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. 

 

 

Termination of Parental Rights or Surrender of Parental Rights: What's the Difference?

I have received many questions about the similarities and differences between a surrender of parental rights and a termination of parental rights. While the end result is often the same when the parental rights and responsibilities of a parent are permanently severed, there many differences to be aware of. 

Similarities

• Both are proceedings that can end in the permanent severing of all parental rights and responsibilities of a parent.

• Parents who are surrendering or may have their parental rights terminated are entitled to an attorney, and if they cannot afford one the court will appoint an attorney to represent them.

• Both proceedings are confidential.

Differences

• In a surrender of parental rights, all the parties agree to terminate the rights of a parent; a termination of parental rights can be either contested or uncontested. A TPR petition does not always result in a termination of one or both parents parental rights. 

• A parent in a surrender is entitled to counseling at the expense of the petitioning party about the parent’s decision to place the child up for adoption.

• The court is required to appoint a guardian ad litem to represent the best interests of the child in a termination proceeding; a surrender petition does not require the appointment of a guardian ad litem.

• A surrender of parental rights requires that there be a pending adoption, where a termination of parental rights does not. An adoption does not always follow a termination of parental rights case.  

• A termination proceeding requires that the court make a finding, beyond a reasonable doubt, that grounds exist to terminate the parental rights of a parent and that it is in the best interests of the child. A surrender does not require such findings, only the agreement of the parties that the surrender take place.

• TPR cases are heard in the Circuit Court- Family Division, and surrender cases are either in the Circuit Court – Family Division or the Circuit Court – Probate Division depending on the specific facts of the case.

The Facts about Petitions to Terminate Parental Rights

Petitions to terminate parental rights involve fundamental parental rights and responsibilities. Because the statutory grounds to terminate must be proved beyond a reasonable doubt, and the judge must also find that it is in the child's best interests, it is important to understand the legalities and make sure that your case is well-presented. For more information, call Crusco Law Office, PLLC at 603-627-3668.

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!

Second parent adoption for same-sex spouses: Is it necessary?

Second parent adoption, also referred to as co-parent adoption or stepparent adoption, is the process where two parents, one who is a legal parent and one who is a legal stranger, create a permanent and legal relationship between the child and both parents.  The American Academy of Pediatrics, which supports same-sex second parent adoption, and explains these reasons for insuring both parents have legal rights:

Children deserve to know that their relationships with both of their parents are stable and legally recognized. This applies to all children, whether their parents are of the same or opposite sex.

 

When two adults participate in parenting a child, they and the child deserve the serenity that comes with legal recognition.

 

Denying legal parent status through adoption to co-parents or second parents prevents these children from enjoying the psychologic and legal security that comes from having two willing, capable, and loving parents.

New Hampshire has allowed second parent adoption for same-sex couples who are married since 2007, where previously only opposite sex spouses or single persons could adopt. This change came about with the recognition in New Hampshire of civil unions in January 2008, and eventually same-sex marriage in January 2010. It is important to remember that in New Hampshire the parents must be married. Some hospitals in New Hampshire will list a married same-sex couple as co-parents on the birth certificate of their child.

 

However, even with both parents listed on the birth certificate, it is still important to seek an adoption by the non-bio parent. Marriage entitles a non-biological parent to a presumption of parenthood, but that presumption is rebuttable. In other words, parenthood could be contested, and without solidifying parental rights and responsibilities with an adoption, the non-biological parent is vulnerable. Second, most other states do not recognize same-sex marriage, and legal parenthood gained by marriage for a same-sex partner may not be acknowledged in a different state. Adoption creates a binding court decree that is recognized by all states, whether passing through or moving to.

 

The second parent adoption will protect the child's right to inheritance, health insurance, social security benefits and child support. The adoptive parent will have enforceable rights of custody and visitation, and parental rights and responsibilities in the event the biological parent passes away, regardless of the jurisdiction the family resides in. Additionally, when an emergency medical decision needs to be made for the child, the adoptive parent will have the ability to make the decision.

 

Other Resources:

 

Nashua Family Division Opens

The 9th Circuit Family Division at Nashua is now open. The Nashua Family Division will serve the Hudson, Hollis and Nashua communities.The family division has jurisdiction over divorce, parenting, child support, guardianship, termination of parental rights, abuse/neglect, CHINS, and some adoptions. The courthouse is located at 30 Springs Street, and the phone number is 603-882-1231. For other family division locations, check the court website.