HOW LONG DO YOU HAVE TO LIVE IN NEW HAMPSHIRE BEFORE YOU CAN FILE FOR A DIVORCE?
If both spouses are residents of New Hampshire, either spouse can file for divorce at any time. If only one spouse lives in New Hampshire, then that individual must have lived here for at least one year before filing for divorce. An individual who is not a resident of New Hampshire cannot initiate a divorce in New Hampshire (RSA 458:5).
Once the divorce is filed, either spouse can move from New Hampshire without affecting the jurisdiction New Hampshire has over the divorce. This means, even if one spouse moves out of New Hampshire, the divorce case can still be heard in the court which covers the New Hampshire city or town they formerly lived in. Even if both spouses move away from New Hampshire before the divorce is final, the divorce can still proceed to the end in a New Hampshire court.
WHAT IS THE PROCESS OF GETTING A DIVORCE IN NEW HAMPSHIRE, AND HOW LONG
DOES IT TAKE?
The first step to begin a divorce proceeding is to file a document called a "libel for divorce," in which the party seeking the divorce states the basic history of the marriage and lists the requests he or she is making to the court. RSA 458:9 states that the divorce libel is to be filed in the Superior Court of the county in which either spouse lives. There is a filing fee of $101, plus a $2 surcharge for couples with children.
(NOTE: In 1996, a pilot project known as a Family Division Court began in Rockingham and Grafton Counties. In this project, families are assigned to one family division judge or marital master. These justices have been specially trained to find prompt and fair resolution to family issues (RSA 152:1). The Family Courts were granted jurisdiction over the city or towns formerly covered by the District Courts in both Rockingham and Grafton Counties. Records dated before July 1, 1996, which had been held at the District Courts were relocated to the appropriate Family Courts (RSA 152:7). The program is intended to promote public interest and better serve you as you seek judicial resolution to such family matters as divorce, child custody and visitation, child support, legal separation, paternity, domestic violence, juvenile delinquency, child abuse and neglect, and other child-related issues.)
All Superior Courts conduct a program called SCOPE, which offers a general overview and introduction of the court system, and specific court procedures. This is designed to help people who are representing themselves. SCOPE meetings generally take place two Wednesdays each month, and offer information at no cost to any interested person. For more information about the SCOPE program, contact the Superior Court Clerk in your area for times and locations (see resource section).
The clerk's office at the Superior Court then issues orders of notice, requiring the party who filed the divorce to ensure that the other party is served by a sheriff with copies of the libel for divorce. The sheriff's office can either deliver the divorce papers to that party's home, or he or she can go into the sheriff's office and pick up the papers. There is a fee for both forms of service, which varies depending upon the county where you live. The divorce can remain on file with the Superior Court for a period of up to two years without any further court action. After two years, if there is nothing filed, the court will dismiss the divorce.
After the divorce is filed, the parties typically begin the process of exchanging financial information and documentation. If one spouse is not willing to provide financial or other information that the other spouse is entitled to know, the law provides for "discovery" procedures, which can force the unwilling spouse to provide the necessary information and documentation.
Under RSA 458-D, "Seminar for Parents involved with Custody and Support Issues," if you are filing for divorce in Strafford, Carroll, Rockingham or Grafton Counties, and you have children, you are required to attend a mandatory four-hour program called "Putting Children First." The program is covered in two, two-hour sessions. The program discusses the impact divorce can have on a child and offers an opportunity for parents to educate themselves on the proper ways to cope with children and divorce. The cost of this program is $75. If a family cannot afford the fee, it is possible to have it lowered or waived.
When both parties have all the information needed, they attempt to figure out a final settlement. This can be done through each party's lawyers, in mediation, with a neutral person, or directly between the couple. The entire agreement, called a permanent stipulation, must then be written out in a court-specified format and signed by both parties and/or their lawyers. The permanent stipulation is submitted to the Superior Court for approval. A brief uncontested divorce hearing is held where the spouse starting the divorce must appear and testify to the facts contained in the initial "Libel for Divorce." The divorce is then finalized within a few days after the final hearing. About 90% of divorces in New Hampshire end in this way.
HOW DO YOU CHANGE YOUR NAME IN A DIVORCE?
You can go back to your maiden name when the divorce is final for no cost. You can ask the court to make the change. If you decide to change back to your maiden name later or even change your name to something completely different, you must file a request for a change of name with the Probate Court in the county where you live. There is a fee to make the change after the divorce is final.
IS THERE AN ADVANTAGE TO FILING FIRST?
There is usually no advantage to being the spouse who files the divorce. The divorce process is designed to give both parties a fair chance to present their positions and arguments to the judge.
DO YOU NEED A LAWYER TO GET A DIVORCE?
There is no legal requirement that you have a lawyer represent you in a divorce. There is information for couples who wish to get a divorce pro se, without a lawyer. Pro se handbooks are available in libraries or by calling the New Hampshire Bar Association (603-224-6942). You can also buy a booklet through New Hampshire Mediation (603-224-8043). When there are no issues regarding domestic violence, custody of children, real estate, or significant property and support issues, it may cost less to get a divorce without a lawyer.
It is always good to meet with a lawyer at least once to review your situation and be sure that nothing important is missed. In this visit, you can discuss the options for owning and dividing real estate, dividing debts and retirement benefits, the calculation of child support and alimony, or what happens to your taxes when you divide property.
HOW MUCH WILL AN ATTORNEY COST?
Each person usually pays for their own lawyer. It may be changed if one spouse has enough money and the other does not. If one spouse is found by the court to be in contempt of an existing court order then the court may award attorney's fees to the extent that they were paid to enforce the terms of the order.
Lawyers are normally paid on an hourly basis. The hourly rates vary depending on the lawyer's years of experience, level of expertise, and reputation. Some lawyers will handle simple divorces (no kids, no money, no disagreements) for a low flat fee. Lawyers usually do not receive a percentage of the money you receive. It may be good to call different lawyers to find one who will work out a payment plan where the fees can be paid over time.
If you cannot pay your lawyer for the divorce, the New Hampshire Bar
Association provides two different referral services for individuals who
qualify. To be eligible, you must be low income and have no other money.
The Legal Advice & Referral Center (LARC) matches a client with
a lawyer willing and able to represent the client at no cost. The Reduced
Fee Referral Program makes referrals for those who have the ability
to pay something toward legal fees, but at a reduced rate. Both programs
have long waiting lists. More information about these programs can be obtained
by calling the New Hampshire Bar Association (603-224-6942).
HOW DOES MEDIATION WORK? IS MEDIATION RIGHT FOR YOU?
Mediation is an option for divorcing couples. In mediation, another person can assist you in deciding the issues in your divorce. Mediation can be cheaper and quicker. The divorce mediator's job is to help the couple arrive at a fair settlement with no winner or loser, keeping the best interest of the children in mind. The mediator is not on anyone's side and does not make any decisions. Instead, the mediator helps the couple look at all options. The mediator's job is to make sure that each person gets a fair share and that both people are treated equal.
Mediation should not be selected in situations where domestic violence exists. When one party is abusive and controlling towards the other, mediation is not a good way to resolve any issues that come in a separation or divorce.
Mediators usually charge less than lawyers, and most offer a sliding scale fee. Mediators are paid on an hourly basis. The cost of mediation is usually shared by each person unless one person has much more money than the other. A current list of all New Hampshire-certified mediators is in each courthouse. The same information is available from the Marital Mediation Certification Board in Concord (603-271-6593) or by looking in the Yellow Pages under "Mediation Services."
WHAT IF AN AGREEMENT CANNOT BE REACHED?
In cases where the each person cannot come to an agreement on all the
issues, the court will schedule a final contested divorce trial.
First, the court will hold a pre-trial conference. The court will discuss
with each person or their lawyers what issues are not agreed, what witnesses
will be called, and what amount of time will be needed for the trial. At
the time of the trial, each party presents his and her positions to the
judge or marital master. The court then issues a decision several
weeks later. The decision does not become final for 30 days after the date
of the decision. This 30-day period allows for the filing of an appeal.
HOW DOES A TEMPORARY ORDER WORK?
Because it often takes four months to one year for a divorce to be final, couples may want to have temporary court orders in place during this time. A temporary hearing can be requested at the time the divorce is filed, or at any time until it is final. The court will either approve the temporary agreement or make a temporary order regarding such issues as custody, child support, alimony, protective orders, use of vehicles, possession of real estate, and responsibility for paying bills. These temporary orders are enforceable court orders and will remain in effect until the final divorce orders replace them.
DOES NEW HAMPSHIRE RECOGNIZE COMMON-LAW MARRIAGES?
A common-law marriage is where a couple lives together as though they are married, without having gone through a legal ceremony. The law regarding common-law marriage in New Hampshire is unusual. New Hampshire does not recognize common-law marriage. If a couple wishes to not marry, they have little protection from our laws regarding marriage and divorce.
In New Hampshire, if a man and woman live together as husband and wife for a period of more than three years, when one dies the couple will be considered to have been married if they acted like a husband and wife and lived together (RSA 457:39). It is only in the case of death that a common-law marriage is recognized in this state. The surviving partner in a long-term (three years or more) relationship may have inheritance rights. They may be treated as a surviving spouse entitled to a portion of the deceased partner's estate.
WHAT IS THE DIFFERENCE BETWEEN A DIVORCE AND A LEGAL SEPARATION?
New Hampshire law offers two distinct options to couples who are seeking the help of the courts to end or reorganize their families. These options are divorce (RSA 458:7) and legal separation (RSA 458:26). There is no requirement that you be legally separated prior to getting a divorce.
Legal separation is not used much today. The only difference between divorce and legal separation is that at the end of a divorce, the couple is no longer married and each party is free to remarry. At the end of a legal separation, the couple is still legally married.
If one spouse starts a legal separation and the other spouse cross-files for a divorce, the courts will inevitably grant the divorce. If a legal separation is granted, it can be later changed to a divorce without a waiting period. However, a new legal proceeding must be filed, which may add to the legal costs. Current laws cover the insurance benefits to divorced spouses and dividing of property. If a marriage has broken down, there is little value to getting a legal separation.
A civil annulment of a marriage can be granted only under very limited and specific circumstances. A marriage can be annulled if (RSA 458:1):
WHAT ARE NO-FAULT AND FAULT DIVORCES?
Today, over 95% of all divorces in New Hampshire are granted on no-fault grounds. In the 1970s, the no-fault ground of irreconcilable differences was introduced (RSA 458: 7-a). No-fault grounds are easier because very little testimony or proof is required.
Fault grounds are still on the books today (RSA 458:7), and are used less often. The fault grounds used most are adultery, extreme cruelty, and treatment that endangers health or reason. The grounds of abandonment or desertion are rarely used because they require that someone be gone for a period of two years or more with no support or contact.
Fault grounds can have an impact on the dividing of property and on the award of alimony (RSA 458:16-a and RSA 458:19). In families where there is no property and little income for alimony, fault grounds are hard to prove. Claiming irreconcilable differences does not diminish any of the other arguments a spouse may use to justify an award of alimony or an unequal division of property.
WHAT IS ALIMONY?
New Hampshire law recognizes that one spouse may need financial support from the other spouse (RSA 458:19). Alimony, or providing money to the other spouse, can be ordered for a specified number of years (there is no legal maximum or minimum period) or for the rest of a spouse's life. Alimony can help a spouse get a better job or get an education. It is not necessary to have children from the marriage for a spouse to qualify for alimony.
To see if court-ordered alimony is necessary, two factors must be looked at:
There are no guidelines or formulas, so the length of time and amount of alimony is determined on a case-by-case basis. The law requires the court to consider a number of different factors such as the length of the marriage, the needs of a homemaker or parent to maintain the home for children, fault grounds for the divorce, and tax consequences to the parties.
In addition to alimony, a spouse who has provided health insurance coverage during a marriage for the other spouse may be required by court order to continue to provide that coverage after the divorce. The federal COBRA law requires companies to allow former employees to remain on the companies' insurance policy for 18 months or until they find a new job. The employee pays 100% of the insurance premium. The New Hampshire state law (RSA 415:18 VII) requires health insurance companies to make coverage available for up to three years to a divorced spouse if an employee is a member of a group plan. This can be a benefit to a newly divorced spouse who is unemployed or employed in a job that provides no health insurance benefits.
IRS regulations state that alimony is taxable as income to the recipient and is deductible from income by the payor.
HOW IS PROPERTY DIVIDED BETWEEN SPOUSES AT THE TIME OF DIVORCE?
The division of property requires the parties to take several steps. First, the marital estate must be identified. The marital estate includes everything -- assets as well as debts -- that both of the parties own. It does not matter who owns the asset, or who brought the property into the marriage. Both of the parties are obligated to disclose the true value of all assets and liabilities. Each item in the marital estate must then be valued, such as:
Household furniture and personal items, unless of unusual value, are divided fairly between the parties.
The final step is to divide the property equitably, or fairly, between the spouses. Equitable does not necessarily mean equal. An equal division is a good starting place, especially when both spouses are on equal footing in terms of income and career opportunities. However, New Hampshire law lists over 15 different factors that can be taken into consideration, which justify varying from a 50/50 division (RSA 458:16-a). These factors include such things as:
The home can be one of the most difficult assets to divide. Frequently, it must be placed on the market and sold. However, when there are minor children in the family, the courts are supportive of having one of the spouses, typically the custodial parent, maintain the house after the divorce as a home for the children until they are out of school. It is important to get competent legal advice about all available options of ownership and distribution of the value of a home, as well as about the problems of the taxation of real estate.
Generally speaking, the goal at the time of divorce is to have all:
While in the process of divorce, it is best to leave your spouse's things alone. Do not pack them up, throw things out, or destroy things. Let the other party pack up his or her own belongings and get them out of the home. It may even happen with a police escort.
WHAT HAPPENS TO A PROTECTIVE ORDER WHEN DIVORCE IS FILED?
Sometimes a couple's separation will begin when one spouse files a protective order in the District Court under RSA 173-B. In that case, you have a choice of seeking assistance from the local District or Family Court or of requesting the protective order as part of the divorce case in the Superior Court (RSA 458-16).
While it is possible to request a protective order as part of your final divorce decree (RSA 458-16), it is in your best interest to seek protection under RSA 173-B. A domestic violence protective order offers you more protection than an order obtained through a divorce. In addition, police officers cannot respond to the violation of a protective order obtained through a divorce; they can only take action if the protective order has been sought under RSA 173-B.
If your divorce is already pending in the Superior Court, it is best to seek a 173-B protective order from the Superior Court. This saves everyone from the often confusing and difficult situation of having two different courts addressing the same issues of custody, temporary possession of the home and support. If you go to the District Court for a protective order, the law (RSA 173-B:3 IV) states that, upon request of either party, the District Court domestic violence proceeding can be transferred and consolidated with the divorce action in the Superior Court. This very easy procedural step makes life much less confusing for everyone.
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