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. 

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. 

Consultation Policy

I provide free consultations to prospective clients who are interested in retaining an attorney for their legal matters. The consultation is a good opportunity to get to know each other, and see if we are a good fit. After hearing about your case, I will be able to provide you with information, feedback and likely outcomes. I can explain the fee structure and the potential costs of litigation, and answer questions that you may have. A consultation is not an appointment where I will provide court documents for your use or prepare you for a hearing.

Potential clients often ask if I will provide a phone consultation, and the answer is generally no. I like to meet with potential clients face to face, and it is often important to review paperwork such as court orders, a lease, or financial records. That is a difficult task over the phone. I will consider phone consultations for clients who live outside of the state but are looking for New Hampshire counsel on a case by case basis.

Although the consultation is free, I require a credit card to secure your appointment. Unfortunately, it has been my experience that sometimes people who schedule appointments do not show up. Therefore, my policy is to have a credit card on file at the time the appointment is scheduled, and in the event that you do not show up for the appointment, a $195 missed appointment fee will be charged to your credit card. There is a 24 hour cancellation policy; however, in the event of an emergency such as illness, inclement weather, or car trouble, exceptions will be made to the 24 hour rule so long as you call prior to the appointment time.

Please feel free to call the office at 603-627-3668 to schedule an appointment.  

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.

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.  

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.

Court filing fees increase as of July 1, 2009

On July 1, 2009, the New Hampshire Supreme Court issued an order increasing the filing fees in all cases. The filing fee for a divorce without children is now $205, and a divorce with children or a parenting petition is now $207.

According the the media advisory posted by the court, the fee increase was necessary to continue to fund the services provided by the judicial branch.

Chief Justice John T. Broderick Jr. said the court's decision to change the fees came after state lawmakers asked each branch of state government to find ways to increase state revenue during a severe economic downturn. The Judicial Branch had suggested generating more revenue through fee changes during recent budget negotiations with House and Senate members.

“We have agreed to keep almost 60 staff positions open during the next biennium and will manage with reductions in our operations to meet the new biennial budget,” Chief Justice Broderick said. “In order to keep the system functioning and avoid even further reductions, we felt we had to ask court users to shoulder some of the economic strain on our state during this very difficult time, " the Chief Justice said. "We view our decision as a necessary step we had to take to assist the state in meeting its budget.These are unprecedented economic times,” he added.

 

What is the difference between a CASA and a GAL?

I had a conversation today in which the person stated that most Guardian ad Litem's are volunteers, and that it is very unusual to have a GAL who is paid for his services. I thought this topic was worth a blog post to clear up this misconception that seems to derive from the common mix up between a CASA and a GAL.

As discussed previously on this blog, a GAL is a professional appointed by the court to perform an independent investigation and to make recommendations to the court regarding the best interests of a child. A GAL may be appointed in all types of family law cases, from divorces to guardianships, and is paid for her services. GALs are not volunteers, although most GALs work for drastically reduced rates and work far more hours on a case than are billed.

On the other hand, a Court Appointed Special Advocate or CASA is a trained volunteer who serves as an advocate for children in abuse or neglect cases. An abuse or neglect case is a type of case brought to the court by the Division of Children, Youth and Families under the Child Protection Act to protect the health, safety and welfare of a child. Although a CASA's role is very similar to that of a GAL, a CASA only works on abuse or neglect cases or derivative termination of parental rights.

Guardian Ad Litem fees in New Hampshire

When parties disagree about the parenting rights and responsibilities of each parent, often the court appoints a Guardian Ad Litem. This adds an additional time and cost to a divorce or parenting case. As with attorney fees, the cost of GAL can vary depending on the rate that he charges and the time demanded by the complexity of the case. 

A GAL can be paid through "private pay" or through the "court fund."  When a GAL is paid through a"private pay" case, the court's order of appointment apportions the payment of the GAL's retainer. The cost is not always split 50/50, and the division of the fees is reviewable at a final hearing. In New Hampshire, the retainer usually ranges between $1,000 and $1,500. Additionally, the hourly rate varies from $60 to $100 per hour.

When one or both parties cannot afford to pay for the GAL, the court may order the payment of services from the Guardian ad Litem court fund. When a party qualifies to use the court fund, the GAL is paid for her fees through the court's fund. However, a party is required to contact the New Hampshire Office of Cost Containment to determine their ability to repay the fund for their share of the GAL services in their case.

 

Attorney's fees in family law

Divorce is a time of great financial stress on a family. Throughout the process, the family often maintains separate households, has debts that need to be paid, and then also need to pay an attorney. Before you hire an attorney, you should have a clear understanding of the fees that you will be charged, as well as what expenses you will be responsible for. It is always best to sign a fee agreement, which will outline the fees, expenses and retainers.

Family law attorneys and their staff generally charge by the hour in increments such as every six minutes. You will be billed for any time spent on your case, including meetings, emails, drafting pleadings and correspondence, telephone calls, hearing preparation, travel and waiting time at court. Hourly rates vary widely, depending mostly on experience. Family law attorneys cannot charge contingent fees where they are paid by a percentage of an amount recovered (for example a portion of a child support arrearage).

A client will often be asked to provide a retainer, which is a sum of money paid up front to secure payment of any fees that are incurred. A retainer will range from very small ($500) to very large ($10,000) depending on the attorney that you hire and the level of complexity of your case. Although most retainers or the unused portion of the retainer are refundable, sometimes the retainer is not refundable.

Finally, attorneys will charge for a variety of expenses, including filing fees, sheriff fees, long distance phone calls, fax fees, copies, postage and mileage. Generally, if the fee relates to your case, whether it be a $21.00 fee from the sheriff for serving papers or a $500.00 fee from a stenographer for a deposition, you will be charged for the expense.

 

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