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Brennan Lenehan Iacopino & Hickey

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Divorce in New Hampshire - Five Common Questions

As you consider whether to file a divorce from your spouse, you should consider how your life will change, and how the process works. The laws governing divorces are State law and vary considerably from jurisdiction to jurisdiction. Friends and relatives who have gone through the process may have some insight, but you should consult a practicing attorney to find out your rights and obligations both during and after the divorce process.

The facts of your case, and the circumstances of your family, will influence the final order issued by a court in the State of New Hampshire. No one can tell with absolute certainty how your divorce case will resolve, whether by agreement or by trial, but a lawyer can answer some of your questions as you consider divorce.

How are my spouse and I going to split time with our children?

In New Hampshire, the court operates with the understanding that children do best when they have regular and frequent contact with both of their parents. Primary to the determination of a parenting schedule, or “Parenting Plan” is the best interests of the child or children. In a divorce situation it is not unusual for the parents to disagree about what is in the best interest of the children.

The Court will encourage the parents to come to an agreement about a schedule for the children. That schedule can reflect whatever the parties are able to agree on. Some Parenting Plans call for one parent to see the children every other weekend and one or two evenings a week, while others provide a completely equal or “shared” schedule.

If the parties are unable to come to an agreement on parenting issues, the Court will likely suggest the appointment of a Guardian Ad Litem (“GAL”). The GAL is an independent attorney or social worker who acts as the investigative arm of the Court. Ultimately, the GAL would make a recommendation about the type of schedule that would be in the best interest of the children. The Court is not bound to accept the recommendation of the GAL, but in most cases the GAL’s report is highly suggestive of the type of plan the Court will ultimately issue.

How will I make ends meet?

Regardless of the parenting schedule, the court will typically enter an award of child support to the lower wage earning spouse or the spouse with primary residential responsibility of the children. Even in cases where the parents have absolutely equal time with the children, the Court may award child support in accordance with the child support guidelines. Wheaton-Dunberger v. Dunberger, 137 N.H. 504, 508-09 (1993).

New Hampshire determines child support based on a calculation of the family earnings and the number of children in the family. The “Guidelines” are presumptively reasonable under the law. A child support calculator can be found on the State of New Hampshire website at the New Hampshire Department of Health and Human Services website.

Additionally, based on a number of factors, the court could enter an award of alimony to the lower earning spouse. There is no calculator available to estimate alimony. Alimony is entirely discretionary. The Court determines whether to make an award of alimony based on the Financial Affidavits of the parties. Depending on the lower wage earning spouse’s unmet financial need, and the higher earning spouse’s ability to pay, the Court could make an award of alimony.

How will our property be divided? Who gets the house?

New Hampshire divorce cases are filed in the New Hampshire Family Division, which is a court of “equity”. The court has broad discretion to make a divorce order to fit the individual facts and particular circumstances of each case. There is no hard line rule on the division of assets.

In cases of a short duration (one to two years), the court will look to return the parties to the positions they were in prior to the marriage. In long term marriages (ten years and longer) the court will look to divide the property based on equitable principles. An equitable division of assets, in a long term marriage, is presumed to be 50%. The court can vary from that guiding principle when it finds the presence of one or more statutory factors contained at NH RSA 458:16-a. Primary among those factors is the ability of the parties to acquire capital assets in the future. NH 458:16-a(II)(c). The higher wage earning spouse has a far greater opportunity to acquire capital assets in the future, and therefore may be faced with a request for alimony.

In making a determination about the marital residence, the court will consider the best interest of the children. If one party is going to have the children more than the other, and they are going to try to maintain the children in their school district, the court may be more inclined to award the marital residence to that spouse. That decision may also influence an award of alimony, if the parent with primary residential responsibilities is the lower wage earning spouse.

The court’s Order will likely make the spouse who is awarded the marital residence financially responsible, if not immediately, then within a period of time. The spouse awarded the residence would likely be given a period of time to refinance the home, and remove the ex-spouse from the debt associated with the residence. If the spouse who was awarded the home is unable or unwilling to refinance the debt pursuant to the court’s Order, then the home would need to be placed on the market for sale.

How will we divide our debts?

The court will consider the marital debt, any debt incurred during the marriage, in a final division of assets. Any debt associated with property, i.e., a mortgage and auto loans, will likely be assigned to the spouse who is awarded the property associated with the debt. The court wants to ensure that joint debts are terminated. The failure of one spouse to pay a joint debt will damage the credit of the other spouse. In all likelihood, where a debt was incurred to maintain the family during the marriage, the debt will be deemed to be marital. Where one spouse is a stay-at-home parent with little to no income, it is unlikely the court would assign any significant debt to him/her.

How are we going to successfully co-parent after divorce? How long will I receive/pay child support?

The challenges of divorced parents are no less complex than those that you faced while married. In fact, and in most cases, relations between ex-spouses are fraught with more tension and anxiety than the parties experienced when married. It is important to recognize that life is fluid, and changes to the parenting schedule may need to occur. We also recommend that the parties remain flexible with each other to ensure for the stability of your children. There are adjustment and changes for everyone. Neither party will have the luxury of spending every holiday with their children. Both parties will learn quickly that sometimes a single parent needs the ability to call their ex-spouse and ask for a change in the parenting schedule, to be available to make a pick-up after practice, or to help out when another family member falls ill.

If both parties recognize the uncertainty of their own lives, they are more likely to remain willing to step up when called by their ex-spouse. In the end, there may be occasions where you are unable to reach agreement about the education and welfare of your children. In those cases, the court will entertain motions to modify.

Child support is payable until a child is 18 or has graduated from high school, whichever occurs later. NH RSA 461-A:14, IV. Either party may petition the court for a child support review every three years, or upon a substantial change in circumstances. NH RSA 458-C:7.

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