Power Corrupts

Some of our state legislators have embarked on a campaign to diminish the power of the judicial branch of state government. They are doing so by proposing legislation such as periodic evaluation screenings of judges and challenging the Court’s power to make its own rules.  These are the efforts of people in government who want to amass more power and who misunderstand or want to radically change our system of government.

The New Hampshire State Constitution became effective in 1784, six years before the Federal Constitution. Our constitutional convention, after several drafts were rejected by the voters, used the Massachusetts 1780 State Constitution as a model, revising it in several respects. The Massachusetts Constitution was in large part the work of John Adams, one of our country’s principal constitutional theorists. The Massachusetts Constitution he helped draft was also a model for the Federal Constitution.

According to Adams, a plan of government needed checks and balances to prevent a dangerous concentration of power.  He believed that one way to accomplish that was by maintaining a “separation of powers” between three branches of government: executive (governor), legislative (house and senate) and judicial (courts). With separate counter-balancing powers between the branches of government, no one branch would be able to abuse its power. That concept is a fundamental principle implicit in US Constitution and explicit in the New Hampshire Constitution.

The separation of powers principle is so fundamental in New Hampshire law that it is specifically set out in The Bill of Rights section, Part I, Article 37, of the New Hampshire constitution:

 “In the government of this state, the three essential powers thereof, to wit the legislative, executive and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”

It is to be expected that one branch will resent the counterbalancing power of another branch.  Our system of government has actually institutionalized that tension as a good and prudent thing.  However, when a thirst for power drives one branch of government to act to undermine the powers of another branch of government, the balance of power inherent in our plan of government, and the liberties dependent upon it, are threatened.

By:  Peter G. Webb

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Safety from Accountability

A man was being interviewed about a machine he had invented.  He said that it turned septic effluent into perfectly clean water.  The interviewer asked whether it was being used anywhere to provide household drinking water.  He replied, “no, lawsuits you know ….:”

The safety of our roads, homes, machines, medicines, cars, food, tools, toys, etc., is in large part due to a legal system which makes people accountable for their actions.

Does the prospect of being held accountable sometimes hinder innovation?  Probably.  Does it make the world we live in a safer place?  Absolutely.

By:  Peter G. Webb

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Hot Coffee

The NH Association for Justice recently screened a documentary entitled “Hot Coffee” at the Red River Theater in Concord.  The public was invited.  The attendees were from the legal and legislative communities mostly.  The film’s title refers to the famous McDonalds personal injury case where the Plaintiff was awarded over one million dollars for damages sustained when coffee purchased at a McDonalds drive through window spilled in her lap.  The film, produced by a plaintiff’s trial lawyer from the West Coast, is set up much as a legal file would be only in the form of a film.  It sets out the facts, analyzes them, and tries to make a conclusion about what the significance is.

I left the film with three main ideas.  First, the McDonalds Hot Coffee case was grossly mischaracterized in the press.  The facts showed that the Plaintiff was very badly burned and her lifestyle was significantly limited by the incident.  The compensatory damages were not unreasonable.  The punitive damages awarded that put the verdict over one million dollars (and were later decreased by the Court) are based on the McDonalds decision to ignore the mounting number of burn cases reported.  One is reminded of the Ford Pinto cases where the manufacturer knew people would get burned to death as a result of rear end collisions but decided against a recall.  It seemed the cost of the recall was more than projected cost of wrongful death suits.  The punitive damages took care of future such cost benefit decisions or so one would think.

The second idea was that tort reform (putting dollar limits on personal injury awards) grew from this case as a political trick to get contributors to campaigns (insurance companies) a cap on their cost of doing business (paying claims) on the promise of reducing premiums (it didn’t.)  The big lie at work once again.  The film tells the story of a tort reform supporter, later an injured accident victim,  who was incensed that a cap on his damages limited his recovery said “but that is for those fakers who bring frivolous law suits, not for me!” or something to that effect.

The third idea is that the word must be spread.  Each day the gap between haves and have-nots widens.  The resources of the average person shrinks while the power of corporations without a conscience grows.  We need the access to the Courts in order to make each person, company, and entity responsible for its actions.  Without it, fairness is lost and chaos is soon to follow.

I recommend Hot Coffee as an important film for any person to watch and consider.

By:  Kent M. Barker

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Workers’ Compensation

WHAT IS WORKERS’ COMPENSATION?

Workers’ Compensation is a system of laws created by our legislature which govern the rights and duties of an employee who suffers a work injury.  With few exceptions, an employer who hires one or more employees must have workers’ compensation insurance.  That insurance provides benefits for all injuries arising out of employment.  Injuries for which an employee is entitled to compensation can include injuries such as burns, lacerations, sprains or fractures, as well as injuries from repetitive motion, chemical or noise exposure, stress.  Workers’ compensation does not cover disabilities which are the natural result of the aging process or which are due to non-work related causes.  Benefits may be due, however, if work aggravates a pre-existing or underlying medical condition.

To qualify for workers’ compensation benefits, you do not have not to prove that your employer was at fault.  You only have to show that your injury was the result of work activity.  In return, however, this law prohibits an employee from suing the employer in the normal sense, even if the employer is at fault.

WHAT SHOULD I DO IF I HAVE A WORK-RELATED INJURY?

Most importantly, get the medical care you need to have your injury properly diagnosed and treated.  Secondly, be sure to report the injury promptly to your employer.  Your employer will have forms for this purpose. If you wait too long to report the injury, you can lose the right to recover benefits.  Once a report of injury has been completed, your employer will communicate the fact of your injury to its workers’ compensation insurance company.  That insurance company, which has been paid to cover any workers’ compensation claims, will be responsible on your employer’s behalf for your claim.

WHAT ARE MY RIGHTS?

Under New Hampshire workers’ compensation law, an employee who is injured in the course of work is entitled to four benefits:

I.     The first benefit is weekly disability payments.  If you are disabled from performing any work as a result of your injury, you are to receive 60% of the gross average weekly wage you were earning at the time of the injury.  This is called total disability.  If you were working two jobs, both incomes are added in calculating your average weekly wage.  Whether you are totally disabled is determined primarily by your medical records.  The right to receive weekly benefits for total disability continues so long as you are totally disabled.  After three continuous years of total disability, you may qualify for a yearly increase in your weekly payment (if you are not receiving Social Security).

Weekly payments can also be for partial disability.  If you resume work after your injury, and as a result of your injury, you earn less than your pre-accident average weekly wage, you are entitled to receive weekly disability payments of 60% of the difference between your pre-accident average weekly wage and your wages after your return to work.  Partial disability benefits are not ordinarily paid for more than five years after the injury.

          II.     The second benefit is the payment of your medical bills.  Your employer’s workers’ compensation insurance company is obligated to pay all reasonable medical bills for services required as a result of the work injury.  This obligation includes medicine and necessary equipment.  Some insurance companies have a “managed care program,” which requires you to receive care from a certain group of physicians.  Otherwise, you are free to chose who treats you.  You are entitled to reimbursement for mileage to and from medical care.

          III.     The third benefit is a right to vocational rehabilitation.  This benefit is provided if your injury permanent makes you unable to do the work you used to do.  In such a case, the workers’ compensation insurance company is obligated to help you acquire a new job or, sometimes, new job skills.  The goal is to help you return to employment, in a position which is within your physical limitation and as close as reasonably possibly to the wages you were earning when you were injured.  A vocational rehabilitation specialist is hired by the insurance company to work with you.  This person will evaluate your current physical capacity, your interest, aptitudes and past work skills, to determine the best way to return you to the workforce.  An injured employee who has a work capacity is obligated to cooperate with vocational rehabilitation efforts.  The failure to do so could result in the suspension of benefits.  Generally speaking, the most valuable benefit an injured employee can receive from the workers’ compensation system is a successful vocational rehabilitation program.

          IV.     The fourth workers’ compensation benefit under our law is payment for permanent impairment suffered by the employee.  This is a separate benefit to which the injured employee is entitled if the work injury has caused permanent loss of the normal function of a part of the body.  The calculation of the percentage of permanent impairment is made by your doctor, through the use of standardized medical procedures for measuring loss of use.  The dollar amount of this benefit depends on the part of the body involved, the degree of loss of use, and the injured employee’s average weekly wage.

Other benefits include the right to be placed by the employer in a temporary alternative work position, while unable to do the usual work.  Also, if an injured employee is within 18 months, with or without “reasonable accommodation” to return to the former job, the employee is entitled to reinstatement to his or her former position.

THIRD PARTY ACTION

If someone or something other than your employer or coemployee contributed to your work injury, you may be entitled to bring a claim against such a third party in addition to collecting workers’ compensation benefits,.  For example, if you were in a car accident in the course of your employment duties, you would be entitled to workers’ compensation benefits.  You might also be entitled to make a separate claim against the responsible driver.  In such a “third party action,” you would not be limited to workers’ compensation benefits.  You would be entitled to compensation for 100% of past lost wages, future lost wages, emotional distress, physical pain, scarring, incidental financial loss.  If you were to recover compensation in such an action, the law requires that the workers’ compensation insurance company be reimbursed from that compensation for the benefits it provided.

WHO ADMINISTERS WORKERS’ COMPENSATION?

The New Hampshire Department of Labor acts as the “court system” for workers’ compensation claims.  If a disagreement develops on any workers’ compensation issue, the issue is resolved at a hearing at the Labor Department in Concord.  Testimony, evidence, and legal argument are presented to a hearings officer.  A hearings officer settles the dispute with his or her decision.  Each party must abide by that decision, unless the decision is overturned on appeal.  An appeal consists of a new hearing before a three-member appeals board.

SOCIAL SECURITY DISABILITY

If any injury is going to make you unable to work for year or more, you should apply for Social Security disability benefits.  An application for those benefits will not hurt a workers’ compensation claim, even if you are denied Social Security.  If you are approved, what you are receiving from workers’ compensation would be subtracted from the Social Security disability payments you are awarded.

SHOULD I HAVE A LAWYER?

The guidance and counsel of an experienced attorney will help an injured employee throughout the workers’ compensation process.  Many legal and factual issues can develop in such cases.  The representative of the workers’ compensation insurance company will be trained in the related issues and procedures.  Legal counsel will guide the employee in the course of a claim, so as to prevent and solve problems which might develop.  Should decisions need to be made, or disputes arise, your attorney can serve as an experienced information source, problem solver, or advocate on your behalf.  If a hearing at the New Hampshire Department of Labor proves to be necessary, with a lawyer your case will be presented by someone familiar with the laws and procedures, and with how to best present the employee’s case.

 By:  Peter G. Webb

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Crime and the Media

The temptation is to make an entry on the “issue of the day” whatever that issue may be.  Instead, the subject matter of this post will be Crime and the Media and the role that it plays in our lives.  It seems at first blush that the subject is rather dry and, once a case is over, who really cares?  A closer look reveals that our society borders on crime obsessed.  Take a look at today’s newspaper (or any day’s for that matter,) the TV listings, the movie releases.  They are dominated by stories of crime.  Many social critics lament that we emphasize the social deviant behavior while ignoring the good works of those who deserve praise.  I’m not quite so cynical as to think that good works are ignored.  Heroism is everywhere and we are not slow to recognize it.  Criminal behavior SHOULD be thrust in the spotlight in the spirit of outrage.  This behavior is not acceptable and those who do it should be placed in the spotlight of shame much the same as the Pilgrims did with their public stocks.

The problem I see is with the fascination and media saturation with crime.  It has lost its proper place and share of the attention.  There is a very great risk to this: complacency.  Too much focus on deviance erodes that sense of outrage and gets us to a place of acceptance.  Serial killer trading cards?  True crime books outselling great biographies of world figures?  This is the beginning of a slip down the road of the acceptance of bad behavior that is both wrong and dangerous to future generations.

The answer is not censorship or some kind of control on the media.  The answer is to ignore the hysteria individually and emphasize the good behavior we see around us.  Print stories about the athlete’s breaking of the record first and not the bad behavior that has come to be expected.  Cut off the interest, and the stories will not be printed.  A quick solution?  No.  It is the only way, however, to take back the proper focus of the media onto the right kind news.

By:  Kent M. Barker

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How Delays Deny Justice

The word came down from a clerk in a Hillsborough County Family Court (9th Circut) that all final hearings were being scheduled out to June.  Our case is a contested custody case where the Guardian Ad Litem has already made a recommendation.  This leaves a delay of about nine months for this family to move on to a new way of doing things.  It is difficult to underestimate the damage that can be done as a result of the time that will pass without a Final Order.

Criminal cases get priority where a defendant is incarcerated.  With a liberty interest at stake, it is only fair that incarcerated defendants get into Court faster.  The misconception is that the Criminal system does not suffer any denial of justice due to the late scheduling of trial time.  Nothing could be further from the truth.  Cases without incarcerated defendants still require prompt resolution for defendants and victims alike.  Repeated trips to the Court only to be told that the case has been rolled over to another date cause added legal costs, lost work time, and wasted public resources like police time that could be better used to serve the community.

The problems with scheduling hearings in a more timely fashion are not the fault of the Clerks or the Judges.  The problem is money and it is no secret.  Prosperity will return when the political landscape is more predictible.  The key for the justice system is to resist panic.  Economies prosper where there is safety and order and infrastructure.  The State needs to circle the wagons, work a little harder, and continue to produce the best access to the Court that it can.  Businesses need to see that NH is a stable place where companies and their workers can feels safe and have their disputes settled fairly.  Investment in NH will return when it is seen by the national and world business community that we have best weathered the storm and kept our doors open while others have paniced.  They will choose NH as a place to live and work and pay taxes.  Only then will State revenue rise and allow some breathing room for the Court system.

Justice delayed is justice denied.  The road out of the current delay problems is to work harder, be patient, and remain confident that prosperity will return.  It is the NH way and has always been successful in the past.  This crisis will be no exception.

By:  Kent M. Barker

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Legal Issues of a Car Crash

REPORTING THE CRASH

A motor vehicle crash should be reported to the police and/or the Department of Safety.  Although injury or vehicle damage may initially seem modest, any crash must be treated seriously.  At the scene, exchange name, address, and insurance company information.  If the police respond, they will make out a report.  That report will be available at the local police department and/or the Department of Safety in Concord.  You should file an Operator’s Report with the Department of Safety, if there is no police report, and damage appears to exceed $1,000.00 in value or if there is personal injury.

Immediately advise your auto insurance company of the facts of the crash.

If possible, take photographs of any vehicle involved, as well as of the scene of the crash and any visible injury, to assure that you have complete evidence.

DAMAGE TO YOUR CAR

The car insurance company of the responsible driver is to pay the cost for the repair of a damaged vehicle.  If the repair would cost more than the value of the car, then the fair market value of the car must be paid.

If you had collision insurance, you have the option of having your insurance company take care of the property damage.  Although, what they pay will be reduced by your deductible, it is sometimes easier to go initially through your company.  They will then seek reimbursement from the responsible driver’s insurance company, and obtain deductible reimbursement for you.

In either case, the processing of the property damage claim requires that you make your vehicle available to be examined for an appraisal of the repair costs.

The responsible insurance company will also be obligated to pay expenses incurred for a rental vehicle, for a reasonable time while the damaged vehicle is being repaired or until payment is made for the value of a totaled vehicle.

MEDICAL BILLS

The injured party must obtain the medical care necessary to diagnose and treat any injury suffered.  The treatment records from that care are essential to substantiate an injury resulting from a crash.  To pay for the required care, you may have two insurance options.

Submit your medical bills first to your health insurance company, if you have it.  Their obligation to pay depends upon the terms of the policy under which your health insurance was purchased.  Submit the bills for this determination.  Usually, health insurance coverage will cover the bills, subject to a right to eventual reimbursement, should you later receive compensation for your injuries by the responsible automobile insurance company.

A second option for funding medical care is your car insurance.  Under New Hampshire law, if you have liability insurance, a private passenger auto insurance policy must also have coverage for your medical bills and for those of your passengers.  The amount of this coverage depends on what you purchased.  This medical bill reimbursement is available regardless of who caused the accident.  This coverage is available even if you also have medical insurance to pay the bills.  If medical insurance pays your bills, this portion of your car insurance can be used to pay your deductible and/or co-pays.  Your automobile insurance company is not entitled to reimbursement out of any eventual compensation for your injuries from the responsible automobile insurance company.

Regardless of any such insurance payment, medical bills are included in what you are to be compensated for by the insurance company of the responsible driver.  The fact that you paid for insurance which covered your medical bills doesn’t relieve the wrongdoer of his responsibility to pay for the harms caused.  However, that payment for your medical bills, as part of a single eventual payment for all of your other losses, is not made until the eventual settlement or verdict at the conclusion of the case.

BODILY INJURY

The human body was not made to endure the forces involved in a motor vehicle accident.  As mentioned, be sure to get the medical care you need to receive an accurate diagnosis and the necessary treatment.  Substantiation of the physical injuries is necessary evidence to document the injury in a claim.

FULL, FAIR, AND ADEQUATE COMPENSATION

The reason we pay for car insurance company is to take care of losses resulting from a crash.  In this state, the compensation due from a negligent driver who is responsible for a crash is whatever is necessary to fully, fairly, and adequately compensate the injured party.  Punitive damages are prohibited in New Hampshire.  The injured party, therefore, is to be paid for the losses he or she has been caused, nothing more and nothing less.

If you are to be defended against such a claim, it is the responsibility of your automobile insurance company.  They will investigate the claim, retain and pay a lawyer to defend the claim, pay compensation due the injured party (within the limits of your liability coverage).  It is a condition of the insurance coverage that you cooperate with your insurance company.

For a claim on behalf of the injured party, it is essential to gather and preserve all the relevant evidence regarding the accident and its consequences.  The right to fair compensation is jeopardized without evidence to prove the facts.  You can be sure that a vigorous defense will be mounted to try to minimize or defeat the claim.  Evidence of the nature and extent of all the injured party’s losses must be developed, collected, and properly presented.  It is the party making the claim that has to produce the evidence to prove it.  The better the evidence, the stronger the case.  If the evidence is lacking, even a valid claim can fail.

The losses which the law provides are to be compensated include:  medical bills, incidental financial expenses, lost past and future wages, physical pain, emotional upset, loss of enjoyment of life.

Eventually, when the pertinent information and evidence regarding the crash are known, and when any resulting injuries have either stabilized or finally resolved, a claim can be valued.  The value of a claim cannot be ascertained until the facts which determine value are known.  Those facts include:  the nature of the injury; the extent, magnitude and duration of symptoms; the amount of medical bills; the extent and duration of the disruption of normal work and non-work activities; the extent of any disruption of income; the permanent consequences of the injury, etc.  What is “full and fair” compensation depends on the magnitude of the injuries and losses suffered, the strength of the evidence of legal fault of the other party, and “the marketplace,” i.e. the range of value which similar cases yield in local verdicts and settlements.

Settlement discussions are usually first attempted with the responsible party’s insurance company, with a view towards negotiating an acceptable settlement without a formal lawsuit or trial.  The vast majority of these cases are settled without the necessity of trial.  However, it is frequently the right and ability to bring suit which compels the responsible insurance company to discuss reasonable resolution.  If the insurance company is not acting fairly to resolve the matter, then a suit can be commenced in the appropriate court, if it has not already been.  Even though a lawsuit may have been started, the possibility of voluntary resolution can be explored at any stage of the process.

The commencement of suit is accomplished by formally serving the responsible driver with court papers notifying him or her of the claim.  The next stage of a suit is the exchange between the parties of all relevant or potentially relevant information, first by written questions, known as interrogatories, and later in an oral question and answer session, known as a deposition.

Eventually, if the matter cannot be resolved between the parties voluntarily, the evidence of the case will be presented to a jury for its unanimous decision on the apportionment of legal fault and the assessment of what they unanimously believe is fair compensation under the facts.  A jury consists of twelve randomly selected members of the public.

DO I NEED A LAWYER?

If injury is caused by a motor vehicle crash, New Hampshire law makes it the responsible party’s duty to provide fair, full and adequate compensation.  That includes more than just paying medical bills or lost wages. As anyone who has been injured can tell you, the bills are a small part of an injury.

Insurance companies are contracted and paid to provide fair compensation in the event of an accident. However, minimizing that compensation is in the business interest of a responsible insurance company.  Insurance representatives are trained and paid to serve that interest.

The protection of your legal rights will require commitment, experience and hard work.  At Winer and Bennett, LLP, you will receive the determination, expertise and resources you need to present a claim which commands the respect it deserves.

By:      Peter G. Webb

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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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Contingent Fees

Most of my personal injury clients hire me on a contingent fee.  That means that I am not paid for my services until and unless I am able to get my client paid for his or her losses.

Paying for legal services only if you win is a modern concept.  We frequently hear the argument that being able to hire a lawyer on that basis fosters lawsuits.  I believe that that is true.

There probably would be fewer lawsuits in a world where only clients who have the means to fund a lawsuit could receive legal services.  Those of limited means who are injured by the negligence of others would just have to suck it up.

I would not like that.  True, it hurts when a case goes bad and I do not get paid.  It costs my office at least $20,000 to $30,000 in my time to try a simple case.  But I like helping people who cannot help themselves.  I like the fact that a person of modest means can have the same shot at justice as the rich guy.  I also like not asking my client to pay for my work until after I have gotten him or her paid.

There will always be an interest group complaining about contingent fees.  There is nothing wrong with protecting your own interests.  I just think there is a net gain for us all by leveling the playing field of justice.

By:  Peter G. Webb

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Circuit Courts Are Upon Us

The advent of the Circuit Courts in NH is upon us.  The idea is to centralize the services provided by the Court in order to reduce administrative costs and, in theory, to make the Court more convenient for the consumer.  One stop shopping.  Where we now have Probate Court, Family Court, Juvenile Court, and Criminal Court, all those will be under one roof with a common Clerk and, I assume, Judge

The Judiciary will be the ones most stretched by the new arrangement.  A judge will often have to switch gears from reviewing a Probate Accounting to accepting a plea on a DWI, to hearing a Custody issue.  All in the same hour.  It will not be easy and the Judges will have to be cross trained.  Patience will be required.

The transition will have its challenges.  All changes do.  The current system has been in place for decades and confusion will reign for a while.  Lawyers and litigants alike are used to lines of demarcation.  It will take more time to figure out where to go and what to do.  There will be less human contact with the people who are the system.  Like the self checkout lines at the Supermarket, you will have to ring things up yourself, then pay.

It is unfair to criticize unless one has a better idea.  Obviously, our legal system has been neglected and needs some updating.  Electronic filing will help.  Streamlining the litigation process will free up valuable resources.  It seems like implementing these changes gradually would make sense.  We are told that the economic realities do not give us that luxury today.

It is hoped that, after a period of adjustment, the system will be in a better place.  Time will tell.  The effort is well intended.  Let us hope it is well designed.

By Kent M. Barker

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