LAW OFFICE OF REBECCA J. RUTTER

Compassionate Counseling - Aggressive Advocacy

 


Introduction to Divorce, Separation, and Parenting Matters

          Divorce, legal separation, and custody disputes are among the most stressful life events which can confront a person. In addition to the incredible emotional toll which these matters can take, the decisions that are made can have a far-ranging – and even life-long – impact on those involved.

            This particular realm of the law is often referred to as “family law.” It encompasses divorce and legal separation, as well as custody and child support disputes between parents who were never married. If you are now engaged in a family law action, or believe you may be in the future, you know that this is a detailed-oriented and sensitive area of the law, and that every case is different. This article is not intended to give legal advice or to provide an exhaustive or comprehensive treatment of the subject. Rather, this article is designed to provide an introduction and brief overview of some key issues involved in a divorce or custody/ child support matter.

Grounds for Divorce  

            In New Hampshire, a divorce may be granted on either fault grounds or “no fault” grounds. In a no-fault divorce, the court declares that “irreconcilable differences” have caused the marriage to break down beyond repair. In a fault based divorce, one or both parties alleges that the other spouse was responsible for causing the marriage to breakdown, by committing one of the specific types of marital misconduct set forth in the New Hampshire “fault grounds” statute. A few examples of statutory “fault” are adultery, abandonment for a certain statutory time period, and extreme cruelty. The majority of New Hampshire divorces are granted on the grounds of irreconcilable differences. 

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Property Division and Division of Debt

         One of the key financial issues in a divorce is division of marital property and debts. Under New Hampshire law, any and all property which is owned by either spouse – even if titled in one spouse’s name solely – is presumed to be joint “marital property” and subject to division by the court. And when we say “any and all property,” we mean just that. Property includes real estate (land and the buildings attached to it); tangible personal property of all kinds (furniture, personal effects, vehicles, jewelry, collectibles, etc.), as well as intangible personal property, such as bank accounts, mutual funds, stocks and bonds, and – significantly – retirement assets, such as pensions, 401(k)’s, IRA’s, and the like.      
     
       In a New Hampshire divorce, all marital property must be divided fairly, or in legal terms, “equitably.” According to New Hampshire statutory law, equal (50/50) division is presumed to be equitable. However, a court can also determine that equal division would not be equitable or appropriate in a particular case, based upon one or more factors provided in New Hampshire statute.         
      
        In addition to division of assets, the court must also decide upon the division of debts and liabilities which were accumulated during the marriage.  
      
        Alimony or Spousal Support           
       
         Over the years, there has arisen a kind of urban legend that alimony is “not allowed in New Hampshire.” Fortunately or unfortunately – depending on which side of the issue you happen to be – this is not true. Alimony, also known as spousal support, is indeed able to be granted in a New Hampshire divorce. Unlike child support (covered below) alimony is not based upon any kind of mathematical formula. First, the court must determine whether alimony is even appropriate in a particular case, based upon certain factors set forth in state statute. If the court determines that it is appropriate to order one former-spouse to pay the other alimony, then the court must decide “how much” (amount) and “for how long” (duration). This is a very case-specific determination. It is based upon a number of factors outlined in state statute, and is always driven by the facts of the particular divorce at hand.   

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Parenting Matters – for Divorcing Couples, and for Never Married Parents

 

Child Support

 

            If children were born or adopted to the married couple, then the divorce will also involve child support and “parenting rights and responsibilities.”  Divorcing couples often find that the child-related issues are even more challenging than the financial matters, because a whole new emotional component comes into play.  

 

            Also, as noted in the heading to this section, parenting matters are not just for divorcing parties. These are also matters of concern to parents who have never married and are now separating or otherwise ending their romantic relationship. In that instance, these never-married parents also need to have some kind of legal determination regarding parenting rights and responsibilities, as well as child support. In such a case, a Parenting Petition or Petition for Support can be used to involve the court in the process.

 

            Unlike alimony, child support is based upon a formula that is mandated by the state. The formula takes into account each parent’s income, the number of children, and certain deductions allowed for each parent.  These numbers are plugged into the formula, and the formula produces a dollar figure which is “presumed” to be the fair and appropriate amount of child support. However, the court is not strictly bound by the formula. If circumstances warrant, the court can vary from the formula-amount, by either awarding more child support (referred to as an “upward deviation”) or less child support (referred to as a “downward deviation”).

 

            Subsequent to an initial award of child support, the child support can be modified. Generally speaking, child support is recalculated if one of the children ceases to be eligible for child support, or if there is a significant change in circumstances (such as a parent getting a substantial raise or changing his/her job). Either parent can also ask for child support to be recalculated, absent a change in circumstances, every three years. (This may be advantageous because the child support guidelines tables are updated by the state annually, to account for cost of living increases and the like.)  

 

In most cases, a child continues to be eligible for child support until he or she turns 18 or graduates high school.

 

            In a divorce or parenting action, a determination should also be made regarding children’s health insurance. Who is responsible for providing health insurance for the child(ren), and who is responsible for paying the premiums? How are uninsured medical costs to be shared?




Parental Rights and Responsibilities

And then there are the non-financial child-related matters. In any divorce or parenting action involving minor children, the parties will also find themselves asking questions such as ... What about time with the kids? Will they stay at my house? -- or the other parent's house? -- or some combination of the two? How will "custody" and parenting time be determined? How will major decisions for the kids get made? Where will they go to school? How do we divide the holidays? And what about school vacations and summertime? ....

.... These and other important questions fall under the framework of "Parental Rights and Responsibilities."

For a closer look at this subject, see our article on Parenting Rights and Responsibilities.

What is the procedure or "process" which is used in a family law case?

There are a number of different paths which a divorce or parenting matter can take. Having a fully contested, fully litigated parenting matter is not the only way for a case to be resolved. There are a number of tools available to divorcing or separating parents, who wish to resolve their legal disputes in a less stressful, more amicable fashion. These include negotiation, mediation, and a new kind of family law referred to as “Collaborative Law.”

Coming soon to this website … an article regarding Family Law Process and Procedure – the Court System and Alternatives to Litigation.
Please check back later for updates!