The Facts

Husband and Wife divorce after forty-two years of marriage in 2005. The divorce decree divides the property and requires the Husband to pay $25,000 per year for ten years. However, the decree provided that alimony would stop if the Wife cohabitated with “an unrelated adult male.”

In 2010, the Wife moved from her home, and rented it to reduce her expenses. She moved into the upper level of a single family home that was owned by a man she met through an online dating service. The man lived on the lower floor, and they had shared space on the middle floor of the home. The Wife did not pay rent, but she did pay $300 per month for food and often cooked for him.

The Husband stopped paying alimony when he learned of the move, and Wife sought enforcement of the alimony obligation. The trial court ruled that the Wife was not cohabitating under the terms of the decree and enforced the alimony obligation.

The Appeal

The Husband appealed the trial court’s order, initially arguing that the trial court erred in concluding that the Wife was not cohabitating. However, at oral argument the Husband abandoned that argument, and instead argued that the trial court did not a have a workable definition of cohabitation and urged the court to adopt a standard.

The Holding

The Supreme Court defines cohabitation as “a relationship between persons resembling that of a marriage.” Whether two people are cohabitating will depend on the facts and circumstances of each particular case. The Supreme Court offered guidance on factors to be considered:

  • Whether the couple is living together continually
  • What the financial arrangements between the couple are and to the extent that they are entangled, including whether there are shared expenses, to what extent one supports the other, whether there are shared investments or retirement planning, if the couple have joint bank accounts, and whether there are life insurance policies naming the other.
  • The extent of the personal relationship, including the intimacy of the connection, shared vacations, shared friends and social connections, and a sexual relationship (although not necessarily dispositive)
  • Whether the couple share and enjoy each other’s personal property, such as household furnishings, appliances, vehicles, and personal items, such as toiletries or clothing
  • The age of the couple may be an important consideration, which may give more or less weight to the support of one by the other and estate planning providing for children of prior relationships
  • Whether friends, family or the community view the couple was engaging in a personal intimate relationship

The Takeaway

The guidance provided in this case should assist a trial court in determining whether a coupld is cohabitating, even though the facts and circumstances in each particular case. Perhaps the old adage “if it walks like a duck, and quacks like a duck” is most appropriate.   
 

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.  

Please check out my recent You Tube video on the topic of same-sex divorce in New Hampshire. We’ll review length of marriage considerations, parenting rights for same-sex couples, and special property distribution issues in divorces for same-sex partners.

If you are a birth mother considering adoption, these are the top 5 things you should know about New Hampshire adoptions:

  • You have the right to have an attorney help you through the adoption process and you will not be charged for attorney services. The adoptive parents pay for your legal fees, but the attorney will work for you.  
  • Birth mothers can receive reasonable birth-related. expenses after choosing an adoptive family which are paid for by the adoptive parents
  • You can be as involved as you want in the selection of your child’s adoptive family and you can choose the degree of openness of the adoption.
  • You have the right to change your mind about adoption at any time until the consent becomes final. You will not be able to legally relinquish your rights to your baby until 72 hours after the child is born.
  • Adoption can be a difficult emotional process, and you do not have to go through it alone. An experienced attorney will help you through the legal process, and you are entitled to counseling to assist you with your feelings about the adoption.

If you are a birth mother considering adoption, please contact me at anytime, and I will get back to you right away to  answer your questions and meet with you at your convenience at your home, at the hospital or at my office.

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.

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!

The New Hampshire Supreme Court recently issued an interesting opinion in the matter of Elter-Nodvin v. Nodvin. It is not a traditional family law case, ie divorce or parenting, but rather a constructive trust matter. Nevertheless, the holding has ramifications in the family division.

The Facts

Husband files for divorce from wife. Family court issues an anti-hypothecation order, which restrains the parties “from selling, transferring, encumbering, hypothecating, concealing or in any other manner whatsoever disposing of any property, real or personal, belonging to either or both of them.” While divorce is pending, husband changes his beneficiary on his life insurance and retirement accounts from Wife to their children. Husband dies before divorce is accomplished. Wife sues children in Superior Court seeking to impose a constructive trust to recover the proceeds from the life insurance and retirement accounts. Superior Court dismisses wife’s claims against children.

The Appeal

The wife appealed the trial court’s decision dismissing her petition, arguing that the husband’s change in beneficiaries from wife to children violated the anti-hypothecation order and required the imposition of a constructive trust in favor of the wife over the proceeds. The wife also argues that the husband violated the order when he changed beneficiaries because those actions hindered the trial court’s ability to distribute the assets according to the purpose of the anti-hypothecation order.

The Holding

The court holding is interesting, and contrary to the conventional wisdom that changing beneficiaries on insurance or retirement accounts violated the anti-hypothecation order. Instead, the Supreme Court declared that the plain language of the anti-hypothecation order that required the parties to refrain from disposing of property allowed the husband to make the changes to the beneficiaries, and in no way impeded the family division from making an order requiring the husband to name the wife as beneficiary. The Supreme Court reasoned that the wife did not possess a vested property interest, and absent a property interest, there could be no violation of the order. Therefore, the wife could not base the imposition of a constructive trust on the alleged violation of the anti-hypothecation order.   

The Takeaway

At a temporary hearing, or in a temporary agreement, it is important to secure an order that each party shall name the other as the beneficiary on their existing life insurance, retirement plans, and/or survivor benefits and shall make no changes to those designations while the divorce is pending.

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.

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:

 

New Hampshire’s “best interests” statute lists out several factors that the court should use to determine best interests. Many of the factors are little wordy, and as a whole the statute misses some of the very basic issues that must be considered when creating a parenting plan that is in the child’s best interest.

When I had the chance to reread a wonderful guide from the Massachusetts Association of Family and Conciliation Courts titled Planning for Shared Parenting: A Guide for Parents Living Apart, I loved the way that the factors were presented so simply. If I had the opportunity to rewrite RSA 461-A:6, I would use the AFCC’s language:

  • The age, temperament and social adjustment of each child.
  • Any special needs of each child (medical, developmental, educational, emotional or social).
  • The quality of relationships between siblings and any other extended family members.
  • Each child’s daily schedule.
  • Caregiving responsibilities of each parent before the separation.
  • How you would like to share responsibilities both now and in the future.
  • Availability of each parent as a caregiver.
  • Potential flexibility of each parent’s work schedule.
  • Distance between each parent’s home, workplace and children’s schools.
  • The ability of parents to communicate and cooperate with each other.
  • The ability and willingness of each parent to learn basic caregiving skills such as feeding, changing and bathing a young child; preparing a child for daycare or school; taking responsibility for helping with homework; assessing and attending to each child’s special emotional and social needs.

Here are two good examples of why the basics can be so important in the determination of best interests:

1)      Both parents are good caregivers and share responsibilities for the children both before the separation and after. However, the parents live forty-five minutes from each other. Although each parent is able to adequately provide and care for the children, the distance that they live from each other prevents implementing a shared schedule during the school year. It usually is not feasible to have a parent making a forty-five minute commute with the children to school.

2)      Parents are both good parents and caregivers, each dedicated to the children and able to appropriately care for them. One parent works from 8:00 am to 4:00 pm Monday through Friday, with flexibility to work from home if the children are sick or have the day off from school. The other parent works second shift, from 2:00 pm to 10:00 pm with little flexibility to take time off from work or be available for the children during work hours. The children’s best interests require that they be with the parent who is available after school and in the evenings to prepare dinner, help with homework, and oversee baths and bedtime.

Neither of these scenarios endorses the parenting of one parent over the other or concludes that one parent is unfit; rather, it is a finding that one parent’s work schedule makes them more available or that the distance between the two homes is too much to allow for a shared schedule.

Of course, under RSA 461-A:6 courts have the ability to consider any other factor not listed that the court finds relevant, but I think that these factors from the AFCC provide a plainer picture of the considerations that a GAL might use to make recommendations, or the court might use in crafting a parenting plan