New Hampshire now has drug and mental health courts available in some district and superior courts across the state. Drug and mental health courts provide an alernative to jail sentences. Their purpose is to avoid recitivism through treatment programs combined with close and strict oversight combined with the possibility of jail time for failure to comply.
What does this have to do with Family Law? Family issues frequently involve drug addiction or mental heath problems. Either can be the basis for a divorce, or a dispute between parents over children, or the need for guardian for the children. Criminal arrests related to drug use and mental illness affect not only an individual in a family, but also the entire legal structure of the family. Drug and mental health courts may be able to provide alternatives to parents in the midst of a divorce or parenting case that may enable a parent to maintain contact with his or her children.
The post below links to an HBO film documenting a drug court in Boston, Massachusetts.
Wednesday, May 11, 2011
Tuesday, May 10, 2011
Mandatory Disclosure Rule Delayed
The Supreme Court has delayed the implementation of the mandatory disclosure rule, formerly set to begin on April 1st. The new rule would have required disclosure of an extensive amount of information between parties in divorce cases.
Although the new implementation date has not yet been set, divorcing couples should keep two things in mind: 1. The new date could be established at any time, requiring the disclosure even if your case has already begun; and 2. Public policy has moved towards thorough, open and prompt disclosure of all financial information in divorce cases. Do not be surprised when you are asked and required to produce several years of bank account statements or credit card statements. Nor should you automatically feel as though such requests for so much detailed financial information is a personal attack from your spouse. The divorce process is just necessarily a paper and detail intensive process - for everyone's protection.
Although the new implementation date has not yet been set, divorcing couples should keep two things in mind: 1. The new date could be established at any time, requiring the disclosure even if your case has already begun; and 2. Public policy has moved towards thorough, open and prompt disclosure of all financial information in divorce cases. Do not be surprised when you are asked and required to produce several years of bank account statements or credit card statements. Nor should you automatically feel as though such requests for so much detailed financial information is a personal attack from your spouse. The divorce process is just necessarily a paper and detail intensive process - for everyone's protection.
Sunday, January 23, 2011
New Requirements In Family Division
Effective April 1, 2011, each party will be required to provide financial disclosure documents to the other party in all new divorce, legal separation, annulment and civil union dissolution matters. Within 45 days from the date of service of the petition or 10 days before the temporary hearing, each party must provide initial financial disclosure.
This new mandatory initial self-disclosure rule includes an extensive list of documents: 3 years of business and personal tax returns, including all schedules 1099's, w-2, etc; 4 most recent pay stubs; business owners must provide all monthly, quarterly and year-end financial statements, including profit and loss, balance sheet and income statements; 6 months of credit card statements; 12 months of all financial account statements; documentation about the cost and coverage of health insurance; documentation showing death benefit and beneficiary of life insurance; copies of all credit applications filed in the previous 12 months; and any post or prenuptial agreements.
The rule does also include a provision if any of these documents are unavailable to you. Under the rule, you may file a statement of unavailability, which must include a description of your efforts to locate these documents. The court will decide if you are excused from providing any of the listed documents.
The rule also includes a provision to request a protective order under which you can request an in camera review of the documents you see to have protected, and the court will decide your request.
If you do not produce the required documents and have no order protecting or excusing you, you will have consequences. The court may prohibit you from using any evidence that you did not provide, testifying or making an offer of proof about anything contained in the documents you failed to provide, filing any discovery requests, or any motions about discovery. Further, if a failure to provide documents caused any prejudice to the other party, then the court may determine certain facts by estimate, such as income to calculate child support.
I believe this new rule creates a more cost efficient and streamlined discovery process. I have represented clients in cases in which the other party refused to provide any information at all, which lead to costly challenges by multiple motions and hearings. I hope this rule helps to bring an end to wasteful bullying tactics in discovery.
This new mandatory initial self-disclosure rule includes an extensive list of documents: 3 years of business and personal tax returns, including all schedules 1099's, w-2, etc; 4 most recent pay stubs; business owners must provide all monthly, quarterly and year-end financial statements, including profit and loss, balance sheet and income statements; 6 months of credit card statements; 12 months of all financial account statements; documentation about the cost and coverage of health insurance; documentation showing death benefit and beneficiary of life insurance; copies of all credit applications filed in the previous 12 months; and any post or prenuptial agreements.
The rule does also include a provision if any of these documents are unavailable to you. Under the rule, you may file a statement of unavailability, which must include a description of your efforts to locate these documents. The court will decide if you are excused from providing any of the listed documents.
The rule also includes a provision to request a protective order under which you can request an in camera review of the documents you see to have protected, and the court will decide your request.
If you do not produce the required documents and have no order protecting or excusing you, you will have consequences. The court may prohibit you from using any evidence that you did not provide, testifying or making an offer of proof about anything contained in the documents you failed to provide, filing any discovery requests, or any motions about discovery. Further, if a failure to provide documents caused any prejudice to the other party, then the court may determine certain facts by estimate, such as income to calculate child support.
I believe this new rule creates a more cost efficient and streamlined discovery process. I have represented clients in cases in which the other party refused to provide any information at all, which lead to costly challenges by multiple motions and hearings. I hope this rule helps to bring an end to wasteful bullying tactics in discovery.
Monday, January 10, 2011
New Law on Jurisdiction
On December 1st a new law became effective regarding states' jurisdiction to decide and modify custody cases. Although New Hampshire had a 30 year old statute that addressed jurisdiction to determine custody when multiple states were involved, the new statute establishes priorities for determining jurisdiction, creates stronger enforcement mechanisms, applies the law internationally, and eliminates and the "best interest" standard in determining jurisdiction.
Previously, when a court was faced with a question of which state's jurisdiction applied to a child custody question when parent had moved, the law was very confusing. In addition to its confounding criteria about which state had the right to decide custody of a child, the statute also threw in a vague alternative to those criteria by stating that a court could also assume jurisdiction if it determined it was in the child's "best interest." Now, there is no "best interest" alternative, and the decision must be based on where the child and parent live and have lived, whether any other state has jurisdiction or declined jurisdiction.
There are also now specific requirements for information that must be included if a parent seeks to have a New Hampshire court to expedite enforcement of a child custody order of another state, including a certified copy of the other order, the jurisdictional basis for the other state's decision, the status of that decision, the current physical address of the child, whether there are any other proceedings, whether the parent seeks attorneys fees or assistance from law enforcement officials, and whether the other state's custody order has been registered in New Hampshire.
The new law also states that the court shall, not may, award fees costs and expenses against the parent who has failed to follow the other state's custody orders. The new law specifically authorizes the court to issue a warrant to direct law enforcement officers to enter private property and take physical custody of a child, and if the circumstances call for, to "make forcible entry at any hour."
Previously, when a court was faced with a question of which state's jurisdiction applied to a child custody question when parent had moved, the law was very confusing. In addition to its confounding criteria about which state had the right to decide custody of a child, the statute also threw in a vague alternative to those criteria by stating that a court could also assume jurisdiction if it determined it was in the child's "best interest." Now, there is no "best interest" alternative, and the decision must be based on where the child and parent live and have lived, whether any other state has jurisdiction or declined jurisdiction.
There are also now specific requirements for information that must be included if a parent seeks to have a New Hampshire court to expedite enforcement of a child custody order of another state, including a certified copy of the other order, the jurisdictional basis for the other state's decision, the status of that decision, the current physical address of the child, whether there are any other proceedings, whether the parent seeks attorneys fees or assistance from law enforcement officials, and whether the other state's custody order has been registered in New Hampshire.
The new law also states that the court shall, not may, award fees costs and expenses against the parent who has failed to follow the other state's custody orders. The new law specifically authorizes the court to issue a warrant to direct law enforcement officers to enter private property and take physical custody of a child, and if the circumstances call for, to "make forcible entry at any hour."
Wednesday, October 13, 2010
Introducing Our New Lending Library
We are pleased to provide a new service to our clients: a lending library! We have begun acquiring a collection helpful books related to the divorce process for you to look through and even borrow. I have no particular association with the authors; I have chosen these books merely by looking at various publications and seeing what seems to provide thorough and accurate information based on my experiences in my practice. Though we have only just begun, we already have two books available. The second addition to our library is "Helping Your Kids Cope with Divorce."
This book helps parents focus and address their divorce from their child or children's perspective. It includes tips on how to tell your children about the divorce, and how to keep your negative feelings about the other parent out of your conversations with your children.
I like this book because it includes many references and examples of what children see and feel in situations around their parents' break up. Sometimes those perceptions are surprising!
This book helps parents focus and address their divorce from their child or children's perspective. It includes tips on how to tell your children about the divorce, and how to keep your negative feelings about the other parent out of your conversations with your children.
I like this book because it includes many references and examples of what children see and feel in situations around their parents' break up. Sometimes those perceptions are surprising!
Tuesday, April 27, 2010
QDROs Are Important
What is a QDRO? The acronym "QDRO" stands for Qualified Domestic Relation Order. This document functions to divide tax-deferred retirement assets in a divorce. It is a separate document from a divorce decree and necessary to transfer any portion of a tax deferred asset that falls under the federal ERISA statute. Generally, this refers to a 401K or pension, but not an IRA. If you have a 401K or pension (more formally known as defined contribution plan or defined benefit plan), and a portion of it is or may be awarded to your spouse in a divorce, a QDRO must be drafted, and it should be drafted by a lawyer.
A QDRO is a detailed description, or set of instructions, by which the plan administrator of a plan transfers money to a former spouse. The Court does not create QDRO, and its role is only to review and sign the QDRO after it determines that it follows the intent of the divorce decree. However, the larger challenge is that the QDRO also must be approved by plan administrator. It's your retirement account plan administrator's job to ensure that the QDRO is meets their company's compliance requirements and provides a set of instructions that is clear and unambiguous enough so that they can follow them and not get themselves into legal trouble.
The language in a QDRO is complex, but its meaning can make the difference of thousands of dollars, tens of thousands, perhaps even more, to you. That's why it is critical that you have a well drafted QDRO to ensure that you receive all of the money to which you are entitled.
QDROs often specify more detail than your divorce decree includes. (It would be best, of course, if your divorce decree was drafted by someone who understood QDROs and included the detail necessary to make an unambiguous QDRO - but that does not always happen.) For example, a QDRO includes instruction on whether or not the amount given to your former spouse includes cost of living adjustments, or a surviving spouse annuity. Does that dollar amount you agreed would be given to your spouse include gains and losses attibuted to that money from the date you agreed to the date it is finally distributed? It can take months, sometimes even years, before the money you agreed on in that mediation session finally gets to you. What happens if the market has taken off, and now that dollar amount is suddenly much less than the half you thought you were going to get? Do you know what it may cost you if your former spouse gets a surviving spouse benefit? Did you figure that cost into the over all split of your assets?
Altough it may seem as though the QDRO is a tedious, and never ending project that your lawyer negligently lets straggle after your divorce is all over, it is worth the time and effort necessary to ensure that it is right.
A QDRO is a detailed description, or set of instructions, by which the plan administrator of a plan transfers money to a former spouse. The Court does not create QDRO, and its role is only to review and sign the QDRO after it determines that it follows the intent of the divorce decree. However, the larger challenge is that the QDRO also must be approved by plan administrator. It's your retirement account plan administrator's job to ensure that the QDRO is meets their company's compliance requirements and provides a set of instructions that is clear and unambiguous enough so that they can follow them and not get themselves into legal trouble.
The language in a QDRO is complex, but its meaning can make the difference of thousands of dollars, tens of thousands, perhaps even more, to you. That's why it is critical that you have a well drafted QDRO to ensure that you receive all of the money to which you are entitled.
QDROs often specify more detail than your divorce decree includes. (It would be best, of course, if your divorce decree was drafted by someone who understood QDROs and included the detail necessary to make an unambiguous QDRO - but that does not always happen.) For example, a QDRO includes instruction on whether or not the amount given to your former spouse includes cost of living adjustments, or a surviving spouse annuity. Does that dollar amount you agreed would be given to your spouse include gains and losses attibuted to that money from the date you agreed to the date it is finally distributed? It can take months, sometimes even years, before the money you agreed on in that mediation session finally gets to you. What happens if the market has taken off, and now that dollar amount is suddenly much less than the half you thought you were going to get? Do you know what it may cost you if your former spouse gets a surviving spouse benefit? Did you figure that cost into the over all split of your assets?
Altough it may seem as though the QDRO is a tedious, and never ending project that your lawyer negligently lets straggle after your divorce is all over, it is worth the time and effort necessary to ensure that it is right.
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