Ross v. Ross: Celibacy pending adultery claim

On August 23, 2016, the New Hampshire Supreme Court issued an opinion in Ross and Ross. It is a fascinating case about adultery and new relationships during a divorce. The outcome is a cautionary tale for persons seeking fault grounds for divorce.  

The Facts

Husband and wife met in dental school and later married. Husband, who had his own endodontist practice, helped his wife open and build her orthodontist practice. Considerable money was put into the venture. The couple separated the day that husband discovered wife was having an affair with another dentist. Wife filed for divorce 5 days after the parties separated alleging both fault and irreconcilable differences as grounds. Husband cross-petitioned for divorce on fault-based grounds, due to the wife’s alleged adultery and irreconcilable differences. The parties had been married for 9 years at the time they filed for divorce.

Approximately 11 months after the divorce was file, husband began a sexual relationship with the ex-wife of the dentist wife was dating. Wife filed a motion to dismiss the adultery grounds pled against her. She argued the defense of recrimination, or in other words that the husband was no longer an “innocent spouse” because of his own adultery. The trial court agreed with wife and dismissed the husband’s fault grounds. The trial court issued a decree of divorce based on irreconcilable differences that divided the property with an intent to split it equally.

The Appeal

Husband appealed the dismissal of the fault-based ground in his cross-petition for divorce, arguing that his sexual relationship, which occurred eleven months after the parties’ separation, could not be used as a basis for the defense of recrimination. Husband asserted that such a holding would require parties to remain celibate during years of litigation in a contentious divorce. Wife argued the trial court did not err in granting the motion to dismiss because the respondent was not an “innocent party” within the meaning of the statute. RSA 458:7 (2004).

The Court examined RSA 458:7, which states that a divorce “shall be decreed in favor of the innocent party.” The statute requires that one be an “innocent party” at the time of the decree. The statute makes no exception for fault based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition. Therefore, the trial court correctly considered Husband’s post-petition conduct when deciding the motion to dismiss.
The Court further stated the fact that Husband’s adultery did not lead to the breakdown of the marriage does not bar recrimination as a defense, stating “Causation is not an element of the defense of recrimination.”

The Court affirmed the trial court’s decision to dismiss the fault grounds and grant a divorce on irreconcilable differences.

The Takeaway

The conclusion of husband’s brief, artfully written by Attorney Joshua Gordon, argues: “It is not reasonable to suggest, in these times of protracted discovery and litigation, that a party to a divorce must remain celibate for the duration of the proceedings – here already longer than four years.” I happen to agree with him. Litigation can be a long and arduous process. While most divorces will settle within 6 months to 1 year, a small percentage can drag on. The longest divorce I have seen from start to finish has been 5 years. That is a long time to wait to date.

Why pursue the adultery grounds in the first place? It appears in this case that there was some significant bad blood between the parties. Husband had helped wife open her orthodontic practice and contributed financially and emotionally to that endeavor. In return, wife carried on an affair with a colleague for approximately five years. Wife changed the locks to the house two days after husband left. Husband may have been pursuing the emotional victory of a fault based divorce for wife’s cheating.

Husband may also have been pursuing the adultery grounds for the financial benefit. RSA 458:16-a, II provides that a court may divide property unequally when it would be appropriate and equitable to do so after considering one more of the statutory factors. One of the factors reads:  “The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and: (1) Caused substantial physical or mental pain and suffering; or  (2) Resulted in substantial economic loss to the marital estate or the injured party.” With the dental practices, marital home and savings and investments on the line, an uneven split make a substantial difference in the outcome.

However, in my experience, most judges are not persuaded to award a significantly higher portion of the property to the “innocent spouse,” even if they can prove that the adultery caused the breakdown of the marriage and substantial economic loss to the marriage or injured spouse. More than a 45/55 split without other contributing factors would be unusual.

The moral of this story is that there must be a careful cost benefit analysis when filing adultery. Is the litigant willing to remain celibate no matter how long the litigation takes? Is there substantial property up for division that would make even a small deviation from 50/50 worthwhile? Is the time, money and celibacy for a finding that the other spouse cheated sensible?

 

What is Marital Property?

In my years practicing family law, I have heard a lot of misconceptions about what is marital property. While the definition of marital property may differ between states, in New Hampshire marital property is anything and everything owned by the parties.

I hear questions such as "Only my name is on the house, so that is off the table right?" Wrong. It does not matter how the house is titled. It can be in either name individually or owned jointly. Another statement often made is "I owned the house before the marriage so I get to keep it." This is also wrong. It does not matter when or how the property was purchased, everything goes into the pot to be divided.

The definition of marital property is found at RSA 458:16-a. The statute states:

Property shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans' disability benefits.

However, just because everything is subject to division by the courts, that does not mean that it will be. RSA 458:16-a also says that the court can deviate from an equal division based on variety of factors, including the length of the marriage, what property was owned prior to the marriage, and the contributions of each party to the marital property. Each case is based on the specific facts and circumstances of the couple.

IMO Sheys and Blackburn: Can New Hampshire maintain jurisdiction over a child when it is no longer the home state?

The New Hampshire Supreme Court issued its opinion In the Matter of Mary Sheys and Eric Blackburn on July 15, 2015. 

The Facts

Mother and father married in 2005. They had two children during their marriage. When they divorced in New Hampshire in 2009, the parties agreed on a parenting plan providing mother with primary residential responsibility. Father exercised parenting time every other weekend, two afternoons per week and two weeks in the summer. In January 2013 mother told father she was relocating to Natick, Massachusetts with the children to take a new job after having been unemployed since November 2012. Mother moved the following month in February 2013. After the move, father filed in New Hampshire for primary residential responsibility and contempt. The 9th Circuit – Family Division – Manchester denied the father’s requested relief and entered a new parenting plan providing father with parenting time on alternating weekends, summers, school vacations and time in Natick as the father was available.

In December of 2013 father again asked the court to modify the parties’ parenting plan. Mother asked the court to dismiss the matter as she and the children had been residing in Massachusetts for over a year and she had already filed a motion in the Massachusetts Probate & Family Court to modify the parties’ divorce decree and parenting plan. The court granted mother’s motion to dismiss finding that it was appropriate for the court to decline continuing jurisdiction over this matter because mother and the children no longer had a significant connection with the State of New Hampshire.

The Appeal

The father appealed arguing that the trial court erred when it ruled that the children did not have a significant connection with New Hampshire

The Holding

As a matter of first impression, the New Hampshire Supreme Court held that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) New Hampshire had continuing exclusive jurisdiction to deal with the post-divorce parenting matters. The Court agreed with the majority of jurisdictions in finding a child has a “significant connection” with New Hampshire when one parent still resides in state and exercises more than de minimis parenting time in New Hampshire. The Court noted that although the mother asked the Court to affirm on the alternative grounds of inconvenient forum, this issue was never argued and the trial court never considered it.

The Takeaway

This case provides clarification that New Hampshire will continue to hear parenting matters even after New Hampshire is no longer the “home state” of the child. The UCCJEA takes a broad view. The opinion notes that most states have determined that the “significant connection” requirement in the act can be met so long as the parent that remains in the state exercises some parenting time. For example, a Georgia court found a significant connection for parenting time that was exercised every other weekend and 8 weeks in the summer. Here, the Father exercised parenting time in New Hampshire on alternating weekends, two non-consecutive weeks in the summer, five days during April vacation in even years and five days during February vacation in odd years.

This holding may make it more difficult for a custodial parent to litigate from their new state. However, the Court left open the issue of whether New Hampshire may be an inconvenient forum under RSA 458-A:18. Custodial parents may still be able to transfer the case to their new state with an inconvenient forum argument.

 

Guardian ad Litem Reports are Confidential

After you receive the GAL report and read it, your first instinct might be to share the document with family, friends and perhaps professionals such as therapists or teachers. It is important to hold back on this urge because the GAL report is confidential.

Circuit Court Rule 2.15 states: “Written reports of the guardian ad litem shall be kept in an envelope marked confidential within the court file, and shall only be disclosed to parties or attorneys to the action.” The GAL Report is not part of the public court file that is accessible to any person with enough curiosity to travel to the courthouse to review the file. Thus, makes sure you obtain either agreement from any other party to the case or a court order allowing the GAL report to be disseminated.

Spenard: Voluntary Unemployment, Financial Affidavits and Post-Trial Evidence

In the Matter of Susan Spenard and David Spenard was decided on October 17, 2014

The Facts
Husband and Wife married in 1998. During the marriage the Husband worked in real estate and owned several businesses and the Wife worked as an entertainer. Before the parties’ divorce decree was issued, the Husband sold a promissory note that he had failed to disclose on his financial affidavit. During the divorce trial, the Wife argued that she could no longer work at all due to medical issues. She failed to present any expert testimony to back up her claim, however, and the Court found that she was voluntarily unemployed. The Wife filed a Motion to Reconsider and sought to present new evidence of her medical issues. The Court denied her Motion.


The Appeal
The Wife appealed on three grounds. First, the Wife argued that RSA 458-C:2 requires an express finding of under or unemployment when presented with evidence supporting such a claim. Second, she argued that the lower Court erred in refusing to reopen her case based on her newly discovered medical evidence supporting her claim that she cannot work. Third, the Wife argued that the Husband’s promissory notes were marital property, and, therefore, subject to equitable distribution.

The Holding
First, the Court held that whether or not a party is voluntarily under or unemployed is a question of fact for the fact-finder, and RSA 458-C:2 does not require an express finding of voluntary under or unemployment when presented with evidence of such a claim. Second, the Court held that a party who seeks to reopen a case to submit new evidence must demonstrate that s/he was not at fault for failing to present such evidence at the hearing. Mere difficulty or financial expense of obtaining such evidence is not sufficient to overcome this burden. Third, the Court held that promissory notes are marital property and thus must be listed on financial affidavits and are subject to equitable distribution.

 

Courthouse Divorce File: What's Private?

“All human beings have three lives: public, private, and secret.” 
― Gabriel Garcí­a Márquez, Gabriel García Márquez: a Life

The public thirsts for gossip, apparent in websites like TMZ and Perz Hilton. Celebrity splits are big news such as Tom Cruise and Katie Holmes to Mariah Carey and Nick Cannon. While most of us do not enjoy celebrity status, the small town rumor mill can be just as virulent as celebrity gossip. Divorce litigants should beware the rules regarding public access to their divorce file. Anyone can head down to the local courthouse and view all the happenings in the neighbor's divorce or co-worker's custody battle.  

The prominent case on this issue is the Petition of Keene Sentinel issued by the New Hampshire Supreme Court on August 27, 1992. During the 1990 political campaign for New Hampshire’s Second congressional seat, The Keene Sentinel sought to gain access to one of the incumbent’s, Charles Douglas III’s divorce records. The clerk granted the Keene Sentinel only some of the divorce records, citing privacy concerns. The Keene Sentinel brought suit and Charles Douglas III sought to intervene, asking the Superior Court to dismiss the suit. The Superior Court ultimately denied the Keene Sentinel’s request.

The Keene Sentinel appealed, arguing that “disclosure should have been permitted pursuant to RSA chapter 91-A, the Right to Know Law.” The Supreme Court held that a party in a divorce proceeding cannot have the records sealed simply for the sake of general privacy concerns.  The Court held that “[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists.” If a trial judge does make such a determination, it must use the least restrictive means available to secure the parties’ privacy rights.

This generally requires that the orders, pleadings and other materials in the file are open to the public for viewing. An exception is a financial affidavit. A party is required by the court to complete and submit a sworn financial affidavit, detailing all income, property and debts. This document usually contains very personal information such as social security numbers, bank information and paystubs. Family Division Rule 2.16 and RSA 458:15-b requires financial affidavits to be confidential for non-parties. In practice, this means that the court file contains an envelope which the clerk will remove if you are not a party to the case. Financial affidavits filed in divorce, legal separation, annulment, or parenting petition cases shall be confidential to non-parties. Access to such financial affidavits shall be pursuant to Family Division Rule 1.30. However, a person not otherwise entitled to access may file a motion under Family Division Rule 1.30 to gain access to the financial affidavit. 

The Associated Press v. NH gives some context to the rule regarding financial affidavit confidentiality. The New Hampshire Supreme Court issued its holding in this case on December 30, 2005.   After RSA 458:15-b took effect on August 10, 2004, which, inter alia, made financial affidavits in divorce proceedings only accessible to parties to the proceeding and their attorneys of record, the Associated Press filed suit claiming the law was unconstitutional. The Associated Press argued that the law “violated the public’s right of access to court records” under the State Constitution, and that it was an impermissible restraint on freedom of speech per the State and Federal Constitutions.  The trial court determined that the law was not unconstitutional, and dismissed The Associated Press’ suit. The Associated Press appealed the trial court decision, arguing that the trial court erred in finding that the law was constitutional.

 The Supreme Court agreed with the trial court, and finding RSA 458:15-b constitutional. The Court ruled that although the public has a right to access government documents, including court documents, the right is not unlimited.  It opined that "the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified,” which included the compelling interest to prevent exposing divorce litigants to identify theft and fraud. The Court’s ruling was narrow, however, and only applied to keeping financial affidavits sealed. 

In general, the Court may upon request consider keeping confidential case-related materials for collateral cases that are already confidential pursuant to New Hampshire law. These include termination of parental rights, adoption, juvenile criminal records and abuse/neglect cases and DCYF records.  

 

Maves and Moore: What Constitutes Income for Child Support Purposes?

The New Hampshire Supreme Court issued in the Matter of Janice E. Maves and David L. Moore on August 14, 2014

The Facts

Husband and Wife divorced in 2004.  At the time of the divorce, Husband was awarded the parties’ Farm, which was initially used as a commercial campground and contained condos that were rented seasonally. The Farm was an S-type corporation, with Husband as primary shareholder.  At the time of the divorce, Husband was ordered to pay $650 per month in child support for their only child, which was increased to $950 in 2008.  The parents shared parenting time.

In 2011 Husband changed the Farm’s business model to condo sales.  As a result, the Farm’s 2011 tax return showed an income of $1,000,389 as capital gains.  Husband gave himself a line of credit from the corporation.  As a result of the increase in the Farm’s capital gains and the extended line of credit, Wife sought an upward modification of child support based on materially changed circumstances.  Husband argued that capital gains are not income for the purposes of child support, and even if they were, the Farm, not Husband, earned the capital gains.  Family court disagreed with Husband and increased his monthly child support payments to $2,411.  The Court also ordered Husband to pay $9,644 in arrears.  The Court based this finding on a conclusion that the Farm’s capital gains were irregular income that should be included in Husband’s gross income.  The Court used Husband’s adjusted gross income to calculate support.

The Appeal

Husband and Wife both appealed.  Wife argued that the line of credit should be counted as income, the capital gains should be “regular” income, and family court should have used gross income minus legitimate business expenses in determining Husband’s income, not adjusted gross income.  Husband argued that the Farm’s capital gains were not his income or personal profits, the Farm was part of the divorce settlement and therefore not able to be the basis for child support payments, that capital gains were not income for the purposes of child support calculations, and that the amount he was ordered to pay was grossly excessive.

The Holding

The Supreme Court held that capital gains are considered income for the purposes of child support calculations. The Court also held that the line of credit was not income, because “[t]he capital gains were treated as [Farm] funds, which, in turn, [Husband] drew down as a line of credit.”  The Court further held that although the Farm was awarded to Husband as part of a property settlement, it was a business, and therefore any capital gains were income for child support purposes.  Lastly, the Court held that courts should not solely rely on a payer’s adjusted gross income on tax returns to prove income.  Rather, the Court held that the “proper measure of gross income is to deduct legitimate business expenses from business profits.”

The Takeaway

There have been many cases over the years arguing about what income may be used for child support purposes. It is worth reading the definition provided in RSA 458-C:2,IV.   

"Gross income'' means all income from any source, whether earned or unearned, including, but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, alimony, business profits, pensions, bonuses, and payments from other government programs (except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security income, food stamps, and general assistance received from a county or town), including, but not limited to, workers' compensation, veterans' benefits, unemployment benefits, and disability benefits; provided, however, that no income earned at an hourly rate for hours worked, on an occasional or seasonal basis, in excess of 40 hours in any week shall be considered as income for the purpose of determining gross income; and provided further that such hourly rate income is earned for actual overtime labor performed by an employee who earns wages at an hourly rate in a trade or industry which traditionally or commonly pays overtime wages, thus excluding professionals, business owners, business partners, self-employed individuals and others who may exercise sufficient control over their income so as to recharacterize payment to themselves to include overtime wages in addition to a salary. 

 

It is certainly an interesting argument to make that income derived from a business awarded to a party in a divorce is not income for the calculation of child support but rather property settlement. It was doomed to fail though, as the result would produce absurd result. Any self-employed person would avoid having their income considered for child support. A person’s investments that derive income would similarly be discounted. The intent and plain meaning of the statute is to capture all income for the purposes of child support. 

 

In Re Serodio and Perkins: You May Enforce a Prenup without a Copy of the Prenup

In the Matter of Cheryl Serodio and Arthur Perkins: Existence of Prenuptial Agreements can be proven without providing the written, executed agreement. The New Hampshire Supreme Court issued its opinion on August 22, 2014.

The Facts

Wife filed for divorce from Husband in 2010.  In 2011, Husband filed a motion to have a prenuptial agreement enforced.  Husband did not present the family court with a copy of the agreement with Wife’s signature, because he alleged that Wife held the sole, signed copy, and she had lost it. Wife filed a motion to dismiss Husband’s claim, arguing that she never signed a prenuptial agreement.  Wife also argued that even if she had signed a prenuptial agreement she did not do so voluntarily because she was coerced.  The trial court granted Wife’s motion to dismiss.  The trial court granted Wife’s motion on two grounds.  First, the Court held that a prenuptial agreement that is not signed by the party charged is unenforceable.  Second, the Court stated that even if the parties had an oral prenuptial agreement, oral prenuptial agreements are unenforceable.

The Appeal

Husband appealed and argued that the trial court did not apply the correct standard of review to Wife’s motion to dismiss. He argued that the real issue that trial court should have considered was whether a properly executed agreement existed before he and Wife were married, not if the properly signed agreement existed now.

 The Holding

The Supreme Court agreed with Husband and reversed the family court’s decision.  The Court held that, while RSA 506:2 requires that any agreement made in consideration of marriage be in writing, the actual writing need not be produced to prove its existence.  A Court can find that a prenuptial agreement existed based on extrinsic evidence, including testimony.

The Takeaway

Make sure you keep your important documents such as prenuptial agreements and estate plans in a safe place. Upload a copy to your icloud, give a copy to several relatives, or keep it in a safety deposit box. The good news is that the Perkins holding will allow you to attempt to enforce the prenup anyway. The bad news is the effect of not being able to produce a copy of the agreement is a very expensive trial. 

 

 

Norberg v. Norberg: Alimony Cannot Be Waived By Agreement

When negotiating a settlement, it is important to keep in mind that New Hampshire law does not allow parties to waive future alimony. The 1994 case of Norberg v. Norberg is controlling. It explains that although property division is not modifiable, alimony is an entirely different matter. Even if the parties enter into an agreement that expressly waives their right to seek alimony, the court retains the authority to revise its orders under RSA 458:14

How this factors into settlement negotiations will depend on the facts of your case. First, whether you go to trial or reach a settlement, the court will retain the authority to modify alimony. It should be carefully considered when providing the other party with  a larger division of the assets or taking on additional debt in exchange for a reduced term or amount of alimony. Knowledge of the standards for modification, especially in light of the recent Lyon decision, will also be important to come to a knowing and voluntary settlement. 

In Re Lyon: Extension or Renewal of Alimony to be Made as Justice Requires

On May 30, 2014, the New Hampshire Supreme Court issued an opinion In the Matter of Lyon. This decision clarifies the standard to be applied in requests to extend or renew alimony. 

The Facts

Husband and Wife divorced in May 2007. They entered into a permanent stipulation that was incorporated into their divorce decree that required Husband to pay to Wife $3,000 per month in alimony from January 1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1, 2007, through June 30, 2012, “or until the death of either party, whichever first occurs.”

A month before the scheduled termination of the alimony, the Wife petitioned for an additional three years. She alleged that her newly diagnosed attention deficit hyperactivity disorder necessitated an extension of alimony so that she could afford her medication and finish her education. The Husband filed a Motion for Summary Judgment, arguing that the Wife had failed to establish an unanticipated or unforeseeable substantial change in circumstances. The trial court granted the motion and dismissed the petition.  

The Appeal

The Wife appealed and argued that the trial court erred by applying the standards that govern a motion to modify alimony to her petition to extend. Although the standard to modify required a person to prove that a substantial change in circumstances had occurred since the original award that made the amount of alimony either improper or unfair, she argued that she was not required to meet that test. Instead, she said that she was subject to the same standard as an initial award of alimony.

The Holding

The Supreme Court held that when a party seeks to extend or renew, either in modified or unmodified form, “the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount[,] . . . in the light of all the circumstances then existing.”

The Takeaway

The standard articulated in the Lyons decision will be easier to meet for alimony recipients as opposed to a substantial change in circumstance test.  This has the potential to create a chilling effect a person’s willingness to agree to pay alimony as one can be less certain of the end date for the payments. Even so, the recipient must still prove that justice requires an extension. While the facts do not require a substantial change in circumstances, it seems likely that the trial court would still examine all of the circumstances to determine why, if short term alimony was awarded, the recipient has not put him or herself into a position to be self-supporting.

 

Unmarried Parents Get Equal Protection for New Hampshire Appeals

Miller v. Todd, a parenting case between two parties who were never married, raised the issue of whether Supreme Court Rule 3 is unconstitutional because it treats married and unmarried parents differently for the purposes of an appeal. At the time, only parents who were married were entitled to a mandatory appeal from an initial determination of parental rights and responsibilities. A mandatory appeal provides that the case “shall be accepted by the supreme court for review on the merits.” Although an appeal from a final divorce decree or final decree on legal separation is a mandatory appeal, an initial determination of parental rights and responsibilities between unmarried parents was not.

In Miller v. Todd the Supreme Court declined to address the issue by declaring it moot. In other words, because the Supreme Court had accepted the father’s discretionary appeal for review, the issue was purely academic because he had not been harmed by having his appeal declined. The Court noted, however, that “any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.”

On April 4, 2014, the Supreme Court adopted new rules, including an amendment to Supreme Court Rule 3 that now provides a mandatory appeal for “the first final order issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A).” The comments to the new rules identify the change results from the claim raised in Miller v. Todd that “providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents raises constitutional concerns."

Collecting electronic evidence: Is it Legal and/or Admissible?

Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

 

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.  

           

GAL Investigation: What to Expect

The court has appointed a Guardian ad Litem, now what? While each GAL has their individual approach to an investigation, in general, this You Tube video reviews what you can expect during the investigation. 

 

 

 

When a Parent Moves - Relocation of a Child's Residence

When a parent desires to relocate, whether across the state or across the country, it can raise difficult issues for the children and the parenting schedule. This video highlights the standard for relocation set forth in NH RSA 461-A:12 and the issues encountered in petitioning for or defending against a request to relocate. 

What to Bring to a Pretrial Hearing

Before your final trial, the court will conduct a pretrial hearing. Learn here what will happen at the hearing and what needs to be prepared and filed at the hearing. 

Alimony in New Hampshire on You Tube

There's a new batch of You Tube videos about divorce and family law in New Hampshire. Here is the first, a segment about alimony. 

 

A New Hampshire Alimony Primer

I am always surprised when a potential client comes in to meet with me and says “there’s no such thing as alimony in New Hampshire, right?” Be assured, there is alimony in New Hampshire. 

Alimony is governed by RSA 458:19. The law says that the recipient must have the need for alimony, and the payor must have the ability to pay. The alimony award must take into account the lifestyle of the parties during the marriage. In determining the amount of alimony, the court must consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded to either party, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party as defined in RSA 458:16-a, II(l); and the federal tax consequences of the order.

Things to know about alimony:

  • Alimony is gender neutral. Men and women can receive alimony.
  • The court has broad discretion when awarding alimony, and there is no formula in New Hampshire for either an amount or a term.
  • Alimony cannot be waived in a divorce stipulation. The law provides either spouse with the right to petition for alimony within 5 years of the date of the divorce decree, or if alimony has been ordered for a definite time period, within 5 years from the date of the last payment.
  • Alimony is tax deductible to the payor, and is taxable income to the recipient.
  • The primary purpose of alimony is rehabilitative, meaning the support is intended to allow the recipient time to become self-supporting. However, the court has the authority to order alimony for an indefinite period of time where appropriate.
  • Agreements that contain a provision for the payment of alimony often include language about the terminating alimony upon the recipient’s remarriage or cohabitation with a romantic partner. 

Why You Need a Coach in your Collaborative Divorce

New Hampshire collaborative practice employs an interdisciplinary model, which is fancy for saying that the professional team includes attorneys, a coach and a financial neutral. When the topic of hiring a coach comes up, I sometimes receive this feedback:

  • Why do we need a coach?
  • I already have a therapist, isn't that the same thing?
  • It's another expense in the process. 
  • Let's see how it goes without one and we can always hire one later. 

I intended to write a thorough and thoughful post about the need for a coach, and then found this article Do You Really Need a Divorce Coach in the Collaborative Process? by Helene Taylor. I really can't say it better myself, and it answers all the frequently asked questions. It's a must read if you are considering a collaborative divorce. I especially love her explanation of the difference between a therapist and a divorce coach:

A therapist is someone you bring your luggage to and she helps you open it up and decipher the contents; a divorce coach is someone you bring your luggage to and, without opening it, she helps you carry it across the street.

From my attorney perspective, a coach helps me do my job better and reach the end result quicker. The coach, who is far better trained in the emotional aspects of a divorce than I am, can facilitate the emotional discussions and keep lines of communication between the parties open so that the legal discussions can be more productive.

For more information about collaborative divorce, check out the information video from the International Academy of Collaborative Professionals. You can also download a free Collaborative Divorce Knowledge Kit

Unbundled Legal Services

Unbundled legal services, also known as limited scope representation, allow you to hire a lawyer to do certain parts of your case, instead of the traditional soup to nuts representation. Some clients choose unbundled services because they cannot afford full representation, and some advice is better than no advice. Other clients feel capable of handling certain parts of the case, but need assistance with other portions.

Unbundled services can be customized to fit your needs, and can include

  • Representation at a specific hearing, such as a temporary hearing
  • Draft proposed orders or pleadings
  • Attending mediation
  • Assisting with discovery preparations
  • Consulting during your case to provide assistance and advice  

Payment arrangements for unbundled services can be tailored to the specific service. For example, paying a small retainer for ongoing advice, or paying for an hour at the end of a meeting to prepare documents.

Lawyers providing unbundled services will ask the client to sign a consent form that clearly spells out what services are, and are not, going to be provided, in addition to a fee agreement. 

Interview: Same-sex divorces are a tiny but growing part of New Hampshire

I had the pleasure of being interviewed by David Brooks of the Nashua Telegraph for the article Same-sex divorces are a tiny but growing part of New Hampshire. As I observed, the reasons in a gay or lesbian divorce, and the emotions that come with it, are no different than any opposite-sex divorce. The differences come from the legal issues created by DOMA and other states who fail to recognize same-sex marriage. 

I learned something new from David, who was the first person to obtain same-sex divorce statistics from the State of New Hampshire. By the numbers:

Marriages                          Divorces

Female couples                                     1,628                                  61

Male couples                                           623                                     23 

Opposite-sex couples                            26,718                              15,222

The article also includes an interesting side note about the male/female ratios of marriages and divorces in New Hampshire same-sex couples. 

As of last month , New Hampshire has seen 1,628 female couples get married, which is 2½ times as many as the 623 male couples who have gotten married.

Over that same period, 61 female couples have gotten divorced, separated or had their marriage annulled – also 2½ times the figure for males, 23.

A part of our discussion that did not make it into the article was David's question about whether my practice was devoted solely to these gay and lesbian divorce and parenting matters. While it is an interesting area of the law that I enjoy practicing in, my hope is that DOMA will soon be overturned and there won't be any difference in the near future. Although I currently handle a large number of same-sex cases, it would be silly to exclusively devote to a law practice to an area of the law that will eventually no longer exist when marriage equality is achieved. 

 

What to Expect: First Collaborative 4-Way Meeting

 

You and your spouse have chosen the collaborative process for your divorce and hired your attorneys. Now what? The first 4-way, or 5-way if you have hired a coach, will get the collaborative process started. 

Generally, you should expect to cover the following items in your first meeting:

  • Review and sign the collaborative participation agreement
  • Share your reasons for choosing collaborative for your divorce
  • Review the collaborative roadmap to understand each stage of the process
  • Discuss dates to obtain valuations, such as an appraisal for the house or business
  • Talk over the cost of collaborative and how it will be paid
  • Agree on neutrals (coach and financial)
  • Schedule the next meeting
  • Set up temporary parenting/cash flow arrangements
  • Put together homework list, such as preparing financial affidavit

You may feel anxious, stressed, or nervous, and that's all normal. Consider how you would be feeling if you were about to litigate and go to court for the first time. The collaborative approach won’t always be easy, but you will come out the other end better off than litigation. 

 

New Family Division Judge and Marital Master Assignments

The following are the new judge and marital master assignments for family cases in the Circuit and Superior Court for January 2013 through March 2013:

 

1st Circuit


Colebrook

Hon. Paul D. Desjardins
(most of these hearings are held in Lancaster)


Berlin

To Be Determined 


Lancaster

Hon. J. Peter Cyr

2nd Circuit


Lebanon

Hon. Lawrence A. Macleod, Jr.


Littleton

Hon. J. Peter Cyr


Haverhill

Hon. J. Peter Cyr


Plymouth

Hon. Thomas A. Rappa

3rd Circuit


Conway

Hon. Pamela D. Albee


Ossipee

Hon. James R. Patten

4th Circuit


Laconia

Michael H. Garner, Marital Master

5th Circuit


Claremont

Hon. John J. Yazinski


Newport

Hon. Bruce A. Cardello

6th Circuit


Concord          

Nancy J. Geiger, Marital Master 
Henrietta W. Luneau, Marital Master
Michael H. Garner, Marital Master


Franklin

Nancy J. Geiger, Marital Master
Hon. Edward M. Gordon


Hillsborough

Hon. Edward B. Tenney


Hooksett

Hon. Paul S. Moore

7th Circuit


Dover

Robert J. Foley, Marital Master


Rochester

Hon. Susan W. Ashley
Robert J. Foley, Marital Master 


Cheshire Superior

Hon. John Kissinger 

9th Circuit


Manchester

Hon. Susan B. Carbon
Thomas G. Cooper, Marital Master
Hon. Sharon DeVries 
Bruce F. DalPra, Marital Master

Nashua

Hon. Julie A. Introcaso
Hon. Michael J. Ryan


Merrimack

Bruce F. DalPra, Marital Master
Hon. Clifford R. Kinghorn, Jr. 


Goffstown

Hon. Paul S. Moore

10th Circuit


Brentwood

Henrietta W. Luneau, Marital Master
Hon. David G. LeFrancois


Salem

Thomas G. Cooper, Marital Master


Derry

Hon. Lucinda V. Sadler


Portsmouth

Hon. Jennifer A. Lemire

 

In the Matter of Mason: Debt to a former spouse is non-dischargeable in bankruptcy

The Facts

Husband and Wife divorced, and the final decree directs Wife to pay 50% of Husband’s 2006 taxes. Wife later files for Chapter 7 bankruptcy, listing her obligation under the divorce decree in the bankruptcy petition. She lists Husband as a co-debtor on the tax debt, and as a creditor holding an unsecured non-priority claim. Wife received a discharge from the U.S. Bankruptcy Court. Each spouse petitioned the IRS for “innocent spouse” relief from their federal income tax liability for 2006. The Wife’s petition was granted, the Husband’s denied.

Husband filed a motion for contempt, asking the trial court to compel the wife to pay the obligation to him as ordered in the divorce decree. The trial court denied the motion, reasoning that:

[Wife] sought to have her debt to [Husband] discharged in bankruptcy. Toward [that] end, in her bankruptcy petition [Wife] noticed [Husband] as a creditor for “2010: divorce settlement” in the amount of the original debt to the IRS. [Husband] was duly noticed that he was listed as a creditor and had the opportunity to litigate the issue in the bankruptcy court. [Husband] was granted a bankruptcy and the debt was discharged.

The Appeal

Husband appealed, arguing that: 1) the trial court erred as a matter of law when it found that Wife’s obligation to pay 50% of his 2006 federal income taxes had been discharged in bankruptcy because he failed to litigate in the bankruptcy court that her obligation was non-dischargeable; and, 2) that the trial court erred as a matter of law and unsustainably exercised its discretion when it declined to award him attorney’s fees and costs.

The Supreme Court issued an opinion on November 28, 2012. 

The Holding

Wife’s debt to Husband to pay 50% of his 2006 taxes was automatically non-dischargeable under 11 U.S.C. § 523(a)(15) as a debt to a former spouse. Even if the Wife was ordered to make payments on the obligation to a third party instead of directly to Husband, it is still a debt to the spouse and therefore non-dischargeable.

The trial court did not err when it declined to award Husband attorney’s fees. The general rule in New Hampshire is that each party must bear their own costs in litigation. A prevailing party may only recover attorney’s fees when it is authorized by statute, there is an agreement between the parties allocating or awarding attorney fees, or there is an established judicial exception to the general rule. Exceptions to the general rule include:

(W)here an individual is forced to seek judicial assistance to secure a clearly defined and established right if bad faith can be established; where litigation is instituted  or unnecessarily prolonged through a party’s oppressive, vexatious, arbitrary, capricious or bad faith conduct; as compensation for those who are forced to litigate in order to enjoy what a court has already decreed; and for those who are forced to litigate against an opponent whose position is patently unreasonable.

The Supreme Court noted that although it held that Wife’s position was erroneous under the law, her position was not patently unreasonable. Therefore, Husband was not entitled to an award of attorney’s fees.

The Takeaway

Whether a financial obligation to a former spouse is incurred by an agreement approved by the court or by court order, that obligation cannot be discharged in bankruptcy. Plan on the obligation surviving the discharge, and ask your bankruptcy attorney whether the bankruptcy court can restructure the repayment of the debt. 

Raybeck and Raybeck: Providing a definition of cohabitation

The Facts

Husband and Wife divorce after forty-two years of marriage in 2005. The divorce decree divides the property and requires the Husband to pay $25,000 per year for ten years. However, the decree provided that alimony would stop if the Wife cohabitated with “an unrelated adult male.”

In 2010, the Wife moved from her home, and rented it to reduce her expenses. She moved into the upper level of a single family home that was owned by a man she met through an online dating service. The man lived on the lower floor, and they had shared space on the middle floor of the home. The Wife did not pay rent, but she did pay $300 per month for food and often cooked for him.

The Husband stopped paying alimony when he learned of the move, and Wife sought enforcement of the alimony obligation. The trial court ruled that the Wife was not cohabitating under the terms of the decree and enforced the alimony obligation.

The Appeal

The Husband appealed the trial court’s order, initially arguing that the trial court erred in concluding that the Wife was not cohabitating. However, at oral argument the Husband abandoned that argument, and instead argued that the trial court did not a have a workable definition of cohabitation and urged the court to adopt a standard.

The Holding

The Supreme Court defines cohabitation as “a relationship between persons resembling that of a marriage.” Whether two people are cohabitating will depend on the facts and circumstances of each particular case. The Supreme Court offered guidance on factors to be considered:

  • Whether the couple is living together continually
  • What the financial arrangements between the couple are and to the extent that they are entangled, including whether there are shared expenses, to what extent one supports the other, whether there are shared investments or retirement planning, if the couple have joint bank accounts, and whether there are life insurance policies naming the other.
  • The extent of the personal relationship, including the intimacy of the connection, shared vacations, shared friends and social connections, and a sexual relationship (although not necessarily dispositive)
  • Whether the couple share and enjoy each other’s personal property, such as household furnishings, appliances, vehicles, and personal items, such as toiletries or clothing
  • The age of the couple may be an important consideration, which may give more or less weight to the support of one by the other and estate planning providing for children of prior relationships
  • Whether friends, family or the community view the couple was engaging in a personal intimate relationship

The Takeaway

The guidance provided in this case should assist a trial court in determining whether a coupld is cohabitating, even though the facts and circumstances in each particular case. Perhaps the old adage “if it walks like a duck, and quacks like a duck” is most appropriate.   
 

New Hampshire same-sex divorce: What you need to know

Please check out my recent You Tube video on the topic of same-sex divorce in New Hampshire. We'll review length of marriage considerations, parenting rights for same-sex couples, and special property distribution issues in divorces for same-sex partners.

The temporary hearing: A critical phase of your case

Continuing the series of You Tube videos, this edition discusses a very important hearing in your case: the temporary hearing. Watch to find out why, and what you need to do to be prepared and help achieve a good result.

Here are the forms you need for a divorce temporary hearing with children:

Thanks to Jeremy Collins at Ellipsis Entertainment, you were great to work with on this series!

Elter-Nodvin v. Nodvin: Change in beneficary does not violate anti-hypothecation order

The New Hampshire Supreme Court recently issued an interesting opinion in the matter of Elter-Nodvin v. Nodvin. It is not a traditional family law case, ie divorce or parenting, but rather a constructive trust matter. Nevertheless, the holding has ramifications in the family division.

The Facts

Husband files for divorce from wife. Family court issues an anti-hypothecation order, which restrains the parties “from selling, transferring, encumbering, hypothecating, concealing or in any other manner whatsoever disposing of any property, real or personal, belonging to either or both of them.” While divorce is pending, husband changes his beneficiary on his life insurance and retirement accounts from Wife to their children. Husband dies before divorce is accomplished. Wife sues children in Superior Court seeking to impose a constructive trust to recover the proceeds from the life insurance and retirement accounts. Superior Court dismisses wife’s claims against children.

The Appeal

The wife appealed the trial court’s decision dismissing her petition, arguing that the husband’s change in beneficiaries from wife to children violated the anti-hypothecation order and required the imposition of a constructive trust in favor of the wife over the proceeds. The wife also argues that the husband violated the order when he changed beneficiaries because those actions hindered the trial court’s ability to distribute the assets according to the purpose of the anti-hypothecation order.

The Holding

The court holding is interesting, and contrary to the conventional wisdom that changing beneficiaries on insurance or retirement accounts violated the anti-hypothecation order. Instead, the Supreme Court declared that the plain language of the anti-hypothecation order that required the parties to refrain from disposing of property allowed the husband to make the changes to the beneficiaries, and in no way impeded the family division from making an order requiring the husband to name the wife as beneficiary. The Supreme Court reasoned that the wife did not possess a vested property interest, and absent a property interest, there could be no violation of the order. Therefore, the wife could not base the imposition of a constructive trust on the alleged violation of the anti-hypothecation order.   

The Takeaway

At a temporary hearing, or in a temporary agreement, it is important to secure an order that each party shall name the other as the beneficiary on their existing life insurance, retirement plans, and/or survivor benefits and shall make no changes to those designations while the divorce is pending.

Tips for Completing your New Hampshire Family Division Financial Affidavit

This blog has been a great way to reach out to people who need information about divorce, parenting and family law, and it has been a great experience hearing feedback from colleagues and watching the number of readers grow throughout the years. I hadn't considered branching out into You Tube until I read a blog post on Kevin O'Keefe's Real Lawyers Have Blogs called Are Law Firms Underutilizing You Tube? The idea of a audio/visual piece to this blog appealed to me. Much like I like to hear the audio tour in an art museum instead of reading all the tags next to a painting because it is easier to absorb the information, I think that a video can help convey information in a good way.  

So without further ado, the following is my first You Tube video on the topic of completing your financial affidavit.

Click here for the Financial Affidavit form for theNew Hampshire Circuit Court, Family Division.

Thank you to Jeremy Collins at Ellipsis Entertainment for being easy to work with and producing a great product.

Raising Hope Custody Drama: Real or Not Real?

One of my favorite blogs is Law and the Multiverse. The blog’s premise is to take fictional situations from movies, comic books, and televisions shows and discuss the legal ramifications by applying relevant law. Have you ever wondered whether mutants are a protected class? They have the answer. Want to know whether superheroes have a duty to rescue? Check here. Ever thought they just got the law wrong in Snakes on a Plane? You were right.  

I must have had this blog on the brain while watching Fox’s comedy Raising Hope. The show ended its second season with a courtroom custody drama titled “I want my baby back, baby back, baby back.” Jimmy Chance, two year old Hope’s father, is engaged in a custody battle with Hope’s mother Lucy Carlisle, a boyfriend-murdering serial killer who survived execution. The show is very funny, and clearly this episode was going for laughs and not realism. But that didn’t stop me from rolling my eyes or yelling “come on” at some of the absurdly unrealistic depictions of family law. So I thought that I would play Katniss and Peeta’s “real or not real” game Law and the Multiverse style.

Suppressing Evidence

First up, at the start of the trial, the mother’s attorney stands and makes an oral “Motion to Suppress Evidence of My Client as a Serial Killer.” She argues that the mother’s serial killer background should be suppressed because the charges were dismissed as part of a settlement deal from Lucy’s lawsuit against the prison, and therefore technically never happened. Assuming Lucy’s attorney is making the argument based on Rule of Evidence 403, which allows the exclusion of relevant evidence if the probative value is outweighed by the prejudicial nature of the evidence. Of course the fact that Lucy is a serial killer is prejudicial to Lucy, but it is not more prejudicial than probative, and would not be excluded on this basis.

Even if the judge found that it was more prejudicial than probative, in New Hampshire family cases, the judge has the flexibility to disregard the Rules of Evidence. Pursuant to Family Division Rule 2.2, the Rules of Evidence do not apply in divorce and parenting matters. The judge may, in her discretion, apply the New Hampshire Rules of Evidence “to enhance the predictable, orderly, fair, and reliable presentation of evidence.” The evidence of Lucy’s murder spree would absolutely come in as it is critical to the determination of the child’s best interests. The verdict: not real.

Jury Trial

Next, in Raising Hope land, a jury will hear the custody trial and issue a verdict. When the evidence of Lucy’s violent past is suppressed, Jimmy and his parents are not too worried because only locals “who were living under a rock” would not recognize Lucy as the serial killer from her high-profile trial. And then they bring out a jury composed only of miners who were stuck underground during the murders and trial. The Chance’s lawyer quips that he thought it was the gentlemanly thing to do to let his opposing counsel pick the jury (The Chances should probably be looking into malpractice claims). Of course, in reality, juries do not hear family cases. In New Hampshire, a judge (RSA 490-F), marital master, or child support referee (RSA 490-F:15) preside in the family division and issue court orders. The verdict: not real.

Presence of Minors in Courtroom

The jury renders a verdict in favor of the mother, granting custody of Hope to Lucy. While the verdict is being read, Hope sits on her father’s lap. Pursuant to New Hampshire Family Division Rule 2.8 “a child shall not be brought to court as a witness, or to attend a hearing, or be involved in depositions without prior order of the Court allowing that child’s participation. To obtain permission of the Court for the presence of a child in such a proceeding, good cause must be shown.” There are some exceptions for domestic relations cases, such as adoptions (RSA 170-B:19), guardianships of children over the age of 14 (RSA 463:8 and Family Division Rule 5.4), and certain circumstances in abuse and neglect cases (Family Division Rule 4.5). However, these exceptions do not apply in parenting rights and responsibility cases like the Chance custody trial, and Hope would not be permitted in the courtroom. The verdict: not real.

Brawl in the Courtroom

Finally, after the verdict is read, Virginia and Burt, Jimmy’s parents, begin wrestling with the bailiffs and generally causing a ruckus in the courtroom. The Chances seem to remain incarceration-free despite the fracas. This kind of behavior would probably have landed Virginia and Burt in jail for direct criminal contempt. The judge must preserve and protect the dignity and authority of the court, and the Chances conduct violates such dignity and authority. The verdict: not real.

Raising Hope gets an A for laughs, but and F for realism. I’ll still tune in though.

Contempt of Court

Throughout my years practicing law and in my role as a guardian ad litem, I often hear misconceptions about contempt. Usually I hear statements along the lines of “I don’t want a criminal record” or “if I am found in contempt I will be arrested.” This post is intended to dispel some of these misunderstandings and to set the record straight.

Contempt can be civil or criminal, direct or indirect. The difference between civil or criminal lies in the purpose of the punishment. Direct or indirect contempt contrasts between acts committed either in the presence or outside of the presence of the court.

Civil Contempt

A finding of civil contempt results in an order that is remedial, coercive and for the benefit of the other party. The punishment is intended to force the contemnor’s compliance with court orders. Examples of the consequences of a contempt finding include money fines, orders directing compliance with the court orders, or even an indefinite jail sentence until the contempt is cured. It is often said that the contemnor “holds the key to the jail in his pocket” because curing the contempt will set him free. In family matters, motions for contempt are often brought for failure to pay child support, failure to abide by the parenting schedule, or selling or encumbering property in violation of a non-hypothecation order. Jail is a remedy of last resort, and one that usually only follows repeated, intentional refusals to abide by court orders or extreme behavior. The court will usually exhaust other remedies, such as payment of the other parties’ attorney’s fees, before sending a person to jail for civil contempt. A civil finding of contempt does not appear on a person’s criminal record.

Criminal Contempt

In contrast, a person who has been found in criminal contempt does not hold the keys to the jailhouse, and remedying the contempt will not set him free. The punishment is punitive, and intended to protect and preserve the dignity and authority of the court. Indirect criminal contempt proceedings must generally follow to procedural formalities of criminal proceedings. The defendant is entitled to reasonable notice, providing a date and time for the proceeding and warning that the contempt is considered criminal. The prosecutor must prove the elements of contempt beyond a reasonable doubt, and the contemnor is entitled to counsel and holds the right against self-incrimination. If the court intends to impose a sentence of greater than six months, the defendant has the right to a jury trial.

An example of criminal contempt, and the confusion that can result between criminal and civil contempt, is the New Hampshire case of Mortgage Specialists v. Davey. Mortgage Specialists sued the defendants for violation of trade secrets. Following a preliminary injunction, the defendants destroyed documents in violation of the court order. The court found the defendants in contempt, believing that they had thumbed their noses at the trial court’s authority and thwarted the dignity of the process, and issued penalties including attorney’s fees, fines and a penalty of three times the amount of profits unjustly reaped from the violation of trade secrets. The Supreme Court vacated the finding because the defendants were not provided notice that the contempt proceedings would be criminal.

Indirect Contempt

Indirect contempt is conduct that takes place outside of the presence of the court. The court does not have first-hand knowledge. Instead, the acts of contempt must be proved through evidence. An interesting case that distinguishes direct contempt versus indirect contempt is Kristen McGuire v. Suzanne Collins. In McGuire, a litigant in a custody matter arrived at the courthouse smelling of alcohol. The court security officer approached the litigant, and a state trooper performed a preliminary breath test. The results were not provided to the litigant, or her attorney. However, when she appeared before the court for the hearing, the judge informed her that she had blown a .20, well above the legal limit. However, the litigant displayed no disorderly behavior in the courtroom. The judge sentenced to litigant to 30 days in jail for direct, criminal contempt for appearing before the court in an inebriated state. However, the sentence was overturned by the Superior Court following a filing for a writ of habeus corpus because the family division judge had not personally observed the elements of contempt. Instead, the court had to rely on the observations of the court staff and the preliminary breath test conducted by the state trooper to prove the elements of contempt. Therefore, the court did not have direct knowledge and could not conduct summary proceedings resulting in the immediate incarceration.

Direct Contempt

Direct contempt takes place in the presence of the court where the judge personally observes all of the elements of contempt. The following is a perfect example of direct contempt from Maryland in the case of Patrick Smith v. State of Maryland:

THE DEFENDANT: What is the maximum on contempt, sir?

THE COURT: What is the maxim um on contempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is that correct . . . ?

[STATE’S ATTORNEY]: Yes.

THE COURT: Mr. Smith, I am not going to give you in excess of six months.

THE DEFENDANT: Let me tell you something.

THE COURT: What?

THE DEFENDANT: You say you won’t give me in excess of six months.

THE COURT: Yes.

THE DEFENDANT: You know what? You have been sitting up there in the trial in every hearing I have had for this far, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify --

THE COURT: I asked you if you had anything you want to say as to what sentence the Court should impose --

THE DEFENDANT: Yeah. You know what? You can give me six more months, motherfucker, for sucking my dick, you punk ass b itch. You should have a white robe on, motherfucker, instead of a black. Fuck you.

THE COURT: I find you in contempt again.

THE DEFENDANT: Fuck you in contempt again.

THE COURT: I find you three times in contempt --

THE DEFENDANT: Fuck you. And fuck.

THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve.

THE DEFENDANT: Yeah. You better leave now, you, Ku Klux Klan.

Other examples of direct contempt include assaulting another person in the courtroom or refusing to testify when ordered to do so. When direct contempt occurs, the court may skirt procedural formalities required of indirect contempt in light of the court’s direct knowledge of the contempt. The word “summarily” does not refer to the swiftness of the punishment, but rather the dispensing with the formalities that accompany a conventional trial such as service of process, notice of hearing, and submission of evidence. Instead, the court must give the contemnor oral notice of the contempt observed, an opportunity to speak in his defense, where after the court may issue a finding of guilty and pronounce sentence.  

Understanding Same-Sex Divorce

In November, I authored an article on same-sex marriages in the New Hampshire Bar News geared towards helping practioners understand unique issues in same-sex divorces. I reprint here the full article:

Practicing family law in one of the six states that recognizes same-sex marriage requires an understanding of the unique challenges that same-sex couples face in a divorce. Usually, a divorce provides a mechanism to dissolve the legal relationship, divide property and establish parental rights and responsibilities. Although same-sex couples can dissolve their marriage in New Hampshire, reaching a fair and reasonable property division or establishing parental rights and responsibilities is much more difficult.

Marriage & Divorce

New Hampshire practitioners have limited precedent to guide them on several thorny issues that are distinctive to same-sex couples. Ironically, one of the few cases involving same-sex relationships, which is still good law, is now inconsistent with the state’s recognition of same-sex marriage. In the Matter of Blanchflower held that adultery does not include homosexual relationships. The court based its decision on the definition in New Hampshire of adultery, which excludes all non-coital sex acts, no matter the gender of the persons engaging in the act. Thus, although other fault grounds may be pursued, adultery is off the table for same-sex divorcing couples. The Blanchflower Court noted that it was not the function of the judiciary to extend past legislation to provide for present needs.

A common dispute in same-sex divorce is the calculation of the length of the marriage. In cases where the parties’ cohabitated long term prior to the marriage, one party may attempt to tack on the cohabitation to increase the length of the marriage and impact alimony and property division. This argument stems from the claim that had the parties been able to marry, they would have. Without New Hampshire precedent, the court may look to Massachusetts for guidance, where the Massachusetts Supreme Judicial Court has held that marriage benefits apply prospectively to the legalization of same-sex marriage. In addition to the cohabitation argument, the question also remains whether domestic partnerships, like those in California or New Jersey, might be similar enough to a marriage to tack on and create a long-term marriage.

Alimony

The IRS identifies alimony as payments made between spouses or former spouses pursuant to a divorce or separation agreement. Typically, alimony is deductible to the payor and includable as income to the payee for federal income tax purposes. However, the Defense of Marriage Act prohibits the federal recognition of same-sex marriages, and in turn precludes the IRS from recognizing a same-sex spouse as such. Although the IRS has not provided specific guidance on the issue, it seems clear that alimony payments are not tax deductible to the payor and may incur a gift tax liability. The IRS might alternatively consider the payments compensation for past services, with income tax, self-employment tax and possible withholding obligations. Either treatment will incur tax consequences that could be financially devastating to the family.

Property Division

In "traditional" divorces, opposite-sex couples rarely invokes tax consequences during the division of their marital assets. Such property transfers meet specific IRS exemption rules. Same-sex couples on the other hand can be saddled with a large tax liability as a result of property division.

The Defense of Marriage Act disqualifies same-sex spouses from the tax exemptions for property transfers made pursuant to a divorce decree. Instead, same-sex couples incur a gift tax liability for most transfers made between the spouses or former spouses in excess of $13,000. For example, if one spouse transfers $30,000 to the other spouse for property settlement, $17,000 would be taxable. In addition to gift tax, same-sex couples must be aware of capital gains tax when the home is transferred from joint ownership to one spouse.

A specific part of property division is the ability of a spouse to transfer property to a spouse or former spouse by qualified domestic relations order (QDRO) pursuant to the federal Employment Retirement Income Security Act (ERISA), a portion of a retirement plan or tax sheltered annuity. The tax treatment of such transfers depends on the word "spouse." In other words, in order to qualify for the tax-free transfer benefits, the relationship must be recognized by the IRS as a marriage. Under the Defense of Marriage Act, which defines marriage as between a man and a woman, a QDRO is not a vehicle available to same-sex couples to transfer retirement assets tax-free. Instead, same-sex couples must pay taxes and early withdrawal penalties on transfers made to the other spouse, regardless of whether it is deposited into the other spouses’s retirement account.

Parental Rights & Responsibilities

New Hampshire follows the legal principal that a child born into a marriage is presumed to be the legal child of both spouses. This presumption of legitimacy may be attacked however, and if successful could drastically affect the non-biological parent’s right to seek parenting rights and responsibilities, including residential responsibilities. Although the step-parent statute might be a useful tool in this circumstance, the parenting rights accessed through this avenue could look much different than the rights of a legal parent. Co-parent adoption is the safest way to establish protected parenting rights for each spouse.

Post Divorce To-Do List

The divorce is finally over, and it is time to move on. There are still some loose ends to tie up though, even after the divorce decree has issued. Not every item may apply to your case, but here are the most common things that should be on a newly single person's to-do list.

1. Update your life insurance and retirement account beneficiaries
2. Prepare a new will
3. Execute a quitclaim deed and record it at the registry of deeds to transfer the title of the house
4. Draft a QDRO, submit it to the court for approval and provide the order to the plan administrator
5. Resume your maiden name, and obtain a new social security card, driver’s license and debit and credit cards
6. Complete required paperwork to implement child support orders
7. Change your vehicle titles
8. Close all joint bank and credit card accounts
9. Make sure that COBRA benefits are in place and the necessary paperwork has been completed
10. Exchange personal property awarded to you or your former spouse

New Mandatory Self-Disclosure Rule takes effect December 1st in Family Division

A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

 

Family Division Rule 1.25-A applies to all new actions in the family division for:

 

·         divorce

·         legal separation

·         annulment

·         civil union dissolution

 

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

 

·         parenting petitions

·         child support petitions

·         petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

 

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

 

The rule obligates each party to provide the following documents to the other party:

 

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

 

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

 

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

 

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

 

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

 

i. The party,

ii. The party's spouse, and

iii. The party's dependent child(ren).

 

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

 

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

 

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).

 

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

 

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

 

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

 

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

 

Have you considered collaborative law?

I am pleased to announce that I have been accepted as a member of the Collaborative Law Alliance of New Hampshire. Collaborative practice is an alternative to the traditional, adversarial family law litigation process. Lawyers and clients agree from the beginning to keep the case out of court and settle it through a series of 4-way meetings. Instead of negotiating under the threat of court or on the eve of trial, lawyers and parties are freed from those constraints and are able to focus on alternative and creative solutions to meet each parties needs.

CLANH makes the point that the collaborative process benefits a client by:

  • Avoiding the expensive and lengthy court and litigation process.
  • Retaining a relationship of mutual respect while moving apart with dignity.
  • Reaching a settlement that both parties are comfortable with.

If the process breaks down, and the parties are not able to resolve the case, each lawyer is disqualified from representing their client in court. Each party must find a new attorney to litigate the case. This is an important aspect of the collaborative process because it gives incentive to remain committed to the collaborative process.

Both parties must have collaborative trained lawyers. Talk to your spouse or partner about collaborative practice, and have them research "collaborative law" or "collaborative practice." Download for them the free Collaborative Divorce Knowledge Kit from the International Academy of Collaborative Professionals. Ask them to speak to a lawyer trained in collaborative practice (a list of New Hampshire lawyers can be found here).

If you are interested in more information about the collaborative process, please contact my office at 603-627-3668 or through the contact form on this blog.

Concord, we have a problem!

Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.  

Pending Legislation

 

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

  • HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.
  • HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.
  •  HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.  

 

Impeachment of Master Cross

 

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

 

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration."  The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

 

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

 

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

 

State Budget

 

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

 

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

 

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

 

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

 

Please write to Governor Lynch, and tell him how his proposed budget affects your family.

Divorce & Bankruptcy

I came across a great article titled Bankruptcy - What You Need to Know. Divorce and bankruptcy are often intertwined, and the decision about whether one party or both parties should seek a bankruptcy before or after the divorce is a decision that should be reached with the advice of an experienced bankruptcy attorney. This article provides basic concepts of Chapter 7 or Chapter 13, which are the types of bankruptcy most often used by consumers.

For more bankruptcy and divorce reading, see the following:

Married Filing an Individual Bankruptcy: How Does this Affect my Spouse? by Attorney Christine Wilson on the Los Angeles Bankruptcy Law Monitor

Should I get a divorce before or after bankruptcy? by Attorney Bryan Fears on the Texas Bankruptcy Blog

Bankruptcy During Divorce posted on Lawyers.com

UCCJEA Now Effective

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) went into effect on December 1, 2010 in New Hampshire. Following the lead of 46 other states, the UCCJEA replaces the old UCCJA, which is still the law in Massachusetts and Vermont. The act affects almost every case that involves parental rights and responsibilities, including divorce, parenting petitions, child abuse and neglect, guardianships of minors, termination of parental rights, and domestic violence petitions where minor children are involved.   

 

Important points about the new law:

  • Requires that once the “home state” of the child has been determined, and child custody orders have been issued, that state has “exclusive continuing jurisdiction” for so long as the child or either parent reside there.
  • Eliminates the confusing “best interests” standard included in the UCCJA, which some courts interpreted as a mandate to consider best interests factors over and above jurisdictional matters.
  • Adds enforcement tools including a role for public authorities, such as prosecutors, to enforce custody orders and the ability for the court to issue a emergency relief such as a warrant to take possession of a child should the court be concerned that the parent with control over the child may flee.

The new law brings about a slew of new and revised forms. For petitioners, forms such as a Petition for Divorce, Petition for Guardianship over Minor, or a Domestic Violence Petition have been modified to include required information. For respondents, the court has developed a separate form titled a UCCJEA Affidavit to complete in response to an initial petition.

 

Navigating the requirements of the UCCJEA can be overwhelming for those involved in cases of parenting rights and responsibilities. It is important to retain competent legal counsel to assist you. Contact Crusco Law Office, PLLC for more information.

Moving on after your divorce

As a divorce attorney, my job does not often focus on the healing or grieving aspect of the divorce process. My roll focuses on giving legal advice and representing my clients to help them achieve their goals for their case. For those cases that must be litigated, I spend a lot of time during the course of a case, sometimes years, getting to know a client and helping them get through the legal process. Eventually the court case will end though, and it will be time for the party to move on emotionally as well. But how?

While procrastinating on Facebook the other day, I came across a link to an article called Newly Divorced? Don’t Forget to Grieve written by high school classmate of mine, Mary Darling Montero. Mary is a psychotherapist in San Jose, California who specializes in relationships and life transitions.  Mary offers great advice to help grieve a relationship and move on.

Mary writes that the end of a relationship can often look similar to the grief stages an end-of-life loss might have. She explains them as follows:

• Denial-- We don't believe or accept that the relationship is over. If we initiated the split, we might feel ambivalent; we might believe that maybe our significant other is capable of change, after all. If the split was not our decision, we might believe that it's only temporary, that our significant other will realize that he or she made a mistake, and that reconciliation is possible. Denial can also be a general feeling of not believing that a relationship is over, even if we know that reconciliation isn't likely.

• Anger-- We're, well, angry. We're angry at the other person or we're angry at ourselves. We might be angry about what we perceive as wasted time, or how the other person is handling the relationship breakup. This stage can also be exacerbated and prolonged as we deal with legal issues related to divorce or child custody/support.

• Bargaining-- We might try to bargain with a higher power ("I'll never do such and such again if you bring him back to me") or literal bargaining with our ex ("I'll never do such and such again if you come back"). This could also be figurative bargaining ("I'll change this and that about my lifestyle and she'll come back when she realizes I've changed").

• Depression-- We understand that the relationship is over, and we face the reality that we have lost not only our significant other, but also the dreams attached to the relationship. Oftentimes the dreams are the hardest aspect of a relationship to let go.

• Acceptance-- We acknowledge that the relationship is over and begin to feel that we are capable of dealing with it, healing from it, and moving forward.

Most importantly, Mary notes that the grieving process at the end of a relationship will affect the couple’s children. Stay tuned into their feelings, she says, and do not pressure them to get over it quickly. Mary advises to trust your support system, try writing a journal to come to grips with your feelings, and make sure that you are taking care of yourself (eating, sleeping, exercising).

So, while your attorney will be a very important part of your divorce, so too is the professional that can help with the grieving process and emotional healing of the breakup. If you need help in the New Hampshire area, feel free to call Crusco Law Office, PLLC for a referral.

 

Sukerman: Accidental disability benefits are marital property subject to equitable division

In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

Crusco Law Office, PLLC law clerk Dan McLaughlin contributed to this post.

Tax season tips for divorcing couples

For the next three months, the 2009 tax season is upon us. For divorcing couples, whether to file separately or jointly, who will claim the children and how to address alimony can add even more stress to the divorce and to tax season. However, Attorney Nancy Van Tine of the Massachusets Divorce Law Montior offers these five simple tax tips:

  • Child support is not tax deductible. If you pay the child support, you pay the taxes.
  • Alimony is tax deductible to the payor, and taxable to the payee.
  • Property settlement, or property transfers, pursuant to a divorce decree are not taxable. However, as Attorney Van Tine points out, this is only true for opposite sex marriages. Same sex marraiges have different rules as Attorney Van Tine blogged about here.
  • Transfers of pensions can be transferred without any tax consquences through a Qualified Domestic Relations Order (again, only if your are in a opposite sex marriage).
  • The IRS has five tips for recently married or divorce taxpayers regading name changes.  

I would add to Attorney Van Tine's list these tips:

  •  If you do not have a court order regarding the child tax credit, then you must follow the IRS rules. Specifically, the parent who has residential responsiblity and parenting time more than 50% of the time is entitled to claim the child.
  • If your divorce decree has not been issued prior to December 31st, you may file jointly or separately. However, if your divorce is final by December 31st, you cannot file jointly. Take a look at IRS Publication 504 for more information.

 

Sexters Beware! Evidence of infidelity in the digital age

Unless you have been living under a rock the last few weeks, you have come across the Tiger Woods story. The car crash, the rumors of domestic violence, and, of course, the cheating. According to reports, Elin discovered the affair by going through Tiger's phone records. Jaimee Grubbs, one of Tiger's many mistresses, has come forward with more than 300 flirty, steamy text messages as evidence of the affair. As smartly phrased by Laura Holson of the New York Times, text messages are the new digital lipstick on the collar.

Tiger is not the only person of notoriety to be caught by a text message. Detroit's former major, Kwame Kilpatrick, went to jail after lying about an affair with an aide and then having sexually explicit test messages surface. Senator John Ensign was caught having an affair when his mistresses husband, who was also his aide, found text messages on Senator Ensign's phone. And the list goes on and  on.

Otherwise intelligent men and women seem to believe that the digital evidence of their trysts disappear into the ether with their texts, never to be seen again. That is, until your spouse or her attorney dig it up. Daniel Clement, of the New York Divorce Report writes:

In the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

So, especially in the State of New Hampshire where divorcing spouses may plead fault grounds, sexters beware! Evidence of infidelity in the digital age is easy to find, and divorce attorneys know where to look. The evidence will most likely come to light before or during your divorce. If you do not want to be caught, refrain from the affair.

Divorce & Social Media: Think before you type!

I was reading a blog post today by photographer Samantha Warren at Samantha Warren Weddings in which she mused on a tweet by Dita Von Teese that pondered "Did you all know that I only tell you the fun & glamorous things that I do, not the boring & unpleasant things?"  Sam writes in response:

Ms. Teese's tweet summed up one of the significant snags I see with social media, and that is that while you may put your life out there through Facebook, Twitter and blogging, it's life filtered, often for a particular purpose. In musical terms, while social media claims to be a jam session, the control we have over our image through its technology makes it a best of collection.

So true! Most of us using social media from Facebook to Twitter chat and tweet about the happy goings on from our beach vacations to a new job.  However, mix a stressful divorce or parenting rights and responsibilities matter with social media and our emotions can often get the best of us. Instead of the happy face usually broadcast to the world, the anger and hurt rises up and reaches out through our fingertips, sendind out status updates or tweets best kept to ourselves.

Time Magazine's recent article, Facebook and Divorce: Airing the Dirty Laundry, warns domestic relations litigants over the dangers of social media during litigation. Post a picture of your new BMW motorcycle after claiming the poorhouse? Tweeting about your crazy Saturday night party when you were supposed to be caring for the children? Updating your status about your date night with your new girlfriend, before you have separated from your wife? While you are posting about these things, opposing counsel is downloading your personal information from Facebook and Twitter and preparing to use it in court.

The moral of the story? Think before you post. Refrain from commenting about your spouse, his lawyer, the judge, the guardian ad litem. Do not post pictures of any content that can be used against you in court, including partying, gifts to or from new signifcant others or places you should not be. You'll be better off for it, and your lawyer will thank you.

Same-sex marriage and the future of fault grounds in New Hampshire

With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

98% of New Hampshire divorces are based on "no-fault"

Following up on my post earlier this week regarding the New Hampshire Supreme Court's recent decision in Guy, the Union Leader published an article titled "Email fall short for fault-based divorce." The article includes interesting statistics on divorce in New Hampshire based on records from the New Hampshire Division of Vital Statistics Records Administration that shows that 98% of divorces are granted for "no-fault."

  2000 2004 2008
Total Divorces 5,970 5,106 4,913
Irreconcilable Differences 5,920 5,042 4,847
Adultery 26 19 27
Extreme Cruelty 7 9 9
Abandonment 2 1 10

 

 

 

 

As the statistics show, most cases are based on "no-fault" or irreconcilable differences. In 2008, out of 4,913 divorces, only 66 were based on fault grounds (the top three being adultery, extreme cruelty, abandonment). One cause of the low rate of fault ground divorces is that most cases settle before trial and the parties agree to divorce based on irreconcilable differences. 

Additionally, even where fault grounds exist, some parties choose not to pursue them for several factors. Alleging fault grounds can dramatically increase the cost, length, and stress involved in a divorce. When deciding whether to file for fault grounds, it is important to consider the reason for seeking the fault grounds, what the fault grounds will accomplish and whether it will damage a co-parenting relationship.

IMO Guy: Fault divorce for endangering health or reasons requires more than anger and hurt feelings

The New Hampshire Supreme Court recently held In the Matter of Joni Guy and Daniel Guy on March 5, 2009 that in order to prove a fault-based divorce for endangering health or reason, the innocent spouse must prove that there has been more than just hurt feelings and anger. This holding raises the standard and makes this type of fault based divorce much harder to prove.  

Joni filed for divorce citing the fault grounds (NH RSA 458:7 ) of conduct endangering her health and reason, adultery, and habitual drunkenness. Alternatively, she sought a divorce on the ground of irreconcilable differences. (458:7-a. ) The trial court dismissed the grounds of habitual drunkenness and adultery but granted Joni the divorce on the fault grounds of conduct endangering Joni’s health and reason. The exact language of 458:7(V) is: When either party has so treated the other as seriously to injure health or endanger reason. Daniel appealed the final divorce decree based arguing that the trial court had made an error by granting Joni the fault based divorce.

 

The NH Supreme Court examined the meaning and standard of conduct that would be considered to injure an innocent spouse’s health and endanger their reason. The court determined that any behavior of one party which affects the other physically or mentally is treatment within the meaning of the statute. The opinion goes on to state that while the statute does not require proof of conduct that would have affected an average reasonable person, it does require proof that the health or reason of the complaining spouse was actually affected.  

 

The court scrutinized the conduct that Joni alleged caused her injury to her health and reason. Joni alleged that e-mails between Daniel and a former girlfriend which spoke of their love for each other and were sexually suggestive caused her to feel  “angry, upset and distraught”.

 

The court determined that this type of conduct is insufficient to constitute treatment that arises to the level of seriousness required by the statute. Feeling angry, upset and distraught does not constitute serious injury to one’s health or endangerment to one’s reason. The conduct at issue did not harm Joni’s physical well-being. Nor did it cause her to suffer the type of mental anguish the statute was intended to encompass. Therefore, the court reversed the trial court’s decision and sent the case back  to the trial court for further proceedings.

 

Crusco Law Office, PLLC Law Clerk Marisa Ulloa contributed to this post.

Parents may not waive NH statutory provision prohibiting an order requiring payment of adult child's college expenses

On January 30, 2009 the NH Supreme Court released the opinion for In the Matter of Joseph Goulart, Jr. and Marcia Goulart in which the Court held that parents are not free to waive the provisions of the statute that prohibit any child support order requiring a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school. The Court urged the legislature to reexamine the statutory language regarding approval or enforcement of a stipulated parenting plan in order to take into consideration a situation where the divorcing parties are fully informed, represented by counsel and mutually agree that one or both will voluntarily contribute to their adult child’s college expenses.

Joseph and Marcia divorced in 2005 while their son was still a minor. Part of their final divorce decree incorporated a Stipulated Parenting Plan, negotiated with counsel, which included a provision stating:

 

The parties are aware of the statutory provisions prohibiting the Court from ordering any parent to contribute to expenses for an adult child. Despite this prohibition the parties agree that Joseph shall be responsible for payment of the son’s college educational expenses.

 

In 2007, Joseph filed a motion to define his obligation regarding college expenses for the same reasons he cited before. There was a hearing and the family division ruled that Joseph was expected to assist with college expenses as agreed to in the Parenting Plan.

 

Joseph appealed that decision to the NH Supreme Court, contending that the family division has no authority to enforce the college education funding obligation because the court lacked subject matter jurisdiction to enter such an order under NH RSA 461-A:14, V. The statute reads: “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.”

 

The Court agreed with Joseph that the statute deprived both the superior court and the family division of subject matter jurisdiction to either approve or enforce a provision in a stipulated parenting plan that requires parents to contribute to their adult child’s college expenses. The family division should have modified the parenting plan by striking the college expense provision.

 

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

 

Divorce and its effects on your H-4 immigration status

As Florida family law attorney Christine Bauer points out on her Florida Divorce & Family Law Blog, divorce and family issues have a lot of intersecting areas of law such as real estate, bankruptcy, and immigration. Immigration issues can complicate a divorce, and cause much stress for the dependent spouse about their status in the U.S. Regarding H-4 visas, Attorney Bauer writes:

An H-4 visa is a dependent/spouse Visa that is issued when your spouse has a H-1B Visa. You cannot work with an H-4 visa but you are allowed to remain in the United States with your spouse. The H-4 visa is valid until it expires, and will also terminate when your divorce is finalized. It will remain in effect during your separation period, but upon your final divorce decree, it will terminate. Therefore, you must file paperwork to change your status and request a new visa with a new classification before the finalization of your divorce. If you do not do this, you can possibly be deported or required to leave the country on your own accord.

For more information on immigration issues, the U.S. Citizenship and Immigration Services has an extensive, is somewhat complicated to maneuver, website. Additionally, contacting a knowledgeable immigration attorney can help provide you with information and protect your immigration status through the divorce process.

Obtaining a passport for a minor child after divorce or separation

Although either parent may apply for their minor child’s U.S. passport, U.S. law requires the signature of both parents, or the child’s legal guardians, prior to the issuance of the passport for a child under the age of 16. Both parents must either appear in person to request the passport, or the non-applying parent may sign a form before a notary public granting permission for the issuance of a passport. Alternatively, the parent applying for the passport must document his/her sole authority to obtain a passport for the child. In order to comply with the law, Passport Services will require evidence of one of the following:

  • sole custody
  • a court order allowing the parent to travel with the child
  • a written statement under penalty of perjury that the other parent agrees to issuance or is unavailable
  • a termination of the other parent’s parental rights
  • or compelling humanitarian reasons relating to the welfare of the child

Additionally, the law provides two exceptions to the above requirements: (1) for exigent circumstances, such as those involving the health or welfare of the child, or (2) when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.  

For more information, the U.S. Department of State’s website on children and family is a great resource.

Internet postings: If you do not have anything nice to say ...

An article in the Boston Globe today exemplified why you should always follow the golden rule when posting on the internet: If you don't have anything nice to say, don't say it all. According to the Boston Globe:

A man accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged with two counts of criminal libel. The The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child. [The man], confronted by detectives at his workplace in August, said he was "just venting," according to court records.

 

"Just venting" can get you into a lot of trouble, not only with the police as this man found out, but also with the family court. Blogs, status updates and "rants and raves" on Myspace, Facebook and Craigslist often make their way before the court, to the detriment of the posting party. So, however tempting it is to vent to your online pals, don't.  

Alienation of affection is not an available action in New Hampshire

Question:

My wife cheated on me and I want to sue her and her new boyfriend for alienation of affections. How do I proceed?

Answer:

An alienation of affection claim is a lawsuit where a spouse sues a third party who is allegedly responsible for the destruction of the marriage. There are three elements that a plaintiff must prove:

1)      The marriage entailed love between the spouses in some degree;

2)      The spousal love was alienated and destroyed; and

3)      Defendant’s willful and malicious conduct contributed to or caused the loss of affection.

However, New Hampshire no longer allows actions for alienation of affection pursuant to NH RSA 460:2 which reads: “No damages shall be allowed to either spouse in any action based on alienation of the affections of the other spouse.” The only states to still allow alienation of affection law suits are: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.

Although New Hampshire does not recognize alienation of affection as a cause of action, New Hampshire is a state that allows fault grounds, such as adultery, in a divorce. Read more here about fault grounds.

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

N.H. Supreme Court holds in Salesky that a guardian may maintain a divorce action

On October 8, 2008 the New Hampshire Supreme Court released an opinion for In the Matter of John Salesky and Jacqueline Salesky. The Court held that a guardian, appointed over the person and estate, may maintain a divorce action on behalf of that person with either the express authority of the Probate Court and as an equitable remedy to prevent an incompetent spouse from having no legal recourse to divorce.  

John and Jacqueline were married in 1983. In 2003, after Jacqueline had left to live with her daughter, John suffered a stroke and then named Jacqueline the co-trustee and co-beneficiary of his trust. John also created separate durable powers of attorney for healthcare, property and financial matters which named Jacqueline as his agent.

 

After John’s stroke, Jacqueline began draining and disbursing significant cash assets. John discovered this and at some time after that John and Jacqueline had an altercation where Jacqueline yelled “John, I don’t know what I’m going to do with you, I think I’m going to have to put you in a nursing home”. Sometime in early October 2004, John left Jacqueline and went to live with his brother and sister-in law (the Saleskys).

 

Later in October 2004, John filed a divorce petition on the grounds of irreconcilable differences. Jacqueline objected to this and asked for the petition to be dismissed because John was not mentally competent to bring it. In April 2005 John had a full psychiatric evaluation and the report recommended that John receive assistance in making major decisions regarding his life. After this evaluation, the Saleskys petitioned the probate court to appoint them as co-guardians over John’s person and estate. The court denied Jacqueline’s request to appoint her guardian because the parties’ marital status was in the throes of dissolution and therefore appointing her guardian was a conflict of interest.

 

After a three day divorce trial, the court ultimately granted the petition for divorce stating that the Saleskys as co-guardians had the authority to maintain the action on John’s behalf and that irreconcilable differences caused the irremediable breakdown of their marriage.

On appeal, Jacqueline attacked the co-guardians ability to maintain a divorce action on several grounds:

 

1)      Jacqueline argued that the co-guardians did not have the authority to maintain the divorce action and that the superior court interpreted the probate court’s order to confer implied authority upon the Saleskys to maintain the divorce action.

 

The court determined that the plain meaning of the words used in the probate courts orders expressly granted the Saleskys as co-guardians the right to marry and divorce on John’s behalf. To hold otherwise would mean that both John and the Saleskys lacked the ability to exercise those rights.

 

The court also examined the letter of appointment for the Salesky’s where they are specifically granted “ the authority to exercise all of the rights and powers set forth in RSA 464-A:26, I and II” and under section I, specifically requires the guardians to “prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate’s assets.” Therefore, these documents together expressly conferred the right to divorce to the co-guardians.

 

 

2)      Jacqueline then argued that despite the probate court’s order the Saleskys could not prosecute the divorce action because the statute did not grant them that power.

The court looks at the language of the statute stating that RSA 464-A:25 sets out the general powers and duties of a guardian over a person, and RSA 464-A:26 sets out the general powers and duties of a guardian over an estate.

 

Both statutes include a catchall provision that says: “The court may limit the powers of the guardian… or impose additional duties if it deems such action desirable for the best interest of the ward.

 

The plain meaning of the catchall provisions is that the duties are not exclusive. These provisions expressly give the probate court the authority to impose “additional duties.” The only limit upon the additional duties is that those must be “desirable for the best interests of the ward.”

 

3)      Jacqueline also argued that the legislature could not have reasonably intended, as a matter of public policy, to grant probate courts the authority to allow guardians to maintain divorce petitions.

 

The court examined a number of cases holding a competent spouse would have absolute and final control over the marriage if a guardian could not maintain an action for divorce.  That kind of situation leaves the incompetent spouse without adequate legal recourse against potential abuse. In addition, the court points out that these policy concerns are evident in this case because while Jacqueline had withdrawn substantial funds from John’s accounts while acting under a power of attorney, the Saleskys were merely maintaining a divorce action that John had brought before he was found to be incompetent.

 

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

Co-parenting tip: Schedule a weekly parenting call

After going through the divorce process, for many couples the last thing that they want to do is have regular contact with their ex-spouse. However, for divorcing couples with children, it is extremely important to maintain communication to effectively co-parent your children. Successfully co-parenting means that both parents will maintain an active, stable role in their children's day to day lives and that the children will be happy and healthier for it.

One technique that parents may try is scheduling a weekly parenting phone call. Instead of several phone calls a week that occur at inconvenient times and break down into arguments, focus communication into one business-like phone call per week. Unless there is an emergency, wait to discuss all issues at the parenting call. The parent with the children should make the phone call to insure that the children are out of ear shot, such as after bedtime.

Plan an agenda for the call, including the following topics:

  • Discuss the upcoming parenting schedule
  • Discuss the children's extracurricular activities and school schedules
  • Discuss academic issues such as homework and report cards
  • Discuss any behavioral issues
  • Discuss any general concerns

 

Tax considerations for divorcing couples

During a divorce, the tax consquences of a settlement often take a backseat to heated issues such as parenting rights and asset division. However, tax consquences can have a very big impact on the outcome of a case and are an important factor to consider.  Attorney Jason C. Brown of Brown Law Offices, P.A. posted an informative piece on his Minnesota Divorce and Family Law Blog with tax tips for divorcing couples. Attorney Brown suggested the following issues to consider during a divorce:

  1. Child Support. Child support is not income to the recipient and is not deductible for the payer. Keep this in mind if your spouse is seeking alimony. Child support payments that they receive are not taxable and, as a result, increase their net income each month dollar for dollar. As a result, the "need" of your spouse will be diminished and you may be able to argue that their imputed gross income exceeds their gross pay coupled with untaxed child support.
  2. Alimony. Alimony is income to the recipient and is deductible for the payer. High income earners can reduce their taxable income by paying alimony. If your spouse's tax bracket is low, the government winds up picking up the tab for a good share of the alimony obligation.
  3. Sale of Homestead. The sale of the marital homestead usually does not involve a taxable event. Capital gains (up to $500,000) from the sale of your marital homestead are not taxable if you've lived there for two of the last five years. Nor is a transfer of title to the residence, allowing your spouse to keep some or all of the equity. Many couples opt to forego alimony payments in, instead, pay a disproportionate property settlement to their spouse. In other words, they "buy off" alimony by giving a larger share of home sale proceeds, or equity, to their spouse. The result? No tax implications for either. Ideal for alimony recipients in a high tax bracket.
  4. Filing Status. The status of your marriage on December 31 of the relevant year determines whether you file as single or married. If you are divorced by that date, you file as single for the entire year. If your case appears to be coming to a close near the end of the year, best to speak with a tax preparer about the consequence of holding up at bit or expediting matters. We find that courts are usually willing to facilitate bringing matters to a close by the end of the year if tax implications in doing so are substantial.
  5. Dependents. While the law provides that the custodial parent is entitled to claim the relevant dependency exemptions, most couples agree to share them. Offering a non-custodial parent the right to claim the dependency exemption under the condition that their child support is current at the end of the relevant tax year provides them with incentive to keep current with payments.
  6. Child Care Credit. Custodial parents who incur work-related child care costs can deduct up to 30% of the cost. It is for that reason that the child support guidelines usually require a custodial parent to assume responsibility for a greater share of daycare expense.
  7. Liabilities and Refunds. Taxes owed, or refunds received, are usually treated as "marital" and are, therefore, split equally among the parties. In the heat of the moment, some spouses will intercept a tax refund and cash it without the other's knowledge. All funds must be accounted for and it is likely that if they do so their share of the final property settlement will be reduced proportionately. Because income is "marital," a tax liability is a shared responsibility.
  8. Attorney Fees. Any fees paid to a lawyer for tax advice are deductible. Ask your attorney for to break out all billable time devoted to tax issues and you can save big.

A good family law attorney will point out these and other issues to consider during your divorce. It is also important to discuss your divorce and the tax consquences of any settlement with a knowledgeable accountant.

Georgakilas: Custody schedules and labels

On August 21, 2008, the New Hampshire Supreme Court released an opinion on In the Matter of Mary Beth Georgakilas and George Georgakilas holding that an approximately equal parenting schedule still entitles one parent to a “primary physical custody” designation.  

The facts of the case are as follows: the parties divorced in 2006 and entered into a permanent stipulation and a parenting plan regarding their son. The parties share joint decision making responsibility (formerly referred to as joint legal custody). The parties also agreed that their parenting time was for approximately equal time and George would have liberal and generous parenting time whenever he was not flying as a commercial airline pilot. In addition, the plan stipulated that for school purposes only, the child’s legal residence was his mother’s home.

 

When the divorce was finalized, the certificate of divorce entered by the court stated that Mary Beth and George had joint legal custody but that Mary Beth had physical custody. George moved to modify the certificate to reflect that the parties had joint physical custody. The trial court denied George’s motion because they interpreted the parenting plan to grant primary residential responsibility to Mary Beth. That because the plan did not state that they shared or had joint residential responsibility, the certificate of divorce correctly complied with the parenting plan and would not be revised. George appealed the ruling to the New Hampshire Supreme Court.

 

The Supreme Court considered the intent of the parties as expressed in their stipulation when deciding this case. Under the plain meaning of the stipulation the parties were to have “equal or approximately equal” residential responsibility of their son. However, the court stated that as a matter of law “approximately equal” is not enough to confer custodial parent status as defined by the statute.

 

RSA 461-A:20 states that: a “custodial parent” is “a parent with 50% or more of the residential responsibility” and a “non-custodial parent” is “a parent with less than 50% of the residential responsibility”. The court determined that a parent with 49% of the residential responsibility is a non-custodial parent by definition.

 

Therefore, because Mary Beth and George chose to use “approximately equal” to describe their responsibilities and George’s absences from New Hampshire due to his job, the court concluded that the trial court did not err when it declined to change certificate of divorce. Unless the parties had agreed to have 50% of the residential responsibility pursuant to 461-A:20, only one of them could be the primary residentially responsible parent.

 

This case boils down to the labels we place upon parenting schedules, whether they be “custody”, “residential responsibility” or “routine schedules.” Often, for a parent the label is very important and that parent wants “sole physical custody” or “joint residential responsibility.” However, what really matters is the schedule itself. Instead of questioning what kind of label has been placed upon the schedule, a parent should focus on whether the schedule allows them ample parenting time and whether the schedule is the most beneficial for their children.

 

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

Caveat Emptor: Buyer beware of do-it-yourself divorce kits

I read an interesting blog post today from Attorney Shannon Cavers of the Houston Texas Divorce & Family Law Attorney Blog. The blog reviews the buyer beware issues of do-it-yourself divorce kits. Attorney Cavers warns: "If you received a medical diagnosis requiring surgical intervention, you would not opt to operate on yourself. The same holds true in law."

Just this morning in the 311th District Court of Harris County, I personally witnessed a pro se litigant present a final decree of divorce. The source of the litigant’s forms were RapidLaw, an internet site offering divorce, adoption, and bankruptcy services across the U.S. 

The family law judges and court staff in Harris County bend over backwards to assist pro se litigants. However, they may not give legal advice to pro se parties. The forms were not prepared to properly dispense with the parties’ 401-K and retirement benefits. Apparently, the documents were insufficient enough to spur the judge urge the litigant to reconsider presentation of the decree as-is. The Judge asked the pro se party where she received the forms. Her response was Rapid Law. The Judge next asked the party if she paid for the forms, and she answered yes. Finally, the Judge directed the bailiff to photocopy the instructions from RapidLaw – presumably to present the information to the State Bar of Texas.

Whether you are downloading forms from one of the myriad of websites offering divorce documents or buying a kit from Barnes & Noble, the consumer should beware that a generic form usually cannot adequately address your unique situation within the confines of your state's specific rules and laws.

If you cannot afford an attorney, consider the following alternatives: 1) Hire an attorney for unbundled services to review or prepare documents for your case; 2) Utilize the New Hampshire Judicial Branch's self-help center for forms and information; or, 3) Call the New Hampshire Bar Association's law line held on the second Wednesday of each month from 6:00 p.m. to 8:00 p.m. at 800-868-1212.

 

New Hampshire's child impact seminar

In 1993 the New Hampshire legislature enacted a law  requiring divorcing couples with minor children or parties in a parenting case to complete a Child Impact Seminar. This seminar, a four hour course, is called “Children First” and addresses the issues of divorce or separation and how they effect the children involved.

As explained on the NH Family Division website, Parents are required to complete the seminar and show the court a certificate of attendance from the program before a divorce decree is issued. The seminar is offered at multiple locations during weekend and evening hours. Parties who do not attend the seminar may be subject to sanctions by the court.

As found on the “Children First” website detailing the course, the seminar discusses several topics, including:

·       Ways to promote self-esteem in your child during this difficult time

·       What you can do to help your children adjust

·       The impact of violence or chronic conflict upon children

·       Behaviors to avoid

·       Helpful communication styles

·       Effective co-parenting skills

·       How to be a role model

·       Alternative dispute resolution

·       Important points to remember

Blog Credit: Marisa Ulloa, Crusco Law Office Law Clerk

What is a First Appearence?

A “First Appearance” occurs in a New Hampshire Family Division court in a divorce involving children or in a parenting petition case. The judge or marital master will talk about the court process, what to expect, and how the parties might settle their issues without litigation. At this time the court may refer individual cases to mediation. Mediation is an alternative process to litigation where a trained neutral third party helps negotiate and resolve disputed issues.

The court will hand out a First Appearance Highlights form that summarizes all of the information given at the First Appearance.

Below are some of the topics covered in a First Appearance:

· Court Process

· Case Management

· Child Impact Program

· Case Manager

· Guardian ad Litem

· Mediation

· Legal Representation

· Parenting Plans

· Child Support

Blog Credit: Marissa L. Ulloa, Crusco Law Office Law Clerk

Charron v. Amaral: Same-sex marriage benefits do not apply retroactively

Today the Massachusetts Supreme Judicial Court issued an opinion in the case of Charron v. Amaral that held that marriage benefits for same-sex couples do not apply retroactively to the Goodridge v. Department of Public Health  decision.

The case involves a couple, Michelle Charron and Cynthia Kalish, who began dating in 1990, moved in together in 1992 and subsequently bought a house together and had a child that both partners adopted. The couple also exchanged rings in a private ceremony in 1994 and obtained a marriage license in 2004 on the first day such licenses were available to same-sex couples. Charron sought treatment for a lump in her breast in 2002, was diagnosed with breast cancer in 2003 and died in 2006. The claim arose as a malpractice case for loss of consortium.

The plaintiffs argued that, but for the ban on gay marriage, they would have been married at the time the malpractice claim arose in 2002, and therefore the loss of consortium claim should be applied retroactive to the Goodridge decision. The SJC disagreed, and held that it was clear that Goodridge was intended to apply prospectively because it was such a radical change in the law that it required time for the legislature to act. Furthermore, the court found that:

to allow Kalish to recover for a loss of consortium if she can prove she would have been married but for the ban on same-sex marriage could open numbers of cases in all areas of law to the same argument.

Although this case involves a malpractice/loss of consortium claim, the opinion has ramifications for divorce matters in Massachusetts. It is likely that, as a result of the Charron decision, same-sex couples who are divorcing will be barred from arguing that but for the ban on same-sex marriage, the couple would have had a long term marriage retroactive to Goodridge. The difference between a long term marriage and a short term marriage can have ramifications on the property division and alimony awards.

Donovan: Enforcing orders for contribution to a child's college expenses

On this blog, we review new domestic relations cases that are issued by the New Hampshire Supreme Court such as the recent Lemieux and Gendron and Plaistek opinions. However, there are many older opinions which are worth reviewing periodically. Here, we will review the case In the Matter of Tatjana A. Donovan and Robert F. Donovan which was issued on April 1, 2005.

The major crux of the case deals with a section of the stipulation which required both parties to contribute to their children’s educational expenses through college in an amount proportionate to their respective incomes. Robert asked the trial court to strike this portion of the parties divorce decree in light of the passage of House Bill 299, which provided: "No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school." RSA 461-A-14, V. The trial court refused, and Robert appealed the order.

The New Hampshire Supreme Court determined that as general rule statutes apply prospectively rather than retroactively. In other words, orders made prior to February 2, 2004, the day that the new statute became effective, that required a parent to contribute to a child’s college expenses were enforceable. Therefore, although no new orders may require contribution by a parent to a child’s college expenses, orders made prior to February 2, 2004 remain effective.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

Lemieux and Lemieux: Reformation of a divorce decree

On June 13, the NH Supreme Court released an opinion on In the Matter of Richard R. Lemieux and Joanne Lemieux. In this case, Richard and Joanne were divorced in 1990. Their final divorce decree included stipulations regarding Joanne’s portion of Richard’s pension plan benefits, including the percentage each spouse would be awarded and the date that it would be divided. In 2001, Joanne filed a claim with the U.S. Office of Personal Management (OPM) and was awarded a monthly amount based on the date upon which Richard became eligible for retirement.

Richard challenged OPM’s decision by arguing that the monthly amount is based on the value of the pension when the initial divorce action was filed, not when Richard became eligible for retirement. Richard’s position is that the stipulation in the divorce decree should be reformed due to a mutual mistake of law.

The Court states that, “It is well established that courts may grant reformation in proper cases where the instrument fails to express the intentions that the parties had in making the contract.” The Court acknowledges that there is a mistake of law and rules that the parties intended to award Joanne a portion of Richard’s pension as of the date of the divorce decree and not as of the date of his eventual retirement.  

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

What are fault grounds?

New Hampshire is a state that recognizes both fault and no-fault grounds for divorce. The no-fault grounds allege that "irreconcilable differences which have caused the irremediable breakdown of the marriage." In other words, the parties just cannot get along and there is no hope of fixing the marriage.

New Hampshire recognizes the following fault grounds:

  • Impotency of either party. 
  • Adultery of either party. 
  • Extreme cruelty of either party to the other. 
  • Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. 
  • When either party has so treated the other as seriously to injure health or endanger reason. 
  • When either party has been absent two years together, and has not been heard of. 
  • When either party is an habitual drunkard, and has been such for 2 years together. 
  • When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. 
  • When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.

In order to prevail in the divorce on fault grounds, the party alleging the fault must be an "innocent spouse." For example, a party cannot allege that the breakdown of the marriage was caused by the other parties adultery, when that party contributed to the breakdown by being an habitual drunk. Even if a party does not prove fault grounds, they are still entitled to a divorce based upon irreconcilable differences.

 

 

Gender equality in alimony

A recent article on CNN highlighted the modern day movement that it called "manimony," where a wife pays alimony to her husband. Historically, alimony derived from the principle that a husband has a duty to support his wife. The ecclesiastical courts in England only recognized judicially approved separations, and so the husband continued to have a duty to support his wife even after a physical separation. Today, that duty to provide support after a legal separation or divorce is gender-blind and the court will award alimony where appropriate, regardless of which spouse pays.

Fees for Processing a QDRO

Once the divorce, either by agreement or court order, becomes final, retirement accounts are often divided by a qualified domestic relations order (commonly called a QDRO) as ordered in the divorce decree. Attorneys must go about drafting the QDRO, getting it approved by the court and the plan, and then have the plan process it. A recent blog by Divorce Law Journal's Diana L. Skaggs warns about plans charging large fees to process QDROs, and even to approve their own sample forms. Attorney Skaggs' is right on the money, so to speak, to advise checking with the Summary Plan Description to determine the fees charged by the plan and who the fee is charged to. Allocating the fee in the divorce decree will save headaches later on when the issue pops us.

An Alimony Primer for New Hampshire Residents

Alimony, also called maintenance or spousal support, is payments made to a spouse or former spouse under a court order. Alimony in New Hampshire is "rehabilitative' and is based on the theory that both spouse should be able to provide for their own financial needs. Therefore, when alimony is awarded, it is designed to encourage the supported spouse to establish an independent source of income. However, the New Hampshire Supreme Court has ruled  that this theory is not controlling when the alimony recipient "suffers from ill health and is not capable of establishing an individual source of income, or where the supported spouse in a long-term marriage lacks the requisite job skills to independently approximate the standard of living established during the marriage."

In order to award alimony, the court must find that the supported party lacks sufficient income, property, or both to meet their reasonable needs and be self-supporting and that the paying party can provide for their own reasonable needs and those of the other spouse. The court should also consider the style of living to which the parties have become accustomed during the marriage in determining their reasonable needs.

How much will the court award in alimony? The court relies on several factors to determine the amount of alimony to be awarded, including:

  •  the length of the marriage;
  • the age, health, social or economic status, occupation, amount and sources of income, the property awarded in the divorce decree, vocational skills, employability, estate, liabilities, and needs of each of the parties;
  • the opportunity of each for future acquisition of capital assets and income;
  • the fault of either party;
  • the federal tax consequences of the divorce order. 
  • the economic contribution of each party to the value of their respective estates
  • the non-economic contributions to the family unit.

To read New Hampshire's law on alimony, click here.

Divorce and Social Secuirty Benefits

An issue to consider when divorcing is how the divorce will affect your ability to get social security benefits through the other spouses records. These issues can be especially important for older divorcing couples who are counting on social security benefits as part of their retirement plans. It is important to consult with your attorney regarding how the divorce may affect your right to receive social security benefits on your spouses record.

Ora Schwartzberg, a New Hampshire attorney and mediator, posted an e-newsletter titled "The Impact of Divorce on Social Security Survivor Benefits" that explains: 

There are two major types of Social Security benefits: retirement benefits and survivor benefits. In general, a divorced spouse who is eligible for survivor benefits would also be eligible for retirement benefits. Retirement benefits are monthly payments that represent a portion of what your former spouse receives monthly and is paid out while your spouse is still living. Survivor benefits are monthly payments that widows and widowers are entitled to when their spouse dies, assuming that the spouse worked long enough to have earned this benefit under the Social Security system.

In order to qualify for retirement benefits, you must have been married for at least 10 years. You can collect retirement benefits on your former spouse's Social Security record if you are at least 62 years old and if your former spouse is entitled to or receiving benefits. Generally, if you remarry, you will not be able to collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment). 

If your divorced spouse dies, you can receive survivor benefits if the marriage lasted 10 years or more. Similar to retirement benefits, you may not be able to collect benefits if you are remarried unless your later marriage ends (whether by death, divorce or annulment). If you are at least 60 years old when you are receiving benefits, the amount of your benefits will not affect the other survivor's benefits amount.

For more information on social security benefits, check out the Social Security Administration's on-line help center here.


 

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Short Sale: Selling Your Home for Less than the Costs and Mortgage Balance

As foreclosures are on the rise, many homeowners are seeking alternatives to protect their credit and move on. One such alternative is a "short sale." A short sale is when the costs of selling the home (i.e. realtor's commission, transfer taxes) and the mortgage payoffs are greater than the proceeds received from the sale. The seller must then either bring funds to the closing to complete the transaction, or work out a deal with their lender to accept less than the amount due on the mortgage.

A recent posting from Barbara Strapp Nielsen on the New Jersey Law Blog titled Short Sales When Loans Exceed the Value of a Home provides insight and analysis on this topic. Attorney Nielsen writes:

Unless a homeowner is able to pay off all of the mortgages which are secured by his property, the homeowner will not be able to convey good title to a buyer.  If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage.  For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan.  This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision.  This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents.  Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS.  This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner.  This was so even though the homeowner received nothing from the sale.  However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007.  This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence.  The amount of the debt forgiveness can be up to $2.0 million.  Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability.   This exemption for forgiven debt, however, is only temporary and expires within three years.

Divorce and the Housing Market in New Hampshire

Reports of the housing crunch are all over the Internet, the newspapers and the television. Here in New Hampshire, foreclosures are on the rise. In 2007, banks foreclosed upon 2,000 New Hampshire property owners, and foreclosures are expected to reach 3,000 for 2008. As of the 2007 fourth quarter, 18,000 New Hampshire loans had past due payments.

What can you expect if you are in the process of divorce and one of the thousands of New Hampshire property owners experiencing trouble making your mortgage payments? The court has jurisdiction under NH RSA 458:16,I (h) to order the sale of the home only if the party residing in home does not have sufficient financial resources to pay the debts and obligations of the property in a timely manner. These debts and obligations include the mortgage payments, taxes, insurance and ordinary maintenance of the home. However, the continuing decline in the housing market can spell trouble for divorcing couples who are trying to stay afloat even when the parties agree to list the home for sale or the court orders the home to be placed on the market. According to the New Hampshire Association of Realtors, home sales in Hillsborough County New Hampshire have dropped 26.8% and the median home price has dropped 7.8%. Although these numbers have not seen as drastic a drop as the national numbers, divorcing couples in New Hampshire need to be prepared to sell at lower prices after a longer stay on the market.

For more information about the current New Hampshire housing market, Laura Knoy recently hosted a program on NH Public Radio that can be found here.

What is a Guardian ad Litem?

A guardian ad litem, often referred to as a "GAL," is a person appointed by the court to represent the best interests of an individual. Unlike a guardian, a GAL does not manage the affairs of of persons, nor do they act as their attorney.  

In a divorce or parenting petition proceedings, the GAL is usually appointed to represent the best interests of the children. The court charges the GAL with the responsibility of investigating designated issues and making recommendations to the court. Issues can include parenting responsibility, parenting schedules, ability of either parent, influence of significant others, and special needs of the children. The GAL is a valuable tool for the court since the GAL can gather a lot of information to provide to the court and aid in making a decision regarding parenting rights and responsibilities.

For more information on Guardian ad Litems, the New Hampshire guardian ad litem board has useful information on their site.

College expenses

Besides baseball and daffodils, spring is also the time for college financial aid applications. A recent post from Jennifer Weisberg Millner on the NJ Family Legal Blog regarding the responsibility of parents for their children's college expenses highlighted how different laws are from state to state. Although parents in New Jersey may be ordered to pay for their children's college tuition and expenses, in New Hampshire, no court order shall require a parent to pay for educational expenses beyond high school. However, under the NH Supreme Court's decision in Donovan, a court may enforce orders made prior to February 2, 2004 (the date that the law went into effect) that required a parent to to pay for college.

Pets and Divorce

A very concerning issue for many people facing divorce is what will happen to the family pet. Currently, the law recognizes pets as property which will be divided in a final divorce decree pursuant to RSA 458:16-a. Property distribution factors were recently discussed here. A court is more likely to permanently award a pet to one of the parties rather than ordering a "shared parenting" arrangement. On the one hand, the law is not able to recognize that pets have strong emotional ties and separation from that pet will be much more detrimental to a family member than the loss of a kitchen table or a television. On the other hand, enforcing a court order with a "shared parenting" schedule and calls for division of vet and doggie daycare expenses could place an additional burden on the all ready over-worked courts.

Attorney Danny Meeks, who publishes the Pet Trust Law Blog, recently wrote about these issues in a posting called  "Is your pet a family member subject to 'shared parenting.'" Attorney Meeks sited interesting pending legislation in Massachusetts that would grant court's the authority to restrain a party from a pet in a temporary domestic violence restraining order.

Property distribution: Equittable is not always equal

New Hampshire law grants courts the authority to order an equitable distribution of property between parties. Although the law presumes that an equal distribution is also an equitable distribution, the court may decide that equitable is not equal when one or more of several factors are present. Some of the factors include the 1) the duration of the marriage, 2) the opportunity of each party for future acquisition of capital assets and income, 3) the need of the custodial parent to occupy or own the marital residence for the benefit of the children, 4) tax consequences of the property settlement, 5) expectations of retirement assets and 6) the fault of either party. The law includes fifteen different factors, including the broad final factor of “any other factor that the court deems relevant.” Click here to read all of the factors listed in the property settlement law.