BELOW ARE SOME Common Questions we Receive from Clients

Most cases are resolved, in whole or in part, through mediation.  Mediation is a private and confidential process.  A mediator is a neutral third party who facilitates a discussion between parties to a dispute.  Mediators facilitate discussions about needs, goals, and solutions to help parties reach agreements on parenting and financial matters.  It is important to note that mediators do not represent either party and a mediator does not have the authority to issue a binding decision.  Mediated cases only settle when the parties reach an agreement.

If informal separation is not sufficient, a legal separation can allow parties to remain married and legally separate their affairs.  Parties may wish to remain married, yet separate financial and personal matters, for a variety of reasons including religion, insurance coverage, tax ramifications or the emotional and social consequences of a divorce.  A legal separation grants relief similar to a divorce, yet the parties remain married and cannot marry others.  Parties may remain separated for life, reconcile or divorce.  A legal separation may be converted to a divorce at any time.  In a legal separation, the parties agree or the court orders an award of all assets and liabilities, and decides issues of support and parenting rights/responsibilities. Some matters determined in the course of a separation would be final and others might be revisited.  For example, an asset division pursuant to a legal separation is final and determined using the same standard applicable to divorces.  In contrast, spousal support, child support and parenting rights might be revisited. Since final rights and entitlements to all assets would be decided in the context of the separation, the process of obtaining a legal separation can be very similar to obtaining a divorce, but without the finality.  Commencement of a divorce action after a finalized legal separation would likely cause the parties to negotiate or litigate the same issues twice, which is an undesirable outcome.

In collaborative cases, the parties, their attorneys and jointly retained professionals work cooperatively as a team to resolve all issues. The collaborative process is more respectful and less adversarial than other forms of negotiation.  The parties participate in a series of short team meetings, often four to six meetings that last approximately two hours.  Each meeting follows a predetermined agenda and works toward the ultimate goal of global dispute resolution.  Information is exchanged by agreement.  In the meetings, the team (parties, attorneys, divorce coach, financial neutral) works together to create results that meet the needs of both parties, rather than engaging in posturing and focusing on individual demands, rights, and entitlements.  Each party is encouraged to offer ideas and suggestions that would resolve the issues of concern raised by either party.  This brainstorming environment, in which the goal is mutually satisfactory resolution, often leads to very creative results, a high degree of satisfaction by the participants and durable resolution.  For more information about the collaborative process visit the International Academy of Collaborative Professionals (https://www.collaborativepractice.com) or the New Hampshire Collaborative Law Alliance (https://collaborativelawnh.org/).

New Hampshire recognizes nine fault grounds, including: adultery, extreme cruelty, treatment to seriously injure health or endanger reason, habitual drunkenness, conviction of a crime punishable by incarceration of more than one year, impotency, desertion, abandonment and membership in a religious sect that declares marriage to be unlawful.  Fault is a permissible consideration in both property distributions and alimony awards.  Fault may be considered if it caused the breakdown of the marriage and: (1) caused substantial physical or mental pain and suffering; or (2) resulted in a substantial economic loss to the marital estate or the injured party.  The court’s decision on alimony and property division matters is a matter of equity and an exercise of significant discretion.  A finding of fault may be given significant weight and result in a large impact on property division and alimony or it may have no impact at all in matters of property division and alimony.  Fault grounds are appropriate and may serve a party’s interest when: (1) fault will make a meaningful difference to the financial outcome of the case; and (2) a party is in possession of the necessary evidence or is willing to fund the discovery necessary to obtain it.  Even then, a party wishing to pursue fault should understand that such fault allegations will likely result in lengthy litigation and increased costs and animosity from associated discovery.

Divorce hearings and most documents in a court’s divorce file are accessible to the public.  Protective orders and confidentiality agreements can limit access to records.  In cases resolved through alternative dispute resolution before filing (i.e. negotiation, mediation, collaborative law or arbitration), only the final settlement documents, generally free from allegations and worrisome content, are available in the public file.  Financial affidavits are sealed by statute.

A divorce agreement must be in the proper format to be approved by a court.  Then the required settlement documents must be filed with the court.  Assuming all is in order, courts usually review and approve divorce settlement agreements without the need for a hearing or appearance in court.  The timeframe for approval of such agreements varies from court to court but is generally around one month from the date of filing.

New Hampshire courts use a variety of terms to describe the rights of parents, including: decision-making rights and responsibilities, residential responsibilities, parenting rights and parenting schedule.  In years past, “physical custody” was used to define a child’s schedule.  The terms used today, which are simpler and more accurate, are “parenting schedule” and/or “residential responsibility.”  Parenting schedules are designed with a focus on the best interest of the child.  Parenting schedules establish each parent’s rights to spend time with their children during regular weeks, vacation weeks, holidays and three-day weekends.  In New Hampshire, the parenting schedule and other parental rights and responsibilities are set forth in detailed documents known as “parenting plans.” A parenting plan is required in any case with minor children.  Parenting plans are either created by the parents or ordered by the court.  They may be simple or extremely nuanced.  Some cases benefit from very specific provisions to clarify rights and responsibilities.  Other cases, especially when children are near the age of majority, require minimal detail.   However, all parenting plans must include a detailed parenting schedule, specifying periods when each parent has residential responsibility or non-residential parenting time. Parenting plans should be designed to fit the needs of each family.  The New Hampshire Circuit Court website offers a very basic parenting plan online.  See: www.courts.state.nh.us/forms/nhjb-2064-fs.pdf .

Absent agreement to the contrary, parties to family-related litigation are required to exchange certain information very early in a case.  This requirement is known as “mandatory disclosure.”  A mandatory disclosure is designed to facilitate the early evaluation of a case and enhance the possibility of early case settlement.  The exchange of this basic information also eliminates the cost and delay associated with issuing specific requests for necessary documents.  There are various deadlines for the document exchange and penalties for noncompliance.  The information that must be exchanged differs by the type of case filed.  The mandatory disclosures for a divorce action are the most comprehensive. For lists of the mandatory disclosures required in family-related actions, such as divorce, parenting and modification actions, see: https://www.courts.state.nh.us/fdpp/mandatory-disclosure-forms.htm.  Protections for certain information may be available if needed.

Divorcing parties with minor children are required to attend a seminar, known as the “first appearance.”  As indicated by its name, the first appearance seminar is the very first court event and will be scheduled before any other hearings or events, unless emergency circumstances dictate otherwise.  The first appearance is an hour-long informational seminar conducted by a judge to explain the court process and settlement options.  The seminars are attended by many people, sometimes dozens of people, who filed a divorce or parenting action in the previous weeks or month.  The first appearance is not case-specific.  The court will not seek or hear any evidence relating to a specific case.  No substantive orders will be issued.  The seminar is purely educational in nature. There is no requirement that the parties sit with or near each other.  Since the first appearance does not have any bearing on the outcome of a case and is strictly educational in nature, it is not necessary for counsel to attend the first appearance conference.  At the conclusion of a first appearance seminar, a case manager will schedule the next event in the case. For further information about first appearance, including a video example of such a session, see: https://www.courts.state.nh.us/fdpp/divorce_parenting.htm