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New Hampshire Articles
New Hampshire Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in New Hampshire, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
In order to file for a divorce, the parties must: I. Both be residents of the state and the filing spouse must be a resident for a least 1 year prior to filing or; the grounds must have occurred in the state and one of the spouses must be a resident for at least 1 year prior to filing. The divorce shall be filed in the county in which either spouse resides. (New Hampshire Statutes - Chapters: 458:5, 458:6, 458:9)
Grounds for Filing:The Petition for Divorce must declare the appropriate New Hampshire grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
A divorce may be granted on the following grounds:
Irreconcilable differences which have caused the irremediable breakdown of the marriage.
I. Impotency of either party. II. Adultery of either party. III. Extreme cruelty of either party to the other. IV. Conviction of either party, in any State or Federal District, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. V. When either party has so treated the other as seriously to injure health or endanger reason. VI. When either party has been absent 2 years together, and has not been heard of. VII. When either party is an habitual drunkard, and has been such for 2 years together. VIII. When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. IX. When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other. (New Hampshire Statutes - Chapters: 458:7, 458:26)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:The State of New Hampshire, Superior Court in and for __________. This is the New Hampshire court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to New Hampshire law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Personal Data Sheet, Financial Affidavit, and Notice of Hearing.
Court Clerk's Title:County Clerk's Office of the Superior Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since New Hampshire is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
When a dissolution of a marriage is decreed, the court may order an equitable division of property between the parties. The court shall presume that an equal division is an equitable distribution of property, unless the court decides that an equal division would not be appropriate or equitable after considering one or more of the following factors: (a) The duration of the marriage. (b) The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party. (c) The opportunity of each party for future acquisition of capital assets and income. (d) The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party. (e) The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects. (f) The actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties. (g) Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home. (h) Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party's educational or personal career opportunities for the benefit of the other's career or for the benefit of the parties' marriage or children. (i) The expectation of pension or retirement rights acquired prior to or during the marriage. (j) The tax consequences for each party. (k) The value of property that is allocated by a valid prenuptial contract made in good faith by the parties. (l) The fault of either party a if said fault caused the breakdown of the marriage and: (m) The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage. (n) The value of any property acquired by gift, devise, or descent. (o) Any other factor that the court deems relevant. (New Hampshire Statutes - Chapters: 458:16)
Restoration or Name Change:In any divorce proceeding, except an action for legal separation, the court may, when a decree of divorce or nullity is made, restore a former name of the spouse, regardless of whether a request therefor had been included in the petition. (New Hampshire Statutes - Chapters: 458:24)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In determining the amount of alimony, the court shall consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party and the Federal Tax consequences of the order.
In determining amount and sources of income, the court shall not consider a minor child's social security benefit payments or a second or subsequent spouse's income. The court may consider Veterans' disability benefits collected by either or both parties to the extent permitted by Federal law.
The court may also consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates and the noneconomic contribution of each of the parties to the family unit.
In any proceeding for modification of an existing alimony order, the earned or unearned income and social security disability payments of a spouse of the obligor party shall not be considered a source of income to that obligor party for the purpose of modification, unless the obligor party resigns from or refuses employment or is voluntarily unemployed or underemployed, in which case the income of a subsequent spouse may be imputed to the obligor party only to the extent that such obligor party could have earned income in his or her usual employment. In such actions, the court may consider the Veteran's disability benefits of a spouse of the obligor party to the extent permitted by Federal law. (New Hampshire Statutes - Chapters: 458:19)
Counseling or Mediation Requirements:Whenever, before or during a hearing but before a final decree, the court shall determine that there is a likelihood for rehabilitation of the marriage relationship, the court shall refer the parties to an appropriate counseling agency within its jurisdiction, which referral may be made or as the parties request, with the approval of the court. If the court determines that there is a reasonable possibility of reconciliation, the court shall continue the proceedings and require that both parties submit to marriage counseling. (New Hampshire Statutes - Chapters: 458:6, 458:7)
Child Custody:When minor children are involved in a divorce, the New Hampshire courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors: (a) The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance. (b) The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment. (c) The child's developmental needs and the ability of each parent to meet them, both in the present and in the future. (d) The quality of the child's adjustment to the child's school and community and the potential effect of any change. (e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent. (f) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact. (g) The support of each parent for the child's relationship with the other parent. (h) The relationship of the child with any other person who may significantly affect the child. (i) The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children. (j) Any evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent. (k) If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration. (l) Any other additional factors the court deems relevant. (New Hampshire Statutes - Chapters: 458:17)
Child Support:New Hampshire child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
There shall be a rebuttable presumption in any proceeding for the award of child support that the amount of the award which would result from the application of guidelines. The court will also consider deviating from these guidelines after examining the following factors: (a) Ongoing extraordinary medical, dental or education expenses, including expenses related to the special needs of a child, incurred on behalf of the involved children; (b) Significantly high or low income of the obligee or obligor; (c) The economic consequences of the presence of stepparents, step-children or natural or adopted children; (d) Reasonable expenses incurred by the obligor parent in exercising parental rights and responsibilities, provided that the reasonable expenses incurred by the obligee parent for the minor children can be met regardless of such adjustment; (e) The economic consequences to either party of the disposition of a marital home made for the benefit of the child; (f) The opportunity to optimize both parties' after-tax income by taking into account Federal Tax consequences of an order of support; (g) State tax obligations; (h) Parenting schedule; (i) The economic consequences to either party of providing for the voluntary or court-ordered postsecondary educational expenses of a natural or adopted child; (j) Other special circumstances found by the court to avoid an unreasonably low or confiscatory support order, taking all relevant circumstances into consideration. (New Hampshire Statutes - Chapters: 458:17, 458:18)
Copyright Notice:The above synopsis of New Hampshire divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
The documents required to complete a New Hampshire divorce vary from case to case. The Petition For Divorce and Divorce Decree are standard and always required. Additional documents that may be requested deal with marital assets, finances, personal statistics and a notice of hearing if the case is to be heard by the court.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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