New Hampshire Divorce Recovery

Q. My wife tells me that she will get full custody and I will have to abide by her schedule if I want to see our kids. Can she do that? Do New Hampshire divorce laws protect my right to joint custody?

A.State child custody laws first consider the best interests of the child. The presumption is made that having both parents (joint legal custody) fully engaged in the child's life serves them best. The court can deviate from this view if evidence suggests one or both parents pose a risk (proof of abuse) to the child. It sounds like your wife is merely blustering.

Q. I'm concerned that I might be painted as a bad parent by my soon-to-be ex. What factors does the State require the judge to look at?

1. Allegations of specific acts of misconduct where child custody is an issue are only admissible when the misconduct is relevant to establish that parental custody would be detrimental to the child.
2. The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
3. ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
4. The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
5. The quality of the child's adjustment to the child's school and community and the potential effect of any change.
6. 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.
7. The support of each parent for the child's contact with the other parent as demonstrated by permitting and allowing frequent contact with the other parent
8. The relationship of the child with any other person who may have a positive influence on the child.
9. The degree of cooperation between the parents.
10. Any evidence of abuse and the child's relationship with that parent.
11. If a parent is jailed, how the circumstances of that incarceration impact the child.

Q. Is there anything on-line where I can figure out what amount of child support I can expect to receive? I'm concerned about the challenges of raising my kids as a custodian without enough money to do so. Is there a child support calculator available?

A. The New Hampshire Bar Association has a web site that provides NH Revised 2010 Child Support Guidelines as well as a Calculation Table, a Guidelines Worksheet and instructions on completing the Guidelines worksheet.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Q. If one parent has been asked to leave the marital home by the other, and there are children that remain in that home with the other parent, will the departing parent be penalized for leaving, even if it is to provide a less argumentative environment for the kids?

A. Courts can view the departure of one parent from the family home as a form of abandonment regardless of one's intent. It is best to consult with an attorney before a parent leave the home where kids reside.

Q. If I get awarded child custody and keep the children the majority of the time, will I be able to make all important decisions about the children, since I am more in touch with their lives and development?

A. If the court enters an order awarding joint decision-making responsibility, it will be the responsibility of both parents to put aside their differences and make joint decisions in the best interest of the children. If one parent alleges an unwillingness to cooperate with the other parent, that parent must petition the court for a hearing for contempt of court and/or a custody modification.

Q. If relocation of my children wasn't covered in my divorce decree, can my spouse relocate with my kids to a different area of the state, or out of state?

A. In the unlikely event relocation wasn't specifically spelled out in the final divorce decree, these rules apply:

1. If the relocation results in the residence being closer to the other parent or to any location within the child's current school district, an objection to the move won't be entertained.
2. A dispute about relocation will be considered if the relocation involves leaving home home and area in which the child resides at least 150 days a year.
3. Prior to relocating, the parent shall provide reasonable notice to the other parent. For purposes of this section, 60 days notice shall be presumed to be reasonable unless other factors are found to be present.
4. At the request of either parent, the court shall hold a hearing on the relocation issue.
5. The parent seeking permission to relocate bears the initial burden of demonstrating: (a) The relocation is for a legitimate purpose; and (b) The proposed location is reasonable in light of that purpose.
6. If the burden of proof s met, the burden shifts to the other parent to prove, by a preponderance of the evidence, that the proposed relocation is not in the best interest of the child.
7. If the court has issued a temporary order authorizing temporary relocation, the court will not give undue weight to that temporary relocation as a factor in reaching its final decision.
8. The court, in reaching its final decision, will not consider whether the parent seeking to relocate has declared that he or she will not relocate if relocation of the child is denied.

Q. I understand that the parents must establish a Parenting Plan and submit it to the court for approval. What issues need to be covered in the parenting plan if we are to be successful getting it approved by the court?

A. In order to have a Parenting Plan approved by the court (rather than not being in agreement and having the court impose its own plan), the following issues will be covered:

1. Decision-making responsibility and residential responsibility.
2. Information sharing and access, including telephone and electronic access.
3. Legal residence of a child for school attendance.
4. Parenting Schedule, including: (1) Holiday, birthday, and vacation planning (2) Weekends, including holidays, and school in-service days preceding or following weekends.
5. Transportation and exchange of the child.
6. Relocation of parents.
7. Procedure for review and adjustment of the plan.
8. Methods for resolving disputes.

Download New Hampshire Divorce Forms

[New Hampshire Statutes - Chapters: 458:17]

Q. How does one know if they should get a marriage annulment or a divorce?

A. Grounds for annulment typically involve one party's lack of capacity for marriage or some type of fraud. A marriage annulment (or sometimes called a marital annulment) of a marriage in New Hampshire means that the court has determined that the marriage should never have taken place, was never valid to begin with, and returns the parties to single status. A marriage annulment is reserved for those marriages that came together as a result of fraud, duress, prohibited by statute or one of the parties did not have the ability to understand fully what they were doing.

Q. What is the process to obtain a marriage annulment?

A. One of the parties must petition the court much like you do for a marital separation or divorce proceeding. You must cite grounds for the annulment and have your partner served, at which time a hearing will be scheduled. The burden of proof is somewhat higher for an annulment versus a divorce, as you must provide proof of grounds.

Q. What are the grounds for annulment?

• Incest - Marrying someone too closely related e.g. mother-son, father-daughter, uncle-niece, and brother-sister is grounds for annulment,
• Addiction to drugs or alcohol - habitual intoxication of liquor or drugs like opium, cocaine or morphine means you can obtain an annulment,
• Same-Sex Marriage - marriages that are prohibited and such marriages can be annulled under New Hampshire annulment laws,
• Mental Incapacity - Mental Illness - If your spouse is mentally ill with little hope of improvement, you may file for an annulment, and
• Physical Disability - At the time of marriage, if any physical disability in your spouse was/is hindering you from having a normal married life, you can obtain an annulment under New Hampshire annulment laws and
• Underage Marriage

[New Hampshire Statutes - Chapters: 457: 1, 2 Chapter 458: 1,2]

Q. I understand New Hampshire divorce laws require the child support calculation to be made from net pay. What are the percentages? 

A. Child support deductions from pay are as follows:

• 1 child - 25%,
• 2 children- 33%,
• 3 children- 40%,
• 4 children- 45%

An individual's total support obligation is determined by multiplying the parents' total net income by the appropriate percentage. State law requires that the total NH child support obligation be divided between the parents in proportion to their respective incomes excepting child care expenses or medical insurance coverage for the minor children by the payor.

Q. A friend is having the state collect child support for her but the State is keeping some of the money. What's that all about?

A. If the state collects more in a month than is due for that family that month, it may deduct from the non-custodial's payment monies for any cash assistance; AFDC or TANF, that a family received. Also, child support agencies can recover all or part of the costs of their services from people who are not in a cash assistance program. These can include the cost of legal work done by agency attorneys or the costs of locating a parent, for example.

Q. Does Child Support Services make available direct deposit or Electronic Funds Transfer of child support it receives from my ex for me and my children?

A. Yes, it does. Refer to the link above this section that reads Division of Child Support Services. You can complete the form and mail it to DCSS.

Q. Once the NH child support amounts are established, can those amounts be raised, how easy is it, and when can I request it?

A. Yes, child support amounts can be modified as needs and conditions change. Modifying the child support amount is possible by going back to the court with a modification request. Typically courts like to see a change in circumstances that would modify the current amounts paid by 15% or more. Do the math.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Q. I am going to court for an increase in child support. My ex husband's salary has increased significantly. Can my request be retroactive to the time I first filed the request, or will it be after the final decision?

A. Yes, your petition will be retroactive to your filing date.

Q. My fiance and his ex-wife got divorced in New York in January 2006. In October 2007 his wife decided to move to Florida. Is the child support based off of the state where they divorced or the state the kids are currently living in?

A. The child support court order made in New York survives their move to Florida. Until or unless someone asks a Florida court to take over jurisdiction, the New York court order will stand.

Q. At what age does New Hampshire child support end?

A. NH child support ends at age 18, or graduation from high school, whichever is later.

 

[New Hampshire Statutes - Chapters: 458:17, 458:18]

Q. Can you describe what a legal separation is and why I might want one versus a divorce?

A. A legal separation (or it is sometimes called a marital separation) allows two persons who are still legally married to separate and live apart. The approval of the separation agreement by the court provides the structure necessary for the separation. The legal separation does not dissolve the marriage nor does it allow the parties to remarry. It does, however, provide for support and custody of minor children, visitation, alimony, and division of property and debts. Legal separations are not required as a prelude to filing for divorce. Legal separation is most often pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage's, or does not want to wait the state statutory waiting period for termination of marital status.

Q. If we get a legal separation, is there a number of years where the separation automatically converts to a divorce?

A. No. One needs to file a petition to convert the separation to a divorce.

 

Q. What does it mean to have or get a divorce settlement? Isn't that what the trial is for?

A. Most divorces never make it to trial (90% settle). Rather, negotiations between attorneys and clients resolve the issues in most cases. A divorce settlement simply means your and your spouse will arrive at and agree to a schedule that divides your marital assets and debt. Marital assets or property can include tangible and intangible property and assets, real or personal, whether title to the property is held in the name of either or both parties. Intangible property can include employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. Your attorney will have drawn up a settlement agreement and both parties will have signed on to it.

Q. My husband wants to offer me a divorce settlement from his retirement accounts (401(k), IRAs, etc) using a QDRO, but I suspect the offer is very low. Is there somewhere I or we can go to get a fair valuation and distribution?

A. You have two choices. You can have your divorce attorney prepare a proposal (they usually hire an outside, third-party for an evaluation) at significant cost, or you can get your soon-to-be-ex to agree to an accurate but affordable method using The QDRO Desk software.

Q. If we cannot agree (which wouldn't surprise me), we are at the mercy of the court and its "wisdom", correct?

A. Yes, if the court must determine the settlement, it will order order an equitable division of property between the parties consistent with this state being an "equitable distribution" state.

Q. What does the NH court look at when dividing assets from the marriage?

A. The court can consider any or all of the following:

• The duration of the marriage
• The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party
• The opportunity of each party for future acquisition of capital assets and income
• 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
• The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects
• 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
• 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
• 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
• The expectation of pension or retirement rights acquired prior to or during the marriage
• The tax consequences for each party
• The value of property that is allocated by a valid prenuptial contract made in good faith by the parties
• 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
• The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage
• The value of any property acquired by gift, devise, or descent
• Any other factor that the court deems relevant

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[New Hampshire Statutes - Chapters: 458:16]

Q. How is alimony treated in New Hampshire divorce cases?

A. Upon request, the court will make orders for alimony if one party lacks sufficient means to live adequately. Alimony can be granted on a temporary or permanent basis, which can include immediately after a marriage separation.

Q. Does our marriage have to be at least 10 years in duration? That's what I've heard.

A. A handful of states require a marriage of at least 10 years for alimony to be considered. New Hampshire is not one of them, although the courts do tend to use 10 years as a approximate benchmark. In other words, some marriages of less than 10 have received alimony orders and some greater than 10 years have not received orders for alimony.

Q. What determines whether alimony will be awarded? There must be criteria? Are these rulings based on New Hampshire divorce law?

A. The court will take into consideration how the parties lived prior to the petition for divorce, and will consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, property, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of assets and income; the fault of either party; and the federal tax consequences of the order. The court may also consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates and the non economic contribution of each of the parties to the family unit [e.g. stay-at-home mothers]. Alimony (or maintenance) is determined largely by case law in New Hampshire.

 

[(New Hampshire Statutes - Chapters: 458:19]

Q. I'm the divorcing Dad, and want to get the kids about half the time. Is my best chance making the agreement with my wife or requesting the court impose an order for visitation?

A. We don't know what your chances are making an arrangement with your wife, but we believe that that choice would produce the longest-lasting and least abrasive of all your choices.

Q. Must we accept the court's Visitation Schedule?

A. No, State laws permit that you two can fashion a Parenting Agreement and submit it to the court. If the visitation and custody portion holds up to the 'best interest of the child', and is lawful, courts will usually approve.

Q. What does the typical visitation agreement or Custody Schedule contain?

A. You will likely want included: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

 

Q. What are the grounds for divorce?

A. Fault grounds in include:

 

• impotency,
• adultery,
• extreme cruelty,
• conviction of a crime,
• treatment of the spouse with serious intent to injure,
• a spouse has abandoned the home for 2 years, with no contact,
• 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.

Q. Can you explain no-fault divorces and how cheating spouses play into any family court decision?

A. New Hampshire's No Fault provision is for Irreconcilable Differences. In this pleading, the courts find that allegations or evidence of misconduct are improper and inadmissible [except where parental rights and responsibilities may be impacted as they relate to a child's well-being].

 

[New Hampshire Statutes - Chapters: 458:7, 458:26]

Q. What are the residency requirements necessary for filing a petition for divorce, separation or annulment?

A. Both parties must reside in the State at the time the action is filed; or, The plaintiff reside in the State and the defendant was personally served within the State; or, The plaintiff resided in the State for one year immediately prior to the filing of the action.

 

 

[New Hampshire Statutes - Chapters: 458:5, 458:6, 458:9]

Q. Do mediation and marriage counseling get included in the divorce or separation process?

A. Before the final decree, the court will make a determination as to the likelihood for reconciliation, and may refer the parties to an appropriate counseling agency, and may continue the proceedings to allow that process to take its course. State law requires the parties to attend a 4-hour information session, which will provide instruction on how to help the children deal with the issues surrounding divorce, separation, and the allocation of parental rights and responsibilities. Marriage counseling is not provided.

 

 

[New Hampshire Statutes - Chapters: 458:6, 458:7]

Q. Can grandparents petition the court for visitation of their grandchildren?

A. Yes, grandparents may petition the court for visitation, and are advised to do so during the divorce of their adult child in order to minimize legal costs. Reasonable visitation privileges may be granted if the court determines that it is in the best interest and welfare of the children and any other factors the court might find relevant and appropriate. Considerations by the court may include: a.) preference of child; and b.) any domestic violence.

Q. The court will consider the following criteria in making an order relative to a grandparent's visitation rights to the minor child:

• Whether such visitation would be in the best interest of the child
• Whether such visitation would interfere with any parent-child relationship or with a parent's authority over the child
• The nature of the relationship between the grandparent and the minor child
• The nature of the relationship between the grandparent and the parent of the minor child
• The circumstances which resulted in the absence of a nuclear family
• The recommendation regarding visitation made by any guardian ad litem
• Any preference or wishes expressed by the child
• Any such other factors as the court may find appropriate or relevant

 

 

Q. Are there any waiting periods that we need to know about?

A. Other than meeting the residency requirements, there are no waiting periods associated with divorce in this state. Parties are able to remarry right after the divorce becomes final (the court issues a final decree).