Divorce & Family Law
In New Hampshire, a divorce officially begins when a Petition for Divorce is filed in appropriate court. Once the Petition is filed in Court, it must then be served on the other spouse. Alternatively, some spouses agree to file a Joint Petition for Divorce. The filing of a Joint Petition for Divorce eliminates the necessity of completing “service” upon the other party.
You will need to provide your lawyer detailed information in order to start the process. To give you an idea of the needed information, please use our firm’s New Hampshire Divorce and Family Law Checklist
The answer depends upon the nature and complexity of each case. If both parties begin the process in agreement regarding all issues, both financial and parenting, and all necessary documents are filed with the Court (i.e., Final Stipulation, Parenting Plan, Uniform Support Order, etc.), then a divorce could be completed in approximately 60 – 90 days, depending upon the Court where the matter is pending.
If the parties are unable to agree upon the terms of their divorce, the process can take considerably longer. Generally speaking, contested divorces can take from one to one and a half years. Ultimately, if the parties are unable to resolve their disputes, and a Court is asked to enter final orders after a trial, the length of the divorce can be prolonged if either party seeks an appeal to the New Hampshire Supreme Court.
This is a very difficult question for any attorney to answer at the beginning of a case as the nature and the scope of the work required cannot be predicted. In general, your attorney’s fees will be commensurate with the amount of time dedicated to your case. The amount of time dedicated to your case is directly related to the number and complexity of the issues in dispute. Unfortunately, this means if the other person is contentious and disputes most issues and files many motions this drives up the cost of your case.
You should have a clear understanding of the hourly rate that you are being billed for both attorney time and paralegal time as well as out of pocket expenses. You should receive a written fee agreement from your attorney. It is important to read and understand the terms of your financial relationship with your attorney.
Mediation is a process using a mediator, usually a volunteer lawyer or former Marital Master. The mediator has no interest in the case and cannot compel the parties to settle.
Mediation is a method by which both parties commit to considering alternative, and sometimes creative, outcomes to the issues in dispute. In a phrase, someone pays more than he/she wants to pay and someone agrees to receive less than he/she wants. In considering any offer or counter offer, each party must consider the inherent risks associated with trial, as well as the financial and emotional costs associated with prolonging the litigation.
Mediation can resolve any issue arising between to spouses/parents at any point during the litigation. Mediation can be used to resolve some, but not all of the issues in dispute.
New Hampshire has ten grounds or causes for divorce. A divorce can be granted on the ground that irreconcilable differences have caused the breakdown of the marriage. Irreconcilable differences is probably the most common ground upon which divorces are granted. Alternatively, a divorce can be granted upon a fault ground such as adultery, extreme cruelty, or habitual drunkenness.
New Hampshire recognizes a legal separation between spouses. A legal separation requires the parties to engage in the same process as a divorce and has the same effect as a divorce except that neither party will be made free to re-marry. If one spouse seeks a legal separation and the other spouse seeks a divorce, the Court will proceed with the matter as a divorce.
We Were Never Married, But Have Children, And Are Separating. How Do I Establish Parenting Rights and Child Support Obligations?
If you were not married, but have children, you would begin the process by filing, in the appropriate Court, Parenting Petition, which will include issues such as child support. Like a Petition for Divorce, the Petition must be served upon the other spouse. Again, like a Petition for Divorce, parents can file Joint Parenting Petitions. The filing of a Parenting Petition informs the Court that only issues relating to the children, both parenting rights and responsibilities and financial support, are at issue. As the parents are unmarried, neither alimony nor property division can be heard by the Court.
A Parenting Plan is a document, separate from a Final Stipulation or Final Decree of Divorce, that addresses all issues regarding the children, which are applicable to your family. Among other things, Parenting Plans address the following issues:
• Decision making responsibility for the children and access to information regarding the children (i.e., medical or educational records);
• The Routine Schedule for the children while with each parent;
• Parenting time during holidays and birthdays;
• Parenting time during school vacations and summer vacation;
• Supervised parenting time, if applicable;
• Transportation responsibilities;
• Relocation of the residence of the children;
• Procedures for reviewing and modifying the parenting plan; and
• Future dispute resolution.
How Does The Court Determine Parental Rights And Responsibilities (Formerly Referred To As “Custody” And “Visitation”)?
In determining parental rights and responsibilities, the Court is guided by the best interests of the child. In determining the best interest of the children, the Court will consider a variety of factors including:
• The relationship of the child with each parent;
• The ability of each parent to assure that the child receives adequate care;
• The child’s developmental needs;
• The support of each parent for the child’s relationship with the other parent;
• The ability of the parents to communicate and cooperate with each other concerning the children; and
• Any other factor(s) which the Court considers relevant.
While the Court is charged with the responsibility of supporting frequent and continuing contact between each parent and the children, where such is possible and appropriate, the Court is not required, in the first instance, to award the parties joint or equal parenting rights and responsibilities.
Under New Hampshire law, there is no automatic age upon which a minor child can unilaterally decide where he/she wants to live. However, if the Court concludes that the minor child is of sufficient maturity to make a sound judgment about where he/she wants to live, the Court will give “substantial weight” to the child’s stated preference. In other words, if deemed a “mature minor”, the child’s preference becomes one of any number of factors the Court will consider in issuing a Parenting Plan. Under these circumstances, the Court will also consider whether other factors have influenced the minor child’s preference—i.e., whether a parent has pressured a child to state a particular preference or whether a parent has made promises to a child to encourage the child to state a particular preference
If you and the other parent are unable to agree upon the terms of a Parenting Plan, the Court may appoint a Guardian ad Litem (GAL) to represent the best interest of the children. Based upon the Court’s understanding of the nature of the parenting issues in dispute, the GAL will be charged with the responsibility of investigating those issues identified by the Court.
A GAL’s investigation will typically include things such as interviews with both parents, meetings with the children, and the collection of information from collateral sources such as friends and family identified by each parent as well as from teachers, counselors, coaches, etc. Eventually, if the parties are unable to reach an agreement, the GAL will file a report, with recommendations for orders, with the Court.
Although the Court will usually give considerable weight to the GAL’s recommendations, the Court is not bound by the GAL’s recommendations. In other words, after hearing all the evidence during a final trial, the Court can enter orders different from the GAL’s recommendations.
When a GAL is appointed, the documents you receive from the Court will discuss the $1,000.00 cap on the cost of the GAL’s investigation. If your case involves a number of contested parenting issues, assume that the cost of the GAL’s investigation will exceed that amount.
I Am The Parent With Primary Residential Responsibility For The Children. Can I Move Out Of State With The Children?
These are very difficult cases and the outcome will depend on the facts of each case.
If the other parent disputes the proposed relocation of the children, the relocating parent must show that the proposed relocation is for a “legitimate purpose.” A “legitimate purpose” is one that cannot be accomplished if the relocating parent remains in New Hampshire. Only if the relocating parent demonstrates that a legitimate purpose exists, then the opposing parent must demonstrate why it is not in the children’s best interest to relocate. Some of the factors that the Court will consider in determining whether the proposed relocation is in the children’s best interest include:
• The prospective advantages of the move;
• Whether the relocation is motivated by the desire to frustrate the other parent’s parenting rights;
• Whether the relocating parent will comply with new parenting orders;
• Whether there is a realistic opportunity for parenting time which will preserve the other parent’s relationship with the child;
• The negative impact from continued hostility between the parents; and
• The effect that the move may have on any extended family relationships.
Unfortunately, relocation cases are not good candidates for mediation because one parent must either agree to give up the desire to relocate with the children or the other parent must allow the children to move. Under the circumstances, there is not much “middle ground”. As a result, these cases are oftentimes litigated and can take quite a long time to come to final resolution.
In the first instance, the Court will utilize the Child Support Guidelines Worksheet to establish child support. Child support is calculated using each party’s monthly gross income, after certain limited deductions are applied.
Special circumstances can exist which would compel the Court to deviate from the application of the Child Support Guidelines. Special circumstances include things such as the child’s on-going extraordinary medical, dental, or educational expenses; the significantly high or low income of the obligor and obligee; and the expenses incurred by the obligor in exercising his/her parenting time.
Joint or shared parenting time does not automatically mean that one parent will not pay child support. However, joint or shared parenting time is a factor which the Court may consider in arriving at an appropriate child support order.
Child support may be modified three years after the entry of the last order of support.
Otherwise, child support can be modified, prior to the expiration of three years after the entry of the last order, only if a substantial change in circumstances has occurred. Substantial changes of circumstance would include things such as the loss of a job, a change in parenting rights, etc.
Any agreement between parties to modify child support (either upward or downward) should be in writing and filed with the Court; otherwise, it may not be enforceable by the Court in the event of a future dispute.
No. The Courts no longer have authority to order either party to contribute toward a child’s college education.
Yes. The Court has the discretion to award alimony. In determining whether an alimony award is appropriate, the Court will consider whether the spouse requesting alimony has a financial need and whether the spouse from whom alimony is sought as the financial ability to pay. If the Court finds there is a need for alimony and an ability to pay alimony, the following are some of the factors that the Court will consider in determining the amount and duration of the alimony award:
• The length of the marriage;
• The age and health of the parties at the time of the divorce;
• The ability to earn income of each spouse;
• Future financial prospects of each spouse;
• The parties’ respective contributions during the marriage; and
• Fault grounds for the marital breakdown.
Unlike child support, which is oftentimes calculated based upon a mathematical formula, there is no such formula for calculating the amount and duration of alimony.
In New Hampshire, property is defined as all tangible and intangible property and assets belonging to either or both parties. In the first instance, the Court presumes that an equal division of property is equitable. The Court has the discretion to order an unequal division of property if it concludes that an equal division would not be appropriate or equitable. Any one or more of the following factors, if found by the Court to exist, could result in an unequal property division:
• Duration of the marriage;
• Age, health, occupation, employability of each spouse;
• The ability for future acquisition of assets or income;
• The custodial parent’s ability to become gainfully employed;
• The need of the custodial parent to remain in the marital residence;
• The actions of either party relative to the growth or diminution of assets;
• Significant disparity in each spouse’s contributions, both financial and homemaking;
• Tax consequences of the property division;
• The value of property acquired to the marriage or subject to a valid prenuptial agreement;
• The fault of either party; and
• Any other factor the Court considers relevan
The manner in which an asset is owned—i.e., in one spouse’s name instead of jointly held—does not exclude it from being considered property subject to division in the divorce. For example, if your spouse accumulated a pension benefit during the course of the marriage, you have a marital interest in the pension benefit even though ownership of the asset is held in your spouse’s individual name. Likewise, if the deed to the marital residence is held in one spouse’s name, the other spouse still has a marital interest in the equity accumulated in the property. While other factors may impact how the Court divides the assets, the manner in which an asset is owned, or title to an asset is held, is not determinative.
Fair market value is the standard by which assets are values. The Court does not use replacement value, retail value, or trade-in value. Oftentimes, parties will need to have assets appraised to determine fair market value.
Yes. New Hampshire will recognize prenuptial or antenuptial agreements. However, the validity of such agreements are oftentimes challenged once the divorce begins. If a spouse challenges the validity of the prenuptial or antenuptial agreement, some of the factors it will consider include:
• The length of the marriage;
• Whether both parties were represented by attorneys in drafting and negotiating the terms of the prenuptial or antenuptial agreement;
• Whether both parties fully disclosed their financial circumstances at the time the prenuptial or antenuptial agreement was executed;
• Whether both parties executed the prenuptial or antenuptial agreement freely and voluntarily; and
• Whether enforcing the terms of the prenuptial or antenuptial agreement would produce a grossly unfair result to one party.
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