Because divorces are so emotional, many people act in ways they normally would not. There are many complexities to deal with in a divorce case. For example, a client comes in with great evidence – except that it has been obtained through telephone interception, spyware, GPS trackers, webcams and unauthorized use of social medial accounts. This type of evidence presents serious issues.

Has someone violated federal or state law? Will they need to take the Fifth Amendment if deposed? Can you use the evidence at all? Are there potential civil or criminal penalties?

These issues arise when a spouse obtains evidence through the use of electronic or telephonic interception, spyware, GPS tracking devices, webcams, wiretaps or other methods.

It is necessary to consider key questions:

• How do the federal statutes governing interception of electronic and telephonic communications impact evidence of spousal misconduct that is obtained by a party in a divorce case?

• Whether the evidence can or should be used?

• What civil and criminal implications are there with self-help surveillance evidence?

Going through a divorce will have a significant impact on you and your family. This means it is necessary to protect your interests. You should consult an experienced divorce attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

If you have determined that your marriage is just not working anymore or your spouse has destroyed the marriage through infidelity, addiction or other drastic and life changing actions, it is important to consider your next steps.

There are two general models/types of divorce: one is where you are blindsided by your spouse and you have to file to protect you and your children. This is when you consult a lawyer to protect yourself from the other party and affirmatively get the upper hand. Common tactics include protecting assets stealthily and then filing before your spouse has a chance to file first. Sometimes this is necessary when you know your spouse will try to take assets and or use the kids as a pawn on the divorce.

The other model is when the parties both know the marriage is not working and just need to end the marriage in a way that is best for each of them, and their children, if any. Nowadays, there is a good deal of professional and institutional support for parties in a divorce to use the least adversarial process necessary to protect their legal interests. A more amicable divorce allows the parties to maintain a productive relationship. This is especially important when children are involved and parents need a healthy and productive co-parenting relationship throughout their children’s lives. A highly adversarial divorce can do irreparable damage to co-parents’ relationships, not to mention the financial and emotional cost it takes on you and your spouse.

As I said though, there are cases in which the malice of one party requires the other to be protective. In such cases, an aggressive stance is warranted. But all too often, attorneys do not assess whether such a stance is necessary in a given case; they just paint every case with the same broad brush. Unfortunately, if both parties move to aggressive and adversarial positions unnecessarily, the positions can be hard to move back from. (For those cases with abuse, addiction and aggravated infidelity, you often don’t have a choice but to file and do whatever is necessary).

Attorney Carolyn Garvey and I both have years of experience in representing clients who want and are amendable to a collaborative divorce process in which the parties are able to distance their emotions and past from the process to move forward without contentious litigation. However, we are both experienced and ready to provide aggressive and swift representation to those clients who, due to no fault of their own, have been put in a position where this zealous and tough litigation style is necessary to protect their life savings and their children.

Attorney Garvey and I are ready to assist you and help determine the best approach to fit your desires and needs. Please call us at 1-800-240-1988 or fill out our online contact form.

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.

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:

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.

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.