Friday, December 7th, 2012
High Court Defines Allowable Business Expenses for Self-Employed in Determining Child Support Income
By C. Kevin Leonard – New Hampshire Family Law Attorney
The state Supreme Court yesterday ruled that a judge can order an unmarried couple to change their baby’s last name to that of the father.
According to the court decision in Re Name Change of Alexander Goudreau, the parents had a relationship when both were in high school. The parties ended their relationship when the mother became pregnant. The father (Andrew Lemieux) wanted the mother (Veronica Goudreau) to give up the child for adoption and not provide emotional or financial support. The mother gave birth to a boy and named him with her last name: Alexander Bailey Goudreau.
When the child was almost fourteen months old, a petition was filed to change the child’s last name from the mother’s to the father’s last name. After a hearing, the marital court ordered that the child’s full name be changed to include both last names: Alexander Goudreau Lemieux.
Fighting for your rights in New Hampshire family law matters takes an experienced lawyer. If you have questions regarding family law, please call Douglas, Leonard & Garvey at 1-800-240-1988 or fill out on online contact form.
So, you’ve been divorced for several years and now your ex-spouse asks you to help contribute to college. What is your obligation? Recently, the New Hampshire Supreme Court revisited this issue after its last opinion in 2006 addressing a divorcing parent’s obligation to pay or contribute toward college costs. In the latest New Hampshire Supreme Court decision, In the Matter of Poulin and Poulin, the Supreme Court decided that the parties’ 1996 divorce decree obligated the husband to contribute to his children’s college expenses. The parties Divorce Decree said that each parent would contribute to their college expenses in a “specific proportion,” “to the extent each party if financially able,” after deducting financial aid and the child’s own savings.
This was an important ruling for the divorced parents of fast approaching college age kids that should cause them to pull out their Divorce Decree and review the language of their Decree because that will help determine their obligation. The issue has been confusing for years because prior to 2004, the divorce court had broad powers to order divorced parents to contribute to their children’s college expense under state statute. After that Supreme Court declared that law unconstitutional because it was unfair to people who were not divorced, the Legislature amended the law to say that “no child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the competition of high school.”
Thus, this development matters to anyone who got divorced prior to 2004 who had minor children at the time, and has language about college in the decree. The Poulin decision restates and clarifies that if the parties have a pre-2004 court order that requires them to contribute some money towards college, even if the amount is the precise or specific amount is not determined at the time the divorce decree is issued by the court, the trial court can now determine that amount and enforce the obligation to pay.
If after pulling your divorce decree, you are uncertain what the language means or how a court will interpret it, call Attorney Carolyn Garvey or Attorney Stephen A. Duggan who have over 35 years of combined legal experience to put to work for you and know the ins and outs of all aspect of divorce law. Call 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.
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.
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.