Got Trouble? We can help.

Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

Both parties must be domiciled in the state when the action is commenced, and the filing spouse must be a resident for at least 1 year. All divorce petitions shall be brought in the county in which either party lives and before the superior court of that county. [Based on New Hampshire Statutes - Chapters: 458:5 and 458:9]

LEGAL GROUNDS FOR DIVORCE: A divorce matrimony may be granted on the following grounds:

* No Fault - Irreconcilable differences which have caused the irremediable breakdown of the marriage.

* Fault - A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes:

1. Impotency of either party.

2. Adultery of either party.

3. Extreme cruelty of either party to the other.

4. Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction.

5. When either party has so treated the other as seriously to injure health or endanger reason.

6. When either party has been absent 2 years together, and has not been heard of.

7. When either party is an habitual drunkard, and has been such for 2 years together.

8. When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together.

9. When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other. [Based on New Hampshire Statutes - Chapters: 458:7 and 458:7-a]

LEGAL SEPARATION: In any case in which a divorce might be decreed, the superior court, on petition of either party, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person and except as hereinafter provided. A person concerning whom a legal separation has been decreed may file a motion to amend the decree to one of divorce. [Based on New Hampshire Statutes - Chapter: 458:26]

MEDIATION OR COUNSELING REQUIREMENTS: In the event of any action the court shall, no later than the respondent's filing of an appearance, require the parties to attend a 4-hour information session. This session shall be a seminar on how to help the children deal with the issues surrounding divorce, separation, and the allocation of parental rights and responsibilities.

In all cases involving disputed parental rights and responsibilities or grandparents' visitation rights, including requests for modification of prior orders, the court may order the parties to participate in mediation.

Whenever, before or during a hearing but before a final decree, the court shall determine that there is a likelihood for rehabilitation of the marriage relationship, the court shall refer the parties to an appropriate counseling agency within its jurisdiction, which referral may be made according to RSA 167-B or as the parties request, with the approval of the court. If the court determines that there is a reasonable possibility of reconciliation, the court shall continue the proceedings and require that both parties submit to marriage counseling.

PROPERTY DISTRIBUTION: New Hampshire is an equitable distribution state, meaning that the court tries to distribute property equitably between the parties. The court shall presume that an equal division is an equitable distribution of property, unless the court decides that an equal division would not be appropriate or equitable after considering one or more of the following factors: (a) The duration of the marriage. (b) The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party. (c) The opportunity of each party for future acquisition of capital assets and income. (d) The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party. (e) The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects. (f) The actions of either party during the marriage, which contributed to the growth, or diminution in value of property owned by either or both of the parties. (g) Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home. (h) Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party's educational or personal career opportunities for the benefit of the other's career or for the benefit of the parties' marriage or children. (i) The expectation of pension or retirement rights acquired prior to or during the marriage. (j) The tax consequences for each party. (k) The value of property that is allocated by a valid prenuptial contract made in good faith by the parties. (l) The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and: (1) Caused substantial physical or mental pain and suffering; or (2) Resulted in substantial economic loss to the marital estate or the injured party. (m) The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage. (n) The value of any property acquired by gift, devise, or descent. (o) Any other factor that the court deems relevant. [Based on New Hampshire Statutes - Chapter: 458:16-a]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Upon motion of either party for alimony payments, the court shall make orders for the payment of alimony to the party in need of alimony, either temporary or permanent, for a definite or indefinite period of time, if the motion for alimony payments is made within 5 years of the decree of nullity or divorce and the court finds that:

* The party in need lacks sufficient income, property, or both, including property apportioned in accordance with RSA 458:16-a, to provide for such party's reasonable needs, taking into account the style of living to which the parties have become accustomed during the marriage;

* The party from whom alimony is sought is able to meet reasonable needs while meeting those of the party seeking alimony, taking into account the style of living to which the parties have become accustomed during the marriage;

* The party in need is unable to be self-supporting through appropriate employment at a standard of living that meets reasonable needs or is allocated parental rights and responsibilities under RSA 461-A for a child of the parties whose condition or circumstances make it appropriate that the parent not seek employment outside the home.

In determining the amount of alimony, the court shall consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded in the divorce settlement, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party; and the federal tax consequences of the order. [Based on New Hampshire Statutes - Chapter: 458:19]

SPOUSE'S NAME: In any proceeding under this chapter, except an action for legal separation, the court may, when a decree of divorce or nullity is made, restore a former name of the spouse, regardless of whether a request therefore had been included in the petition. [Based on New Hampshire Statutes - Chapter: 458:24]

CHILD CUSTODY: In determining parental rights and responsibilities under this section, including residential responsibility, the court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent. In determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:

1. The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.

2. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

3. The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.

4. The quality of the child's adjustment to the child's school and community and the potential effect of any change.

5. The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent.

6. The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.

7. The support of each parent for the child's relationship with the other parent.

8. The relationship of the child with any other person who may significantly affect the child.

9. The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children.

10. Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

11. If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.

12. Any other additional factors the court deems relevant.

If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including whether the minor child's preference was based on undesirable or improper influences. [Based on New Hampshire Statutes - Chapters: 461-A:6]

CHILD SUPPORT: Both parents are responsible for the economic support of the children, and the percentage of net income paid for child support should vary according to the number of children and, with limited exemptions, not according to income level, as determined by the New Hampshire child support guidelines.

All support orders shall provide for the assignment of the wages of the responsible parent pursuant to RSA 458-B, subject to the exceptions listed in RSA 458-B:2. The amount of a child support obligation shall remain as stated in the order until all dependent children for whom support is ordered shall terminate their high school education or reach the age of 18 years, whichever is later, or become married, or become a member of the armed services, at which time the child support obligation, including all educational support obligations, terminates without further legal action. This amount shall remain as specified unless a legal order expressly allocates the payments on a per child basis. If the order involves a disabled child, the court shall specify the duration of the order, which may be beyond the time when the child reaches the age of 18. No child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school. [Based on New Hampshire Statutes - Chapters: 458-C:1, 458-C:3, and 461-A:14]

PREMARITAL AGREEMENT: A man and woman in contemplation of marriage may enter into a written inter-spousal contract and the courts of this state shall give the same effect to such contracts entered in other jurisdictions, as would the courts of that other jurisdiction. However, no contract otherwise enforceable under this section may contain any term, which attempts to abrogate the statutory, or common law rights of minor children of the contemplated marriage.

HOW TO ENFORCE CHILD SUPPORT IN NEW HAMPSHIRE – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have choosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF NEW HAMPSHIRE: