Recent Changes to the Law

Parental Responsibility (Custody)

In an effort to keep the focus on children, the NH Legislature adopted a major change in custody law. The concept is no longer referred to as “custody right” over the children. Rather, the courts now use the term of “Parental Responsibility” for custodial time and “Parenting Time” for visitation time. The notion is that children are not a property right for which one parent possesses to the exclusion of the other parent. Rather, caring for children is a responsibility that should be shared by both parents, even after divorce.

I received good advice from an attorney who really cared about me. They were more than just lawyers.
— Divorce Client

If the dad was the more stay at home parent and he would usually be considered the parent to be awarded “primary custodial rights,” he now would have primary “parental responsibility” for certain time periods and mom would have “parental responsibility” for other time periods. The goal is to minimize the use of children as pawns and to always consider the best interest of the children and not simply the “rights” of the parents. The new orders also need to address the legal address of the children for school purposes, etc. When a parent wants to move whereas a parent may not move long distances away with proper advance notice to the other parent. The non moving parent would have a right to petition the court to demonstrate that there is no compelling reason for the move and that the parent/child relationship with the non moving parent would be impaired.

Custody Modification

The previous standard of “strong possibility of harm” has been modified to provide that custody may be changed if there is clear and convincing evidence that child’s present environment is detrimental to the child’s physical, mental or emotional well being. In shared custody arrangements, if both parents assert that there should be a change in custody, the standard for modification is best interests of the child.

College Expenses

As part of a divorce decree or custody order, the court can no longer order parents to pay for their children’s college. It remains to be seen whether the court will uphold a prior Permanent Stipulation which addressed payment of college cost.

Child Support

The court cannot order child support or payment of educational expenses for adult children.

Miscellaneous Expenses

The court can no longer order a non-custodial parent to pay for a child’s miscellaneous expenses.


Custody and Visitation – Where Do I Start?

Petition for Divorce

A divorce is commenced with the filing of a Petition for Divorce. The person filing the Petition is known as the Petitioner, while the other party is known as the Respondent.

The Petition for Divorce sets forth some basic facts about the parties such as names, addresses, dates of birth, whether there are any children born to the parties, what property and debts exist, and the grounds upon which the divorce is being sought. The Petition also includes what is known as the “prayer for relief” which is what the Petitioner is asking the court to do regarding the children, division of property and debts, and spousal support.

Depending upon the county in which the Petitioner lives, the Petition will be filed either in the Superior Court or in the local District Court’s Family Division. In order for the divorce to be filed in this State, New Hampshire must have jurisdiction over the parties and over the alleged cause of action.

Once the Petition has been filed and assigned a docket number by the court, the Respondent must be served with notice that the Petition has been filed.

Once served with notice, the Respondent then has the opportunity to file what is known as an “Answer” to the Petition for Divorce. This also gives the Respondent the opportunity to let the court know what relief he or she is asking for.

Note: The process for obtaining a legal separation is the same process as obtaining a divorce.

Grounds

The court can grant either a “no fault” or a “fault” divorce. A no fault divorce can be granted on the basis that Irreconcilable Differences have caused the irremediable breakdown of the marriage, without assigning blame to either party.

There are thirteen different grounds for which a fault divorce can be granted, including adultery, extreme cruelty, habitual drunkenness, abandonment, and conviction of a crime which leads to imprisonment for greater than one year.

In order for the court to grant a divorce based on fault grounds, the party alleging fault must be able to prove the allegations of fault and that the fault was the cause of the breakdown of the marriage and that the non-faulting party suffered emotionally or financially as a result.

While seeking a divorce based on Irreconcilable Differences is simpler and faster than proceeding on fault grounds, the finding of fault can have an effect on the property division and on an award of alimony.

Temporary Hearing

At the request of either party, the court will schedule a Temporary Hearing. A Temporary Hearing is a preliminary hearing that is usually held approximately 8 weeks after the date the Petition for Divorce is filed.

The purpose of the Temporary Hearing is to establish temporary orders or “rules” for the parties to live by, pending the finalization of their divorce. These temporary orders will deal with issues including custody, visitation, child support, spousal support, health insurance, deciding who will remain in the marital residence pending the divorce, and who will be responsible for certain bills and debts.

While these orders are made on a temporary basis, they can be very important as the temporary orders often lay the foundation for what the court’s final determination might be.


Alimony/Spousal Support

Upon the request of either party, the court can make a temporary order and a final order for alimony for either a definite or indefinite period of time. This request must be raised in the pleadings. The court can award alimony when it has found that:

The party in need lacks sufficient income, property, or both, including property apportioned in accordance with [the property distribution statute], to provide for such party’s reasonable needs, taking into account the style of living to which the parties have become accustomed during the marriage; and
The party from whom alimony is sought is able to meet reasonable needs while meeting those of the party seeking alimony, taking into account the style of living to which the parties have become accustomed during the marriage; and
The party in need is unable to be self-supporting through appropriate employment at a standard of living that meets reasonable needs or is the custodian of a child of the parties whose condition or circumstances make it appropriate that the custodian not seek employment outside the home.

N.H. RSA 458:19, I.

In deciding how much alimony to award, the court will consider a number of factors including length of marriage, age and health of the parties, the parties’ occupations, amounts and sources of income, property awarded to either party, vocational skills and employability, the opportunity of each party to acquire assets in the future, and the fault of either party as defined by the statute.


Spousal Support- Is Alimony in New Hampshire Dead?

Recent court decisions and legislative actions have suggested that spousal support is not an automatic expectation in a divorce and that divorcing parties, when able to, are expected to get a job and help to support themselves, in most instances. Where a spouse has historically been supported and continues to have a need for spousal support while the other spouse has an ability to pay said support, it is common for spousal support to be awarded for a finite period of time and for a vocational rehabilitation plan to be established so that the supported spouse could find a way to move on with his/her life economically.

While it is frequently small consolation, spousal support payments made by the supporting spouse are tax deductible. They must be included as income for the spouse receiving the support

Finally, all circumstances are different and careful preparation with your attorney during the divorce process is important.


Property Division

The division of property pursuant to a divorce shall include all property, real or personal, tangible or intangible, whether held in one or both parties’ names. This includes pensions, vested or non-vested, and employment and retirement benefits. This also includes property owned prior to the marriage.

There is a presumption that property shall be divided equally unless either party can demonstrate otherwise. Factors that the court will consider in deviating from an equal division include the length of the marriage, the fault of one party leading to the breakdown of the marriage, the opportunity of each party for future acquisition of assets, the contributions of the parties to the marriage, including contributions to the care and education of the children and to the education and career of the other party.

Final Resolution

In many cases, the parties are able to reach a settlement on all the issues related to their divorce. In these cases, once they have signed and submitted a Permanent Stipulation (written settlement agreement) and the necessary financial paperwork to the court, they can proceed to a Final Uncontested Hearing.

If the parties are not able to reach an agreement on some or all the issues, the court will eventually schedule a Final Contested Hearing. This hearing is the opportunity for each party to present evidence supporting their side of the issues and supporting their requests for relief. The court will then weigh the evidence and issue a ruling on the outstanding issues.

If either party disagrees with any part of the court’s Final Decree of Divorce, they have 10 days from the date of the Clerk’s Notice of Decision in which they can file a Motion to Reconsider.


Parental Responsibility (Custody) / Child Support

The amount of child support is determined by the use of a statutory formula known as the Child Support Guidelines. This formula takes into account the number of children to be supported as well as the combined income of the parties, considering certain allowable deductions.

Parental Responsibility (Custody)

NH has completely altered the former concept of child custody and visitation by adopting the concept of “parental responsibility.” Here the goal sought to be achieved by the state legislature would be to alter the traditional notion held by some that “child custody” was a right to the exclusion of the non custodial parent.

Now, in NH, to the extent reasonably possible, both parents must participate in the major parental decisions of the children. The parent, who historically would have been awarded custody because that parent provided the most stable environment for the child or historically was responsible for most parenting activities, would now be deemed to have “parental responsibility” over the child or children during specific times. The other parent who historically would be awarded “visitation time” now is also awarded “parental responsibility” during his or her “parenting time.” While, in fact, the traditional notions of one parent being primarily responsible for the day to day parenting decisions of the child continue. The parenting orders, however, recite significant “parent responsibilities” and the need for “parental cooperation”.

Child Support

While the parental responsibility concept requires that both parents be afforded the opportunity to have significant parenting time with the children, if appropriate, and both parents are required to cooperate, as much as possible, to make joint parental decisions on major issues, the concept of child support is still governed by the former “primary custody” concept. Accordingly, unless there are significant reasons to deviate from the NH Child Support Guidelines, the courts generally look at the parenting agreement or parenting order to see who is responsible for the child on a day to day basis. That parent is generally awarded child support from the other parent. If the co-parenting arrangement, however, provides for significant parenting time with both parents, then the courts has legal authority to deviate from the Child Support Guidelines.

There is a presumption that the amount dictated by the Guidelines is the appropriate amount and the court will only deviate from the formula under certain circumstances. Examples of these circumstances are: extraordinary health or education expenses of a child; significantly high or low income of a party; the presence of stepparents or stepchildren; extraordinary travel expenses for visitation; and shared or split custody. There are a number of other reasons or “special circumstances” which the court can consider in deviating from the Guidelines amount for child support.


Post Divorce Modifications

Modification

Whether or not the court will modify any part of a Final Decree/Order will depend upon the subject of the modification.

Parental Responsibility

Parental Responsibility is open for modification as well, however, it is usually very difficult to do so. In order for the court to modify a final parental responsibility order, the party seeking modification must show by clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental or emotional health.

Child Support

The provisions of the decree pertaining to child support can be modified every three years without cause, or sooner upon a showing of a substantial change in circumstances. This change must be such that it would render the original order improper or unfair.

Parental Responsibility and child support can also be modified by agreement of the parties, but they must file their written agreement with the court so that the modification can be issued as a new order. An agreement to modify which hasn’t been filed with the court may not necessarily be upheld by the court at a later date.

Property Division

The provisions pertaining to the division of property will not be modified unless there can be shown circumstances involving fraud, undue influence, deceit or misrepresentation.

Alimony/Spousal Support

Alimony can be modified if it is determined that there has been a change in circumstances of the parties that would make the continuance of the present order “improper or unfair.” Alimony is always open for modification even if the original decree did not provide for an award of alimony.


Grandparent’s Rights

Grandparents may petition the court which has jurisdiction over the divorce, separation or other such action being brought or, in certain cases the court in the county where the grandchild resides, for reasonable rights of visitation.

In determining whether or not to order grandparent visitation, the court will consider the following criteria:

Whether such visitation is in the best interests of the child; whether such visitation would interfere with the parent-child relationship;
The nature of the relationship between the grandparent and the child including whether the grandchild has resided with the grandparent,
The frequency of contact,
Any chance that the health and safety of the child would be endangered by visitation with the grandparent or lack of it;
Any friction between the grandparent and the child’s parent and the effect it would have on the child;
The circumstances leading to the petition; any Guardian ad Litem recommendations;
Any preferences expressed by the child; and any other relevant factors.


Guardianship of Minors

The Guardianship of Minors law provides for the appointment of a non-parent as guardian over a child. The court can appoint a guardian with the consent of the parents or upon a showing that substitute or supplemental parental care and supervision is needed to provide for the essential physical and safety needs of the child, or to prevent specific, significant psychological harm to the child.

The guardian can be a relative or a non-relative and will have the authority and responsibilities that a parent would have with respect to the child’s support, care and education.

The guardianship of a minor remains in place until the parties consent to its termination or upon a showing that the substitute or supplemental care and supervision is no longer needed, and that the child’s psychological well-being will not be adversely affected by the termination of the guardianship.


Divorce Coaches

A recent trend has emerged designed to assist people with the stressful aspects of divorce. People are turning to Alternative Dispute Resolution, collaborative law, divorce mediation, and divorce coaches in an effort to minimize bad feelings and resentment that often come with divorce. Judges sitting in divorce cases routinely require mediation or some other dispute resolution attempt. During mediation, new resolutions may emerge, communication may overcome previous roadblocks, or important concessions may pave the way to a less hostile endpoint between the parties. As with all negotiations, good faith bay all parties and access to complete legal council greatly improves the potential for success. Healthcare practitioners have begun working with attorneys as “divorce coaches” in a collaborative effort to keep people both physically and emotionally healthy throughout the divorce process. At Normand | Higham, you’ll find competent counselors and seasoned collaborative practitioners – as well as tough negotiators who will advance your positions.


Civil Unions Now Marriages in NH

NH is one of a half dozen states that has adopted marriage equality for same-gendered couples. The new law, effective January 1, 2010, sates that same-gendered couples have the same rights, obligations and responsibilities as other couples under NH state law. Prior to January 1, 2010, the same holds true to couples who formally entered into “civil union.”

Therefore, joining couples with other families, assets and concerns may want to consider pre-marital agreements, ante-nuptial agreements, estate plans and other legal documents to document their understanding. Where no legal documents are in place, NH state law controls the distribution of assets upon death, for example, and NH Divorce law controls the division of assets upon separation.

Our office has represented individual in same-gendered unions and in same-gendered divorces. It is important to know your individual legal rights.


Protection from Domestic Violence

In addition to restraining orders that may be granted in Family Court pursuant to Divorce or other Family Law legal actions, Family Courts and Local District Courts may grant an emergency Domestic Violence restraining order when a family or household member is in danger of immediate abuse. They are used for immediate protection and safety and usually lead to the alleged abuser being escorted out of the house by the police.

The final order will also be listed in the National Database to assure interstate enforcement. Such registration may also have adverse employment ramifications in certain occupations and may affect ability to pay reasonable child support and alimony. But, financial considerations should always be secondary to the safety of you and your family.

This office will vigorously pursue Domestic Violence orders to prevent immediate abuse to our clients. We also will vigorously defend against a Domestic Violence Petition when we feel that it was filed simply as a Family Court trial tactic to gain an unfair advantage. False statements made in filing the Petition may be subject to criminal penalties.

Most importantly, keep you and your family safe, know your legal rights and consult with a Family Law professional to address your individual circumstances.

Sample Divorce Cases