Introduction to Divorce, Separation, and Parenting
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.
Property Division and Division of Debt
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.
Parenting Matters – for
Divorcing Couples, and for Never Married Parents
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.”
soon to this website … an article regarding Family Law Process and Procedure – the Court System and Alternatives
Please check back later for updates!