According to the Surgeon General of the United States, going through divorce, especially with children of any age, is one of the most stressful things an adult can experience. Approximately one-half of all marriages now end in divorce, and about 30 to 40 percent of those undergoing divorce report a significant increase in symptoms of depression and anxiety. Sometimes, however, divorce is necessary for a variety of reasons. If you are seeking a divorce, or one is thrust upon you, trying to keep a cool head and avoiding common mistakes can payoff in the long run for you, your children and whomever you may have a relationship with in the future. Some common mistakes include: (1) Taking action that affects your rights before getting legal advice; (2) Making financial and legal decisions while under pressure or upset about the family break-up; (3) Getting advice on your divorce from family and friends; and (4) Using the court process to punish your spouse.

This first thing you need to do during this time of great stress and anxiety is to learn what the sometimes frustrating process is that you are about travel. Before you do anything abrupt, consult with an attorney to find out how the process works, and what expenses you can expect to occur over the next year to 18 months. What you do or don’t do prior to filing for divorce can affect the entire process and beyond. Avoid getting advice from family and friends. They are not in your shoes and every family situation is different. Avoid, avoid, avoid the temptation to sign anything and give it all away to get it over with. You are going to live with that decision for the rest of your life and made under severe stress and anxiety, it is almost always the wrong decision. Try to avoid the temptation to use the court system to vent anger, hurt or get back at your soon to be ex-spouse. The system is not set up to provide healing. It is set up to do what is best for the children and divide marital money, property and debt – nothing more. The best advice for what you are facing is to consult a good attorney, and then decide whether you need a lawyer to help fight for what is best for you and children, or settle the case early so everyone can move on and rebuild.

At Douglas, Leonard & Garvey, we provide sound and cost effective representation in divorce and family law matters. We are available for an initial consultation which you can set up over the phone or by filing out our contact form on our webpage.

The attorney who was sued represented the husband in a divorce where the question turned on the value of a multi-million dollar tile business owned by the husband.  The wife later uncovered evidence that the husband’s business had a value of over $15,000,000, which was double the number that he claimed it was worth during the divorce.  The wife sued her husband’s attorney claiming that he assisted in misrepresenting the value of the husband’s business.  The Appellate Court concluded the attorney and husband were not protected for purposes of the wife’s fraud action.

The court ruled that the wife had standing to sue the attorney for his conduct on behalf of the husband in essentially defrauding the wife and the court.  There has long been a crime and fraud exception to the attorney/client privilege and this case is an example of it.

If you feel you have been defrauded in a divorce case, contact an attorney who can handle that particular type of litigation.  Douglas, Leonard & Garvey has been involved in several divorce cases where the issue of nondisclosure or inadequate disclosure of assets has been involved.

The interplay between ending a marriage that may have involved domestic violence for several years and the right of a wife to sue her husband after divorce recently  came together in a case in California.  In Boblitt v. Boblitt, the California Appellate Court considered a civil lawsuit for money damages on a tort claim brought by a wife against her husband for a broken jaw and a history of physical abuse during their 24 year relationship and marriage.

The husband moved to dismiss the case saying that part of the divorce code in California included taking into account a history of domestic violence in determining support and alimony.  He said that the wife’s issues all could have been litigated in the marital case, thereby foreclosing her from filing a lawsuit after the divorce was final.

The doctrine of res judicata means that once a case is decided it is over and done with.  However, a tort action, like the one she brought, is based on the right to be free from personal injury.  The court said there was no sound basis for concluding that the marital code would have fully compensated her for the pattern of violations of those rights.  In other words, considering domestic violence and setting a level of support does not vindicate the primary right of a woman to be free from personal injury.  Therefore, the wife had a right to proceed with a civil action for money damages.

Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system.  It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.

Each year 230,000 court cases are filed in New Hampshire.

Certain types of court cases have specific time frames in which to act and those are set by the legislature.  For example, domestic violence cases and criminal cases require certain scheduling dates by law.  Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies.  For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.

Stalking cases were 1,470 in number, with the same time requirements.  9,600 landlord/tenant cases must be heard ten days from service of process.  Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.

Families are also heavily affected by the lack of a judge to help decide their disputes.  7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.

Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork.  Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.

In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”

The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts.  It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.

Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May.  Concord District Court, which is a three-judge court, is now operating with one full-time judge.  Due to the reduction in personnel a form letter went out this summer canceling all civil trials.

Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.

On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m.  As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March.  Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.

And Hillsborough County just announced:

HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES

TUESDAY AND THURSDAY AFTERNOONS

Staff shortages prompt move to focus on reduction of case backlog

CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.

Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.

After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.

As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.

Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.

Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.

These cutbacks affect all citizens who seek justice.  I will do all I can to fight for fair funding.  If you have a delay horror story, email me at info@nojustice.org

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

The vast majority of N.H. divorces are no-fault, based on irreconcilable differences.  The most often cited grounds in fault-based divorces are shown here:

	2000	2004	2008
TOTAL DIVORCES	5,970	5,106	4,913
Irreconcilable differences	5,920	5,042	4,847
TOP THREE FAULT-BASED:
Adultery	26	19	27
Extreme cruelty	7	9	9
Abandonment	2	1	10

For additional information, visit N.H. DIVISION OF VITAL RECORDS ADMINISTRATION at : http://www.sos.nh.gov/vitalrecords/

A husband in a divorce could enforce a postnuptial agreement protecting his interest in Florida real estate, Massachusetts’ highest court ruled on July 16, 2010. The parties had entered into a postnuptial agreement after 19 years of marriage in response to problems that had developed in their relationship.  Under the agreement, the wife relinquished any interest in approximately $5 million in Florida real estate owned by the husband through his family’s businesses.

When the parties later divorced, the husband argued that the postnuptial agreement was enforceable because it was negotiated by independent counsel for each party, based on full financial disclosures, and fair given that the husband was obligated to pay the wife $5 million.

The Massachusetts court rejected the notion that postnuptial or “marital” agreements are categorically unenforceable and stated:

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily  coercive. …”

“Such contracts may inhibit the dissolution of a marriage, or may protect the interests of third parties such as children from a prior relationship.  In any event, a marital agreement will always be reviewed by a judge to ensure that coercion or fraud played no part in its execution.”

New Hampshire legislation allows for premarital agreements but the legislation, when enacted decades ago, deleted a provision for post-marital agreements.  Thus, the same result here is not clear given our legislative history.

Budget cuts have left the entire court system in New Hampshire at a dangerous point that is hurting victims.  Because state budget cuts have eliminated judges and court staff, jury trials have been cancelled and cases take longer to move through the system.  For example, this means civil (non-criminal) cases by a patient harmed by medical malpractice or an accident victim seeking compensation won’t have a jury trial for more than a year.

The elimination of civil jury trials benefits insurance companies.  And it doubly impacts those people injured because they have to wait for their day in court – a year or two sometimes – and defendants, like insurance companies, are less inclined to offer reasonable settlements with no trial scheduled.  It is common for insurance companies to try and settle claims with the pressure of facing a jury trial.  Without facing a jury trial, insurance companies are in a position to make unreasonably “low” offers.

Justice is not being done when victims of an auto accident, a wrongful death, medical malpractice or employment discrimination are compelled to accept “low” settlement offers.  Insurance companies will take advantage of the cancellation of civil jury trials.

The recent divorce plans for Al & Tipper Gore after over 40 years of marriage reflect the fact that even long-term marriages can end up in divorce.

There are multiple sources of pressure in long-term marriage and one such stressor that can create later-in-life breakups are tensions related to adult children. Often one spouse gets overly involved with the adult children and worries about their happiness and economics while the other spouse may be at the stage of saying, “I’ve done my parenting I want to have my own life now. Let the kids figure it out.”

Other pressures can arise sometimes when people in their 60’s decide to do a career change or a location change. This can put stress on a long-term marriage that was used to the old relationship based on a prior job or location.

Statistically, folks are living longer and they are healthier but some couples become bored with each other after a few decades. The focus in their marriage moves from raising the children to an empty nest. When the kids leave, cracks in the long-term partnership may widen. This requires the couple to refocus on their relationship as being spouses, not just being parents.

The bottom line is that you can’t take your marriage for granted just because you’ve made it to 40 years of marriage you may if you want to make it to 60 years.

Recently, a federal circuit court faced the question of what happens when dealing with an Individual Retirement Account (IRA) for a husband who listed his four adult children from a previous marriage as sole beneficiaries. The husband died and his surviving spouse sought to collect the IRA funds instead of his four children.

The court ruled that the surviving spouse was not entitled to the IRA even though some of the funds may have originated from a pension plan in which the wife would have been protected. The court reasoned that once the husband terminated his participation in the pension plan, where wives are protected, and transferred the proceeds to an independent IRA prior to his current marriage, his widow’s interest was cut off in the IRA as compared to a named beneficiary.

The lesson from this case is that it is important to update benefit plans such as pension and IRA beneficiaries to make sure that the surviving spouse is correctly named and that children may or may not share in the benefit upon death. The time to take care of this is now to ensure beneficiary forms are changed to mirror what you really want done with those funds.