In Re Martin: NH Supreme Court weighs in on relocation and dispute resolution

 

The New Hampshire Supreme Court recently issued an opinion In the Matter of Patricia Martin and Michael Martin on the issues of relocation and language in the parenting plan requiring either party to seek neutral third party assistance in resolving disputes prior to filing with the court.  

Neutral Third Party Requirement

 

The court form standard parenting plans include language under the “methods for resolving disputes” paragraph that require parents to seek assistance in resolving disputes before heading to court. Specifically, the standard language reads:

In the future, if the parents have a disagreement about parenting issues, the parents shall try to work it out in the best interest of the child(ren). If the parents are unable to work out the disagreement, they shall seek the help of a neutral third party to assist them. Only if the parents are unable to work out the disagreement after seeking third party assistance will they ask the court to decide the issue.

On appeal, the mother argued that the court use of the word “shall” interferes with the parties’ rights to access the courts to resolve disputes. The court disagreed and stated that while the New Hampshire Constitution “provides that all citizens have a right to the redress of their actionable injuries … the article does not prohibit all impairments of the right of access to the courts.” In fact,  reasonable restrictions for the filing of lawsuits do not automatically violate the constitutional guarantee to speedy justice.

 

            The court reasoned that the third party assistance provision did not impinge on the mother’s rights because, as the court stated: “It imposes no specific requirement that the assistance of a neutral third party must be of any particular nature or duration or even that the third party must have actually provided assistance. It permits either party to seek judicial relief, as long as that party demonstrates that the parents first sought the assistance of a neutral third party.”

 

            In practice, the discussion in the Martin case is something to keep in mind when entering into a parenting plan. If you do not want to restrict yourself or the other parent in such a way, you need to find alternative language to agree upon or persuade the court to order. Also, if you all ready have this language in your parenting plan, you are required to seek out some manner of neutral third party assistance to try to resolve the dispute before you may file. If you do not, your petition may be dissmissed until you comply with the requirement.

 

Relocation

 

Relocation is a hot topic these days. Families, often for jobs, are on the move. New Hampshire law provides that a parent seeking permission to relocate bears the initial burden of demonstrating that the relocation is for a legitimate purpose and that the proposed location is reasonable in light of that purpose. Should the moving party meet that burden, the other parent must prove that the proposed relocation is not in the best interests of the children. The trial court had denied the mother’s request to relocate, finding that the mother’s purpose for moving was to

avoid ongoing interaction with the father and to “get away from [him].”

 

On appeal the mother argued that the statutory term “legitimate” means she only need demonstrate a “subjectively legitimate reason” for relocating and that the proposed relocation must only be objectively reasonable in light of that purpose. The court never answered whether this proposed interpretation of the statutory word “legitimate” was proper because the mother’s argument failed even under her own proposed interpretation. Even if the court accepted the mother’s definition of “legitimate” as a subjective determination, upon the facts of the case, she could not prevail because the trial court had found that the move was not a legitimate purpose, a legal conclusion that she did not challenge.

 

What does this mean? The court left the discussion of the meaning of a legitimate purpose for another day.

                                         

Divorce, short sales and foreclosures

A few years ago when the real estate market was booming, divorcing spouses had little issue refinancing with cash out to buy out the other or selling the marital home and dividing a tidy profit. Times have changed, and today, the issue is often what to do with a sinking ship. The Union Leader has published several articles lately about short sales and foreclosures, and the differences between the two.

First, there is a distinction between a homeowner being short and a short sale. A homeowner is short when he owes more on his mortgage to the bank than a sale can procure. A lender must agree to the sale of a property at a price that is less than what is owed. A short sale occurs when the closing of the property has happened.

A foreclosure, on the other hand, is the process where the bank takes your home when you have not been able to keep up with the mortgage payments. Foreclosure has a dramatic and lasting effect on credit scores, dropping scores by as much as 300 points.

If you are in the process of divorce, and your home has little to no equity, there are certain issues that you and your attorney need to keep in mind. If both spouses are borrowers for the mortgage, how will one spouse refinance to remove the other spouses name from the mortgage? Lenders are reasonably cautious about lending over 80% of the value of a home. If the home cannot be refinanced, and will be placed on the market for sale, what will happen if the home is short? Will the spouses need to come up with the money at the time of the sale, or will they negotiate a short sale with the lender? A carefully drafted proposed order or agreement will make sure that you are protected in the event of each possibility.