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.

 

On April 1, 2009 the Laconia District Court and Laconia Family Division will open in new locations. Both courts will be located at:

The Laconia Courthouse
26 Academy Street
Laconia NH 03247
District Court: 524-4128
Family Division: 524-7755

The clerk’s offices for both courts is in the process of moving from March 25th through March 31st , and therefore will be closed during that time. Hearings will proceed as scheduled at the current locations through March 31st, as well as requests for emergency relief.  

Source: New Hampshire Law Library.

I previously posted about Governor Lynch’s plan to close the budget shortfall by closing eight district courts, three of which house family divisions. One of those courts is the Colebrook District Court and Family Division, located in Northern New Hampshire’s Coos County. The Union Leader published an article today by Lorna Colquhoun raising concerns about the closure of the Colebrook District Court in particular.

One issue is the greater distances small town police officers will have to travel to court, not only because of the additional cost, but also due to additional time that it will take them away from their duties in the town.

"It presents a big problem," said Pittsburg police Chief Richard Lapoint, who is his town’s only full-time officer. "Time is a big factor. If I’m in Colebrook and something happens back here, I can respond just as quick as state police. From the police station to Lancaster is 55 miles and that can take an hour and 20 minutes to get back here."

Additionally, if the Colebrook court closes, parties will need to travel much farther to appear before the judge. Transfering operations from a court such as Hooksett District Court & Family Division to Concord District Court & Family Division where the locations are just thirteen miles apart with a large highway to travel up will not create such a hardship for the litigants. However, closing Colebrook and moving operations to Lancaster District Court creates a distance of at least thirty-seven miles, longer if the party is coming from the North side of Colebrook.

Colebrook police Chief Steve Cass and Lapoint cite

the example of a young mother in either community in need of a protective order. "Take a mother of two, who might be out of work," Cass said. "Dad has the only vehicle and now she has to try to get a ride to Lancaster to get before a judge."

If you have concerns about the court closures, make sure to contact your representative about the budget bills, which are due out of the finance committee on April 2nd and for a full house vote on April 8th.

This week the New Hampshire House will vote on HB 436, a bill that would legalize same sex marriage in New Hampshire and allow any civil unioned couples to obtain the legal status of marriage. Currently, Massachusetts and Connecticut are the only states that allow same sex marriage. Several states, including New Hampshire, allow same sex couples to enter into civil unions. According to a recent article in the Union Leader, Govenor Lynch, who supported civil unions, opposes gay marriage.

 

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.

One of the most important things that parents in separate households can do for their children is cooperatively co-parent. Successfully co-parenting allows both parents to be involved in a child’s day to day life. I recently came across a useful article published by the University of New Hampshire Cooperative Extension titled "Co-parenting after Divorce."

If you are currently going through a divorce or parenting case, take the opportunity to discuss your parenting rights and responsibilities, and the roles that each of you will play. Work those discussions into your parenting plan. The article provides a detailed chart with questions about household expectations, education and moral upbringing, peers and social considerations and health care decisions that you and the other parent can use to start the discussions.

Additionally, consider the road that you and the other parent do not want to go down. One of the most important aspects of co-parenting is keeping the children out of the middle. The article points out that:

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle.

If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself. 

Explore these behaviors that you and the other parent agree you will both avoid, and work any agreements into the parenting plan as well.

 Finally, remember that you and the other parent probably will not agree on every issue. 

Accept that you and your ex-spouse may differ on key parenting issues. Try to work on finding common ground, especially on the most important issues. Communicating about a few issues is better than not having communication at all.

On March 5, 2009 the New Hampshire Supreme Court released its opinion on In the Matter of Jamie Huff and Lawrence Huff. This is an important decision, in that it defines parental rights and plainly rules that the family courts do not have jurisdiction to award visitation to an unrelated third party over the objection of a fit parent. It is important to note that although the court may not award an unrelated third party visitation, New Hampshire does have statutory authority for awarding grandparents and step-parents visitation with children.

The facts of the case are as follows: Jamie and Lawrence married and in July of 2006 their son was born. During subsequent divorce proceedings, Lawrence was sentenced to three to six years in State Prison. At the final hearing Lawrence requested one full weekend of parenting time a month with his son  even though the prison visiting hours were only on Saturdays for a few hours. Lawrence planned to have one of two close friends facilitate visitation and have his son spend the rest of the weekend with his two other children. In other words, Lawrence wanted to essentially delegate his remaining parenting time to Kristen or Cheryl. The trial court adopted Lawrence’s proposed parenting plan, over Jamie’s objection.

Jamie appealed the decision to the NH Supreme Court arguing that the award of parenting time to a third party over her objection infringes on her fundamental right to parent her son. The NH Supreme Court first noted that the trial court did not expressly grant visitation to a third party but they granted visitation to an incarcerated father who then delegated his visitation to a third party. The court also examined the effect incarceration has upon parental abilities and whether or not this type of handing over visitation to a third party is equivalent to granting that third party visitation outright.

Ultimately the Court held that the incarcerated parent may not designate a third-party caregiver, over the objection of the other parent, absent a finding that the non-incarcerated parent is unfit. Where both parents are fit, the trial court may only award the incarcerated parent that visitation time which he can actually exercise. In this case, neither Jamie nor Lawrence has been declared unfit. Thus, the trial court’s authority is limited to awarding visitation to the incarcerated father that he can actually use to visit with the child. Time allocated to Lawrence beyond that, which is then delegated to a third party, is equivalent to awarding an unrelated third party visitation rights.

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

The New Hampshire Bar Association has published its revised public information pamphlet on bankruptcy law. The pamphlet is a great source of information for the public and explains the bankruptcy process and what is can and cannot do for you. However, the pamphlet provides general legal information and should not be substituted for competent legal advice on your specific situation.

The pamphlet explains that:

Bankruptcy is a legal proceeding in which a person who cannot pay his or her bills can get a fresh financial start. The right to file a bankruptcy proceeding is provided by
federal law (Title 11), and all bankruptcy cases are handled in federal court. Filing
bankruptcy immediately stops most of your creditors from seeking to collect debts from you, at least until your debts are sorted out according to the law. Bankruptcy will not stop criminal or government proceedings, nor most domestic relations matters.

It also addresses the common misperception that you will not be able to own anything after filing for bankruptcy:

You can keep your exempt property and anything you obtain after the bankruptcy is filed. However, if you receive an inheritance, a property settlement, or life insurance benefits within 180 days after filing for bankruptcy, that money or property may have to be paid to your creditors if the property or money is not exempt.

The Union Leader’s Kathryn Marchocki reports that included in Governor Lynch’s budget are plans to close eight district courts across New Hampshire. Governor Lynch hopes to save 2 million dollars by closing the courthouses. However, the savings come at the cost of making access to the judicial system more difficult for families. As the Union Leader’s article points out, families who would have gone to the Colebrook District Court for relief would have to drive 37 miles to the Lancaster District Court if the plan goes through.

The courts that could close are as follows:

  • Colebrook to merge with Lancaster
  • New London to merge with Newport
  • Claremont transfer operations to the Sullivan County facility in Newport
  • Plaistow to merge with Salem
  • Milford to merge with Merrimack
  • Hooksett to merge with Concord
  • Keene to transfer operations to Cheshire County facility in Keene
  • Hillsborough to merge with Henniker.

New Hampshire district courts have jurisdiction to hear domestic violence petitions, small claims, landlord tenant matters, minor crimes and violations and civil cases in which the disputed amount does not exceed $25,000. In counties that do not yet have family divisions, the district courts also hear juvenile matters. In addition, in the counties that have formed family divisions, many of the district courts house the family divisions that hear divorces, parenting petitions, child support, guardianships, termination of parental rights, abuse/neglect cases, juvenile matters, and some adoptions.

The family divisions that will be affected under Governor Lynch’s plan are located in the Colebrook, Claremont and Hooksett District Courts, who will all transfer operations to other county courthouses. Additionally, families in need of a domestic violence protective order would have to travel to other courthouses to gain access to the judicial system.