FAMILY LAW
"Marriage is really tough because you have to deal with feelings... and lawyers." Richard Pryor (1940 - 2005)
"The secret of a happy marriage remains a secret." Henny Youngman
"Remember that not getting what you want is sometimes a wonderful stroke of luck." Dalai Lama
Atttorney Wheelock's Areas of Practice in Family Law include:
Adoption
Alimony or spousal support
Child Support
Children's Rights
Guardianships
Guardian ad Litem Investigations
Residential Responsibilty & Parenting Schedules (FKA Custody & Visitation)
Mediation
Parenting Plans
Divorce
Restraining Orders
Paternity and
Prenuptial Agreements
Divorce And Mediation
Attorney Wheelock has represented individuals in divorce and other family law proceedings throughout the New Hampshire Judicial Branch for over twenty years. Please contact our firm today at (603) 431-3430 to arrange your free consultation.
While divorce is not pleasant, there are definitely steps you can take to minimize the acrimony, emotional trauma and expense.
"No-Fault" Divorce
Under the "No-fault" section of the New Hampshire divorce statute, RSA 458:7-a, your spouse doesn't have to have done something "wrong" for you to obtain a divorce, you can obtain a divorce for "irreconcilable differences". No-fault means just that, nobody is at fault or or at least fault is deemed irrelevant. Hence, the Marital Master or Judge in a no-fault divorce proceeding may not even listen to your spouse's numerous accusations of fault, if all that is realy in dispute are the children and their support.
There are two alternative ways to resolve these issues, you can resolve them between yourselves by agreement with or without the the assistance of attorneys and a professional mediator, or you can have a Judge or Maritall Master decide them for you. The first alternative is quicker, saves money, and keeps your private affairs private. The second can be as time-consuming and as expensive as any other litigation and, if you've read our local paper lately, you know most definitely does not keep your private affairs private.
Mediation
The New Hampshire Judicial Branch - Family Division is currently ordering parties to divorce and parents to participate in mediation in nearly all cases involving disputed parental rights and responsibilities. What goes on in mediation varies, but the basic idea is that you and your spouse (with or without attorneys) sit down with a certified mediator, knowledgeable about the legal and psychological aspects of divorce, and together you hammer out an arrangement that you can live with. The mediator has no power to issue a binding decision. He or she serves as a facilitator, not a judge. Most mediators, including lawyers who serve as mediators, have had special training in conflict resolution and recognize that divorce is painful.
If you are able to reach a settlement agreement - "a Permanent Stipulation" - that describes what you are doing with the house and other property, your children and child support, you can then request a final decree of divorce incorporating your agreement. You may be asked to make a brief appearance in court, where a Marital Master or Judge asks you if you know what you're doing, but the whole hearing process is much less nerve wracking than a contested divorce.
What you should know, however, about mediation and domestic violence.
Domestic violence it helps to know the law.
Domestic Violence Resources
Contested Divorce
A contested divorce is more complicated and involves higher stakes. If you are dragged into litigation and simply cannot avoid a contested divorce, and, since the odds of your finding wise counsel through the Yellow Pages aren't particularly high, you will want an experienced domestic lawyer with a proven track record to guide you through the process.
How often will I see my kids?
Custody and visitation are fighting words. Divorce lawyers and judges now use less confrontational terms such as "residential responsibilty" and "parenting schedule" instead. The new terms are not just euphemisms. They signal a dramatically different approach to the age-old problem most important to divorcing spouces and New Hampshire's new policy, as set forth in the Parental Right And Responsibilies Act, RSA 461-A:2 and below, which guides the court in making decisions affecting your parental rights and responsibilities.
"Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to:
(a) Support frequent and continuing contact between each child and both parents.
(b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced.
(c) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, or child abuse/neglect.
(d) Grant parents and courts the widest discretion in developing a parenting plan."
Family law applicable to parenting schedules emphasize the needs and bests interests of the children, not the rights of their parents. For example, just a few years ago experts believed an infant was at risk if the child spent more than a few hours away from his or her primary caretaker, usually the mother. Local Courts routinely denied fathers' requests to spend overnights with their infant children, and sometimes even curtailed overnights with children under the age of five. That was considered consistent with the best interests of the child, according to the old school of jurisprudence. Father's rights were less important than the child's need for an undisturbed bonding experience with Mom. The most recent research and literature on child development now shows, however, that infants are capable of forming multiple attachments and bonds. That means infants can and usually should spend as much time as possible with both Mom and Dad after divorce. New Hampshire Courts are therefore now incorporating the New Hampshire Parental Rights And Responsibilities Act guidelines into most "parenting schedules", requiring parenting classes for all divorcing parents of minor children and detailed "Parenting Plans".
Child Support & Alimony
Mention alimony in a divorce case and you will draw a strong reaction. The higher income earner usually feels exploited. The lower income earner feels ambivalent. On the one hand, lower income earners want their fair share of family resources, and on the other, they want to cut ties to their former spouses. Interestingly, most New Hampshire cases don't involve any alimony award. When awarded, alimony is typically paid in periodic installments (weekly or monthly, for example) for a certain length of time or until the death of one of the spouses or the remarriage of the recipient. Unlike child support, alimony is taxable to the recipient and deductible by the paying spouse. New Hampshire has uniform Child Support Guidelines to help calculate an appropriate amount of child support in a reasonable way. However, alimony unlike child support, is not determined by a uniform set of published Guidelines and Judges have wide discretion as to how long it lasts.
Learn more about the NH Child Support Guidelines.
Property Division
Absent a prenuptial agreement, assets acquired before and during the marriage are generally subject to a division between spouses upon divorce. A prenuptial agreement may protect certain assets in case of divorce. In New Hampshire, courts award each spouse an equitable share of the marital estate - not necessarily an equal share. An equitable share may give one spouse more or less than half of the assets depending on a number of factors like the length of marriage, conduct during the marriage, contribution toward the acquisition and preservation of the assets, income, education, health, age, future earning capacity and so forth. Lawyers help clients by identifying and valuing assets, and then negotiating or litigating for the best possible outcome.
Divorce courts deal with all kinds of assets such as houses, pensions, retirement accounts, cash, savings, pets, inheritances, trusts, family businesses, stock options, art, jewelry, antiques, guns, gifts, engagement rings, household contents (probably the Court's least favorite category), cemetery plots, country club memberships, cellular phones, photograpgh albums and you name it - just about every other thing you can think of. Every divorce lawyer has a war story about one particularly nasty fight over a television set or other items of little relative value. Divorcing spouses are wise to avoid those types of fights, which are really over who gets the last word, not the item in question.
Divorce & Taxes
The arrival of tax season is a reminder of the importance of tax-related issues in planning and structuring a divorce. To maximize assets, realize potential tax savings, and possibly avoid later disputes, divorcing or separating couples should consider an array of tax consequences. At a minimum, consider the deductibility of alimony payments, the claiming of dependency deductions, and the tax consequences involved in the distribution of assets and the sale of the marital home. IRS Publication 504 is a good starting reference for divorced or separated individuals. It provides critical tax information concerning issues such as filing status, exemptions, alimony, qualified domestic relations orders (QDROs), individual retirement arrangements, property settlements, and legal fees and court costs. It is a good idea to discuss these issues with both your attorney and accountant, who can assist you in optimally planning the tax aspects of your divorce.
What's a prenuptial agreement?
A prenuptial agreement is a document in which you and your fiancé - not your spouse; you have to execute this document before getting married or, as one couple recently found out to one's chagrin, it's unenforceable - set down ground rules for your marriage and/or how your property would be divided in the unlikely event of its' dissolution and/or the death of either spouse. The classic example of someone who wants a prenuptial agreement is the wealthy older man embarking on a second marriage, who wants to see most of his estate go to his children by his first marriage, rather than see one third or more go to his wife. (How did not having one work out for Paul McCartney?) (See Estate Planning.) Not every prenuptial agreement will be enforced in Court. If you want your agreement to be enforceable: (1) make sure the contract looks reasonable, and (2) make sure it is reasonable. Making sure the prenuptial agreement looks reasonable requires, first, having it examined by a competent lawyer representing your fiancé. Being reasonable, means the prenuptial agreement should not be overly harsh to one's spouse - i.e., it shouldn't leave one spouse with no means of support.