What is a divorce?
A divorce is an absolute dissolution of your marriage obtained in a court of law. At the conclusion of a divorce, you are free to marry again. In a divorce, provisions are made either by agreement or order for distribution of your property as well as for your children, who they will live with, when they will see the other parent, whether child support will be paid and how much, etc. If in the divorce, you and your spouse are able to agree on everything, then your agreement will be memorialized on paper and is usually called a Permanent Stipulation. If you can agree on everything, you will have what is called an uncontested final hearing and your divorce will be effective the same day. If you cannot agree, then the court must decide those areas that you and your spouse cannot agree on. The court does this by applying statutory and case law standards to the issues you cannot agree on. This usually requires the court to conduct an evidentiary hearing where you and your spouse and others take the witness stand and give testimony on the issues you cannot agree on. In contested cases, your divorce is generally effective thirty days after the judge or marital master issues their written decision.
How is legal separation different from a divorce?
A legal separation follows the same process as a divorce, except at the end of the process you have what is called a limited dissolution of your marriage and you are not free to remarry at the conclusion. Often people get legal separations for religious reasons or due to financial reasons. In a legal separation, provisions are made either by agreement or order for distribution of your property, as well as for your children, who they will live with, when they will see the other parent, whether child support will be paid and how much, etc. If in the legal separation process you and your spouse are able to agree on everything, then your agreement will be memorialized on paper and is usually called a Permanent Stipulation. If you can agree with everything you will have what is called an uncontested final hearing and your legal separation will be effective the same day. If you cannot agree, then the court must decide those areas that you and your spouse cannot agree on. This usually requires the court to conduct an evidentiary hearing where you and your spouse and others take the witness stand and give testimony on the issues you cannot agree on. In contested cases, your legal separation is generally effective thirty days after the judge or marital master issues their written decision.
Is New Hampshire a “no-fault” divorce state?
In New Hampshire, you can obtain a divorce either by no fault (irreconcilable differences) or by fault. In an irreconcilable differences divorce, you are saying to the court that you and your spouse no longer get along well enough to be married. You often do not have to give an in depth explanation of what the irreconcilable differences were. In New Hampshire a fault ground divorce is granted to the innocent spouse and you must prove to the court that the fault occurred and that it was the cause of the breakdown of your marriage. You cannot agree to a fault divorce in New Hampshire. In making a finding of fault, the court may make an unequal property settlement in favor of the innocent spouse. The downside of pursuing a divorce on the basis of fault is the cost associated with seeing the matter through until its conclusion.
If my spouse and I agree to a divorce on the grounds of irreconcilable differences, why is my case still contested?
Just because you and your spouse agree that you can be granted a divorce on the grounds of irreconcilable differences does not mean that your divorce is fully uncontested. For a divorce to be uncontested, you must agree on everything, the grounds, property settlements, custodial arrangements for your children, support, alimony. A divorce is contested when the parties cannot agree on any one issue or every issue.
How long will it take to get a divorce?
The answer to this question is, it depends. Even with a fully uncontested matter it can sometimes take up to six months before a divorce is final. If the matter is contested in any way, it can take a year and sometimes longer depending upon the issues. There are many people that file for divorce each year as well as many people that need to revisit their divorces because they need to make modifications to a portion of their decree. The clerks and staff of the courts realize how important your case is to you and they try very hard to schedule every case that comes to the court in as timely as fashion as they can. However, there is only so much court time available and with staff shortages, it has had an impact on how quickly issues get scheduled for a hearing.
How does the court decide who my children live with when I get a divorce?
As with any issue in your divorce, if you and your spouse can agree, the court will generally approve your agreement. If you cannot agree on who should have decision making power over your children or who they will live with when you get a divorce, the court will have to decide these issues for you. The initial standard for custodial issues is what is in the best interest of the child. The court will consider a variety of factors, including:
- The relationship of the child with each parent;
- The ability of each parent to assure that the child receives adequate care;
- The child’s developmental needs;
- The support of each parent for the child’s relationship with the other parent;
- The ability of the parents to communicate and cooperate with each other concerning the children; and,
- Any other factors that the Court considers relevant.
What is a Guardian ad litem?
When the parties to a divorce cannot agree on legal or physical custody, visitation or what is in the best interests of the children, the court will appoint a Guardian ad Litem (GAL) to represent the interests of the children. The GAL is often an attorney appointed by the court to conduct an investigation into the issues of the case as they pertain to the children. The GAL interviews the parents, others and sometimes meets with the child and makes a written recommendation to the court. The court will give weight to the GAL’s recommendations but the GAL is not the one who has final say. When the court appoints the GAL, they also must make an order as to who shall pay the GAL’s fees. Usually the parents are equally responsible for the fees.
What types of custody does the court order?
There are two types of custody; legal and physical. Legal custody is often referred to as decision making, what school the child will attend, what religion the child will practice if any, the right to sign permission for medical treatment, etc. In New Hampshire the presumption is to grant parents joint legal custody, the idea being that just because you are divorced does not mean you should not continue to participate in your child’ life.
Physical custody is the type of custody that there are more disagreements on in divorces. Physical custody is who the children will spend the majority of their time with. Often one parent is granted primary physical custody and the other parent is granted residual physical custody or visitation. If you and your spouse can agree, all the better for you and your children. However, if you cannot agree, the court will decide for you. Keep in mind that a custodial schedule that works well when your children are a certain age will not work well when they reach another age. It is important to continue to work with your ex-spouse to make your children’s lives post-divorce as worry free as possible.
What is shared physical custody?
There is no formal definition of shared physical custody in New Hampshire and often is it what the parties have agreed to. Some spell out the arrangements so that the children spend 50% of their time with each parent. Some parents alternate the weeks, some parents split the week and some use a rotating every other weekend schedule with the weekend starting earlier in the week and continuing into the beginning of the following week. Any shared custody arrangement must first and foremost work for the benefit of the children.
What is a Parenting Plan?
A Parenting Plan is a document, separate from a Final Stipulation or Final Decree of Divorce, that addresses all issues regarding the children, which are applicable to your family. Among other thing, Parenting Plans address the following issues:
- Decision making responsibility for the children and access to information regarding the children (i.e., medical or educational records);
- The routine schedule for the children while with each parent;
- Parenting time during holidays and birthdays;
- Parenting time during school vacations and summer vacation;
- Supervised parenting time, if applicable;
- Transportation responsibilities; and,
- Relocation of the residence of the children.
If my child is 13 years old, can he/she decide which parent to live with?
Under New Hampshire law, there is no automatic age upon which a minor child can unilaterally decide where he/she wants to live. However, if the court concludes that the minor child is of sufficient maturity to make a sound judgment about where he/she lives, the court will give substantial weight to the child’s preference. A mature child, the child’s preference becomes on of many factors the court will consider in issuing a Parenting Plan.
How is the amount of child support determined by the court?
Generally there is always an order for child support. Child support is calculated by applying a formula to both parents’ incomes. Certain credits are given to whoever pays work related child care expenses and health insurance premiums for the children. While the formula is a little more complicated, a quick rule of thumb is that for one child the parent that pays child support will pay approximately 25% of their net income as child support, for two children it is 33%, for three children it is 40% and for four or more it is 45%. Child support is to continue for each child until they turn eighteen or graduate from high school, whichever occurs last. Child support can also be reviewed every three years or upon a significant change in circumstances. Child support is also paid by way of wage assignment which means that the paying parents employer takes the child support payment out of their check each pay period and makes sure it gets to the other parent. Some child support payments are made by direct deposit or electronic transfer.
In shared physical custody arrangements, there often is by agreement no child support paid. Usually the parents agree to share all expenses equally for the children. In some shared physical custody arrangements child support is still paid by one parent to the other, often this is because the parents have different incomes and one parent needs the money to assure that the children are cared for in a similar fashion in both households.
Will the court order me to pay for my child’s college education expenses?
No. The court’s no longer have authority to order either party to contribute toward a child’s college education.
Does New Hampshire recognize alimony?
Yes. The court has the discretion to award alimony. In determining whether an alimony award is appropriate, the court will consider whether the spouse requesting alimony has a financial need and whether the spouse from whom alimony is sought has the financial ability to pay. The court will consider the following factors in determining alimony:
- The length of marriage;
- The age and health of the parties at the time of the divorce;
- The ability to earn income of each spouse;
- Future financial prospects of each spouse;
- The parties’ respective contributions during the marriage; and,
- Fault grounds for the marital breakdown.
Does New Hampshire recognize Prenuptial Agreements?
Yes. New Hampshire recognizes prenuptial or antenuptial agreements. However, the validity of such agreements are often challenged once the divorce begins. If a spouse challenges the validity of the agreement, the court will consider many factors.
What will my divorce cost?
Again the answer depends. Keep in mind that the more you and your spouse can agree, then generally the more inexpensive a divorce can be. Cost also depends upon when you reach your agreements. If you agree at the outset, then a divorce could be inexpensive. If you agree only after a long drawn out battle, then it will be very expensive. The less you agree and the more drawn out your divorce is, the more expensive it will be for both of you. Most attorneys charge an hourly rate for their time and most require payment of a retainer (deposit) and signing of a fee agreement before beginning work on a case. Cases involving substantial assets or custody battles can cost thousands of dollars.
Can my spouse and I use the same lawyer?
No. Lawyers cannot represent both parties in a divorce and it would be unethical to do so.
Do I really need a lawyer to get a divorce?
You can file for divorce in New Hampshire without using an attorney and the forms you need are available at the courthouse. However, lawyers understand that your divorce involves complex legal and emotional issues and that your rights, responsibilities, assets and your children are at stake. A lawyer has the education and training to handle your case and to make sure it is handled properly the first time. A divorce is a stressful and emotional process and many individuals find they do not want to deal with all the paperwork and forms necessary to complete a divorce.
The information contained in this website is intended to be for informational purposes only. It is not intended as specific legal advice. Every case is different and there is no warranty that this information is accurate or current. Because every case is unique you are urged to contact an attorney to discuss the aspects of your case and to receive advice specific to your matter. Contact us today to schedule an appointment to discuss your divorce case.