Family Law in New Hampshire

Drug Courts Begin in New Hampshire

2011-05-11T15:30:00.001-04:00

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.

HBO: Addiction: The Film: Supplemental Film: South Boston Drug Court

2011-05-11T15:29:00.000-04:00

HBO: Addiction: The Film: Supplemental Film: South Boston Drug Court

Mandatory Disclosure Rule Delayed

2011-05-10T16:38:00.000-04:00

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.

New Requirements In Family Division

2011-01-23T16:37:00.001-05:00

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.

New Law on Jurisdiction

2011-01-10T15:23:00.000-05:00

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."

Introducing Our New Lending Library

2010-10-13T16:59:00.005-04:00

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!

QDROs Are Important

2010-04-27T16:49:00.000-04:00

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.

Where do Lawyers Practice?

2010-03-17T14:48:00.000-04:00

Lawyers can only practice in states in which they are members of the state bar association.

So, given that New Hampshire lawyers can practice anywhere in the state, what does that mean?

Most of the time, within the state, the only geographic limits for a lawyer are how far they are willing to drive to court, or how far a client is willing to drive to meet with him or her. I commonly travel to Laconia, Manchester, Hooksett, Goffstown, Derry, Henniker, Franklin and Plymouth. I have even travelled to North Haverhill, Rochester, Salem, Nashua and Claremont. So, you can see that I practice in most areas of the state.

Yet certainly, a significant concern for clients considering hiring a lawyer who may have to travel to court - is cost. A lawyer charges by the hour, so time spent travelling to court is also charged. Keep in mind, however, that in most cases the amount of time spent going to court is a very small part of your case. In fact, since I strive to obtain a favorable settlement in clients' cases, frequently I can resolve a case without anyone having to attend court at all.

So, while the cost of travel time is one factor that you should consider when choosing a lawyer, I still believe that the quality of your relationship with your lawyer is a more important consideration. With email and video conferencing available, as well as the old-fashioned telephone, it is no longer even necessary to meet with your lawyer face to face every time you need to discuss something. You will need to meet face to face occaisionally, so certainly whatever lawyer you choose should not be so inconveniently located to you that a personal meeting is a nuisance. Yet, think of how much more valuable it may be to you to have a lawyer you feel you can talk to, who responds quickly to your questions, who is competent in handling your case, who takes care of issues that arise without needing to constantly remind him or her! You have more choices in lawyers than just those who have offices in your neighborhood; you have the choice to find someone who is a good fit for you.

I feel that, so frequently, the experience of going through a legal case can be stressful enough without also feeling as though you can not communicate with your lawyer, he or she does not listen to you, does not respond to your needs, or whom you can not trust. So, your options may be more broad than you thought if you can, say, teleconference with an attorney in the next county or town.

Mediation #2

2009-10-22T12:15:00.000-04:00

One critical component of mediation, I believe, is to choose the right mediator for your case and personality. There are lots of mediators in the area. They each have different approaches, styles, personalities, skill sets and backgrounds. For example, some are from a counselling background and believe in and work best with a situation in which both people are able to talk through their issues in each other's presence, perhaps including venting or crying. Others are focused on negotiating the asset division and work well with figures. Some offer creative suggestions, others only want the suggestions to come from you. Some will offer insights from the benefit of their legal experience, some will not. Some can move people past an apparent impasse, while others do not want to push people past their comfort levels.

These are only a few examples of the differences I have seen between mediators. It is important to discuss the choice of mediator with your attorney. I believe it can make all the difference in arriving at a successful resolution of your case.

The Advantages of Mediation #1

2009-07-16T11:35:00.000-04:00

After having gone through many trials and many mediation sessions on behalf of my clients, I have found advantages and disadvantages to both. Yet when the people I represent settle their cases via mediation, they have expressed several reasons why they appreciated the mediation process.

The mediation process gives you the ability to be flexible. You can take as long or as short as you want. Gather all of your financial information, take the day (and sometimes into the night), roll up your sleeves and get it all completed at one time. In mediation, you have the ability to call people of you have a question: your accountant, bank, realtor, relative. You can be finished and not have the continued anxiety or stress a dragged out legal battle.

The mediation process also allows you to take it slowly. You may meet for a few hours, and if it feels as though it is too much, you can stop and return later. You can purposefully schedule shorter sessions over time so that you can address one or two issues at a time. You may also choose to schedule shorter sessions so that you can leave mediation to obtain more information. Information you may need may be financial, such as whether you can qualify for a refinance, or obtain an appraisal, or check the status of your life insurance. Perhaps you have a legal question. Or, perhaps you need counseling.

Mediation is informal. You may dress comfortably, bring a friend for support, have refreshments, leave the room to stretch your legs. You may take as long as you want to think about an offer, or to consider the solution to an impasse. You get to choose whether you would prefer to be in the same room or in separate rooms.

Mediation's ability to be flexible, then, makes the setting for your discussions work around your needs.

More about your kids

2009-04-23T15:44:00.001-04:00

I have come across another excellent website about kids and separating parents. This one is for parents who were never married. The site includes excercises to help parents be child focused, and to facilitate a good co-parenting relationship with the other parent. The site is called Proud To Parent.

The site is filled with examples and reminders that it's the parent's responsibility to protect their child from the lifelong damage that results from seeing their parents in conflict. My favorit statement is: "Any and all times that your child sees you together belong to that child. They are for meeting her needs, and showing her that her world is safe."

*Please note, my recommendation for this book does not mean that I have any kind of financial or personal arrangement with Dr. Garber. I do not. I just like his Website and book and feel it may be helpful to my clients.

Place to Start

2009-04-20T20:57:00.000-04:00

Dr. Benjamin Garber is a local psychologist who frequently works with children in divorcing families. I recommend this book, as well as a good look at his Website if you have children and are either divorcing, or separating.

No Matter What, the Most Important Things are the Children

2009-03-09T20:31:00.000-04:00

I think this should be obvious to you, yet I understand that it is easy to forget what is most important when you are feeling the strong emotions you may be feeling. I came across a Website called The Stepfamily Letter Project, http://stepfamilyletterproject.wordpress.com. The site includes letters from different types of family members to other family members. The caption reads: “Blended Families Share Their Challenges, Joys, and Advice.” The letters are full of pain and wit. Yet, they illustrate how intensely one’s actions effect other people, how devastating selfishness and thoughtlessness is, and how uplifting is grace and understanding. If you look at this site, you may read letters from people experiencing similar frustrations and joys as you. I think that reading these honest writings helps to put things into perspective.

How do I pick a lawyer?

2009-03-03T19:27:00.000-05:00

As a lawyer, I have a strong opinion about what makes a good Family Law attorney! After all, I deal with them every day! Here is what I think.

A prerequisite for all excellent attorneys is that he or she MUST know the law. But to be a great Family Law attorney, I believe your attorney should have many skills beyond that. He or she must be agile. I believe that Family Law is an area that requires an especially generous amount of maneuvering and balance from your attorney. You are in a place in your lives where you are the most emotionally challenged; there is a lot of sadness, anger, and fear present in most cases, likely yours. You probably have children involved. Combine that with the fact that a good Family Law attorney must do whatever he or she can to facilitate the best possible relationship between you and the person you are disagreeing with, at the same time the attorney is fighting to get the best possible result for you. That means your attorney needs to know when to negotiate and when to litigate, when to hold off, and when to be aggressive, when to hold your hand and when to give you a good talking to.

Your attorney must be accessible. You may have situations where you need to talk to your attorney, fast. You may be experiencing a crisis with your children or with your bills. You have to have an attorney you can reach quickly.

Your attorney should be a good listener. A lot of what goes on in a Family Law case is discovered between the lines, in what’s missing, in understanding your fears and needs, and your goals. You can’t always articulate that concisely or quickly.

Your attorney must have patience. You may be at your worst and the process takes time. You need someone on your side that has the patience to see you through.

I also believe that your attorney should have some familiarity, that is should have experience with what you are experiencing. Perhaps has raised kids, gone through a divorce, had the struggles that you’ve had, to really help understand what you are going through and feeling.

2009-03-01T09:23:00.000-05:00

Chole, one of the office cats.

Financial Affidavits are your Friend

2009-02-28T10:52:00.000-05:00

And, if you do not give them the attention they deserve, can also be your enemy. I know that completing a financial affidavit is tedious and time consuming. Revising them can feel worse, because you have already gone through all of that work once. But, they are probably the most important document in your entire case. Why? Because it is your statement, your proclamation, of the value of your assets, disclosure of your income and debts, and your cost of living. A court will rely on the numbers that you include, for the better or worse of your case. For example, you have made a guess at the value of your home, and write that value down on your financial affidavit. You and your spouse have written the same value - so the court and everyone involved does not think that there is a dispute about the value of that asset. Then, you find yourself at trial. Somewhere along the line you have realized that your house is worth a lot more than you thought it was, and you hope to get your fair share of that house, but the judge looks at you and says that YOU have already signed a document that stated that your house was only worth the lesser value and that's all you're going to get! You thought that financial affidavit was just a form to fill out, and now the court is taking it seriously!

The above is but one of many examples I could describe to illustrate why your financial affidavit is more than just some form that I am making you fill out, some make work that you should not have to do. Of course, there is more to talk about in the above example, including what I would have discussed with you about the value of your home between the time you filled out your first financial affidavit and trial - but that's another posting.

Communication = Satisfaction?

2009-02-26T18:37:00.000-05:00

I think a lot of people have concerns around communication when they have a lawyer. Do you? "Concerns" can run from frustration that your lawyer is so difficult to get in touch with, to frustration with not having things explained well enough, to feeling as though you are not being listened to. I believe that all of that leads to feeling as though your lawyer does not care about your case.

I don't know about other law firms, or other lawyers, but YES, I care! I think you would be surprised to see how much time is taken to consider, worry over, and talk about your case between us at the firm. We quite literally regularly evaluate the status of a cases and try to figure out if there is a better way to help our client reach his or her goals, resolve the case more quickly, or to get the most from each dollar spent. AND, all of that ruminating, strategizing and discussing does not cost you anything; it's time spent that is not being billed to you.

So, how do I make you feel satisfied about communicating with me?

What should you do before you first meet with a lawyer?

2009-02-25T12:39:00.000-05:00

As your lawyer, I need to know the facts and details, but I also want to know your story. Think about what you would want your lawyer to know about your situation and the people who are a part of it. What is important to you? What are your goals? What are the best and worse possible outcomes for you? What questions do you have about what may happen in your case? Writing your questions or comments ahead of time may be helpful.

The first meeting is also a good opportunity for you to ask questions about your lawyer, how the office works, how your fees will be kept track of.

Most importantly, the first meeting is your opportunity to see whether you can work with this lawyer as a person. Through a divorce or parenting case, you will be sharing close personal details with your lawyer, relying on him or her, trusting him or her to look out for you as best they can. If you can not "connect" with a lawyer as a person during your first meeting, chances are it will not get better after that. And, if you do not feel comfortable with your lawyer, it is likely that communication will suffer, as well as the case.