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."

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.  

           

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. 

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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. 

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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. 

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, 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. 

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.