Chapter 1

The Basics of Family Law

If you are reading this book, you or your spouse, or both of you, are already considering divorce. You are about to embark on a journey that will change your lives and your children's lives forever. Pain, anger, and guilt will accompany you on this journey. You and your spouse may lash out at each other. Your divorce may turn into a war.

It doesn't have to be so. In my experience, two factors have made the process worse than it needs to be for many families: (1) anger, pain, guilt, and other negative emotions, (2) lack of information about decision-making options, divorce law, and children's needs. Couples try to use the court system to deal with the pain that divorce causes, or to punish their spouses. Some spouses take rigid positions without understanding the negative results that may follow. Others act in ways that hurt their negotiating positions, because they don't know the law.

A spouse who needs alimony, for example, may fail to pursue it because she thinks it is unavailable in New Hampshire; or a spouse may give up rights to the other spouse's retirement benefits, not knowing what he is entitled to. A spouse may move out of the family home without taking the proper steps. Some couples pursue contested divorces, despite the harm to their children and to their bank accounts, because of emotions or lack of information. Many people unintentionally hurt their children by involving them in the divorce.

With better information you can make better decisions, in spite of the enormous stress of your marriage or civil union coming to an end. You can learn how divorce works. You can choose to participate in making the decisions in your divorce. You can choose to master your anger and pain and work toward a fair settlement of the divorce issues. You can protect your child or children from the worst consequences of divorce. You can find ways to co-parent your children despite the problems you have had in the relationship and the ultimate decision to divorce.

Most couples facing divorce want to understand the process and their options. They want to maintain control of their own divorce. You can do this only when you understand the legal basics. If you choose to be informed and active in your case, and to make fairness your goal, your emotional wounds will heal. You will survive your divorce, and so will your children. You will have a "good" divorce.

What is in this book?

The remainder of this chapter is an overview of New Hampshire divorce procedure and law. The following chapters provide in-depth discussion of specific topics, such as parenting, child support, alimony, and property division. At the back of the book, there are book lists, definitions of technical terms, web site lists, and other useful resources and information.

This book also covers three topics that a person facing divorce needs to know about:

Some basic legal terms

Divorce is a legal procedure to end a marriage or civil union. The Family Division of the Judicial Branch handles divorces. Each year, New Hampshire's vital statistics agency records over 5,000 divorces. It usually takes at least three or four months to get a divorce in New Hampshire; the average is seven months. In some cases, it can take three years or more.

If one spouse insists on getting a divorce, it is very difficult for the other to stop it. You don't need your spouse's permission to get a divorce. However, if you and your spouse agree on getting a divorce, you will save time and money.

Some people consider getting a legal separation, instead of a divorce (sometimes because of religious principles). This is a legal procedure to allow spouses to live apart permanently under court orders. Simply living apart is not the same as a legal separation. However, very few New Hampshire couples actually obtain a legal separation: there are approximately fifty each year. A married or "unionized" couple may choose to live apart without getting a legal separation or taking any other legal action.

The court paperwork and process for a legal separation is similar to a divorce. Assets are divided and support and parenting orders are made, just as in a divorce. In New Hampshire, legal separation is not a quick or simple procedure. It is a distinct legal process, which takes as long as a divorce, and costs as much. The marriage (or union) itself is not dissolved, the spouses are not free to remarry, and the wife may not resume her former name. With these exceptions, the material in this handbook also applies to legal separation.

An annulment is a legal procedure that is rarely used (about five per year), and only when there was some legal defect from the beginning of the marriage (or union). The annulment order declares that the marriage never existed. Because it is often difficult to prove the legal defect, an annulment generally takes longer and costs more than an uncontested divorce. (Note that this refers to a civil annulment. The annulment procedure in the Catholic Church is not a matter for the courts. See the resources section in appendix C for information on Catholic annulments.)

Parenting and child support disputes between parents that have never married are resolved in the same way as in a divorce case. The same law applies and the procedures are the same. If you are facing an "unwed" dispute, the chapters on parenting, support, and decision-making options will apply to your case. Alimony and property division laws do not apply to couples who were never married. All the divorce laws also apply to civil unions. In this book, the term "spouses" is used for both marriages and civil unions.

No-fault or fault?

In New Hampshire, the legal basis for a divorce may be either no-fault or fault. A no-fault divorce is based on "irreconcilable differences" which have caused the "irremediable breakdown" of the marriage or civil union. This means that the legal relationship has so broken down that one or both spouses are unwilling to continue it.

Examples of grounds for a fault divorce are: adultery, extreme cruelty, and endangering health and reason. Examples of rarely used grounds would be abandonment for two years, or joining the Shakers. Approximately 1 percent of New Hampshire divorces are granted on fault grounds. Some divorces are filed on fault grounds, but later the couple agrees to a no-fault divorce. (See chapter 13 for the impact of a fault divorce on property division.) In my experience, fault divorces are more expensive, take longer, and make co-parenting more difficult.

What are the issues in a divorce?

People rarely fight in court about whether or not there will be a divorce, because the court virtually always grants it. If divorcing spouses disagree, it is usually about one or more of the following legal issues:

This book discusses each of these topics in detail.

How do these issues get resolved?

There are five ways of resolving disputed divorce and parenting issues:

Because the terms of the divorce orders may affect the family for many years, it is wise for the couple to come to an agreement by themselves, or with the help of a mediator, or through their lawyers, before the final hearing. Most couples can make some, but not all, decisions by themselves. After all, many couples divorce because of their inability to communicate. Mediation and collaborative practice are decision-making choices that can improve communication. Mediation works well for many couples, and may be ordered by the court. Collaborative practice suits others who wish both to make their own decisions and to have the active involvement of their lawyers.

Negotiation through lawyers is the route traditionally chosen by couples. Most people work out, through their lawyers, the written agreements that become the basis of the divorce. Approximately 10 percent of divorce cases are decided by the court after a contested hearing. (See chapter 4 for more details on making decisions.)

What about "custody?"

New Hampshire has abolished the concept of "custody" in divorce. Instead, the parental rights and responsibilities of both parents are spelled out in a parenting plan. One aspect of this is the decision-making responsibilities for the child, including educational, medical, and religious decisions. After a divorce, or an unwed parenting case, most parents continue to have joint legal decision-making responsibilities.

Another part of the parenting plan is the parenting schedule, spelling out when each parent will have responsibility for the child or children. If the court decides the parenting schedule, the test is what is in the "best interest" of the child. There is no preference for mothers or fathers. Most parents work out the parenting plan, including the schedule. In recent years, more and more families have chosen parenting schedules that share the children on a 50/50 basis, or close to that. (See chapter 10 for details on parenting.)

How is child support determined?

Generally, one parent pays support (with rare exceptions), and may have to maintain life and health insurance. Child support is based on a complicated formula called the Guidelines. To get a rough idea of what that support will be, use this method: take the gross (all) of the supporting parent's income, subtract taxes and the cost of the health insurance covering the child, then apply to that figure the following percentages to estimate the amount of support:

This is a simplified method for estimating child support! You must use the official forms and charts to set the accurate amount. (See chapter 11 on "Child Support" for more specifics, including when the Guidelines may not apply.)

Alimony, property division, and taxes

Alimony, or spousal support, can be awarded if one spouse needs it and the other spouse has the ability to pay it. A husband can receive alimony if he needs it and his wife is able to pay. The main characteristic of an alimony case is a substantial income difference between the spouses. (See chapter 12 for specific information on alimony.)

Unless the couple can reach an agreement, the court will divide the property (assets) in a fair and equitable way. This could mean a 50/50 division, or some other ratio. The assets to be divided include his assets, her assets, and joint assets. In doing so, the court may consider, among other things:

See chapter 13 for more on property division.

Federal tax law can potentially lead to unexpected results in property division. A division initially intended to be 50/50 could become substantially unequal. It is important to consider taxes at the time of divorce to avoid an unanticipated tax bill. Tax exemptions and filing status are other tax issues. It is wise to have an accountant review the property division and other financial aspects of your divorce. (Chapter 3 has basic information on financial planning, and chapter 14 and appendix A discuss taxes.)

What should I do (and not do) when first thinking about divorce?

Get advice (including legal and therapeutic) before you take any significant step. Gather information on your divorce options, and your family finances. Take time to assemble this information, review it thoughtfully, and make good decisions. Most importantly:

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