end.  My experience is that this expected emotional payoff will be a disappointment.  A litigant is much better off getting through the process and beginning to change his or her life in a positive direction.

Second, the system has adapted by setting up discovery rules that are mandatory and expeditious.  While everyone is angry about these rules in the present because they are difficult to follow, there will be benefits in the end.  Getting right down to the economic issues of any family law problem will expedite the results.  The less time that is spent on expensive discovery, interrogatories, and depositions will be money in the pocket of the parties.

Lastly, mediation has been ordered as mandatory by the court in most situations.  This is recognition of the fact that continued war between the parties without at least finding which issues can be agreed upon is a waste of time and the court’s resources.  It only makes sense to narrow down the issues that need to be litigated before embarking upon costly, difficult to schedule, and emotionally turbulent court hearings.

I am also a believer in private mediation and, when necessary, private binding arbitration.  For parties with some resources, it makes sense to purchase access to the system where it is possible.  There will be long term savings if the parties can agree on most issues and then have an expert decide those few issues that they cannot decide on their own.  An open minded and realistic view of the system is necessary.  Collaborative law is also an alternative to the litigation road.  I became certified as a collaborative law lawyer last spring through the training offered by the Collaborative Law Alliance.  It is a very different way of looking at the processing of marital cases.  Some people do not believe it will be successful in the long run.  It is not right for every case.  In some cases, however, it can be a better solution to resolving parties’ issues than the current system that exists.

The parties will have to adapt to the resource limitations that currently exist within the family law system.  Those who do not will pay more both in terms of economic resources and their own emotional investment in the case.  We are in for the long haul with the system that we have.  Those who adapt will be doing themselves a favor.

By:  Kent M. Barker

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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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Use of Information

One of my favorite quotes of the past ten years is by the author Philip Caputo who wrote “we drink greedily from the salt water of information while our throats are parched for droplets of wisdom.”  So it seems that our world edges ever closer to the inevitable conclusion that all of the information we have is useless because we do not know what to do with it.  I suppose I am not so pessimistic.  Mankind has always found a way to adapt to the technological changes that have a profound effect on our lives.  We survived the automobile and the telephone in this century alone.  The computer will be assimilated into the 21st century and our lives will be better.  It leaves the question of the moment, however, which is “how do we actually USE all of this information?”

The answer is one that is constantly morphing along with the changes in technology.  There are certain guidelines that I try to use to keep the torrent of information under control:

1.  Under commit.  It took some time to decide to actually do this blog.  It is not worth doing unless it is to be taken seriously.  Committing to too many different kinds of information attachments creates confusion and erodes credibility.  Like Gram said about the buffet line; take all you want but eat all you take;

2.  Set limits.  The telephone revolutionized communication but it created a situation where too much needless communication was done and it actually became counterproductive at times.  Like limiting a teenager’s time on the phone after school, we have to decide how much time and information is productive and where it no longer serves its best purpose.  An example is legal research.  Lawyers have mountains of case summaries at their fingertips, far more than ever before.  Processing, understanding and organizing all of that information takes precious time and energy.  There are few cases where a ton of legal research is necessary.  Managing ALL of our resources is an art and a skill that brings success and results that any lawyer strives for;

3.  Narrow the focus by learning.  I first touched a computer keyboard in college.  Advances in software are not things that I process or accept easily.  I resist it whenever I can.  The reality is that old dogs HAVE to learn new tricks in this day and age to stay competitive.  I try to keep an open mind and learn something new about the power of my computer each day.  I ask for help when I need it which is often.  I try to jettison the cumbersome processes and focus on what works, what information is valuable to me and can be used most efficiently;

4.  Integrate experience.  Law practice is still a people centered business.  Instant communication of information does not mean a response has to be shot back in an hour.  Cases some times have to ripen.  A non-response is often a very powerful response.  Using the information available in the context of years of experience is what gives each client the very best of his or her lawyer’s talent.

The list above grows and changes each day of my practice in the areas of Criminal, Family Law and General Litigation.  I strive to find the “pearls of wisdom” by using the information I have as best I can with thought, consideration, and realistic expectations of my self and others.   I try to make each day a little better than the last so that I can best serve my clients and the legal system.

By:  Kent M. Barker

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Family Law – Know What to Expect

The new year begins with a commentary on family law.  Specifically, on parental rights and responsibilities.  Too often, parties look at children, or time with their children as a commodity to be bargained for.  In October, 2005, the Parental Rights and Responsibilities Act, RSA 461-A, was enacted into law.  This act drastically changed the way that courts view parenting responsibility.  The act encourages frequent and continuous contact between the children of a divorced family with both parents.  In some respects, the change in the law has shifted the focus of the parenting aspect of family law cases from a “win/lose” situation to a more cooperative approach.

Most parties come into a divorce situation without knowing what to expect.  Since many aspects of a divorce include competition for possession of assets, they are more likely to view the parenting time aspect as the “win/lose” scenario.  It is the responsibilities of the lawyers on both sides of any such case to educate the parties that the parenting responsibility aspect of the case can and should be as much of a “win/win” result as possible.  It is clear from statistics and from direct observation that the best interests of the children are always served when this is the case.

By: Kent M. Barker

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