Frequently Asked Questions
Below are some common questions we address on a regular basis. Feel free to browse and check back at your convenience for new additions. Don’t see what you’re looking for? Simply contact our office.
In New Hampshire, the divorce process begins with the filing of a Petition for Divorce. Petitions for Divorce may be found online at the New Hampshire Judicial Branch Website. Hard copies of Petitions may also be obtained by visiting your nearest Family Division location.
If you are filing a Petition for Divorce, you should be prepared to pay a filing fee at the time that you file your Petition. If children are involved in the case, the filing fee will be $252.00. If you do not have children, the filing fee will be $250.00. In certain circumstances, you may be able to successfully ask the Court to waive or reduce the requirement that you pay the filing fee. Whether you qualify to have the filing fee waived is something that you should ask about at your initial consult, as this determination is made by the Court on a case-by-case basis.
A Joint Petition for Divorce is a Petition in which you and your partner are filing for a Divorce together. You do not need to have your Divorce or Separation settled in full or even in part in order to file a Joint Petition for Divorce. At a minimum, you will need to agree that a Divorce action needs to be started in the appropriate Family Division.
An Individual Petition for Divorce is a Petition in which you, as an individual, are filing a Petition for Divorce in your local Family Division without your Partner filing the Petition with you.
The filing fees are the same, regardless of whether the Petition you file is a Joint Petition or an Individual Petition. There may be strategic reasons to file a Petition for Divorce jointly as opposed to individually. These reasons are determined on a case-by-case basis. Please contact our firm to set up a time to discuss your case and to determine the steps that best suit your needs.
If you have filed a Joint Petition for Divorce, you are not required to have the Petition served by your local law enforcement agency.
If you have filed an Individual Petition for Divorce, you may be required to have the Petition served. In the first instance, the Court will notify the other party that there is a packet for them to pick up. If the person fails to pick up their packet within ten days, they will have to be served with the packet. You may incur an additional expense in this case.
In New Hampshire, the spouse’s agreement to divorce is not required in order for a divorce to occur. A Divorce Action in this situation may take longer to resolve.
New Hampshire is a no-fault state. In New Hampshire, no-fault divorce is referred to as “irreconcilable differences which have caused the irremediable breakdown of the marriage.” If the Petition for Divorce alleges “irreconcilable differences,” the Court does not have to determine if one person or the other caused the marriage to fail.
In New Hampshire, currently there are nine (9) fault-based grounds for divorce that may still be included in the Petition for Divorce. These grounds may be included in a Petition for Divorce, even if the Petition also includes no-fault grounds.
Whether there are grounds to allege fault in the Petition and enough evidence to establish fault is determined on a case-by-case basis. We can assist you in determining the answer to this question.
There are five primary ways that the issues that arise in divorce proceedings decided:
- Informal Decision-Making involves reaching an agreement with your spouse through informal discussions.
Mediation uses a trained neutral third party to assist you and your spouse resolve issues.
- Collaborative Law involves a team approach to resolving the issues in your divorce or separation. Team members include a coach, financial planner, lawyers and their clients.
- Negotiation Between the Lawyers occurs where both you and your spouse hire attorneys that discuss resolutions on your behalf.
- Court Litigation occurs where a marital master or judge makes a decision about the issues in your case after a hearing.
The method of resolution is completely up to you and what works best for you and your family in your current circumstances. In some cases, one method is used; however in other cases, a combination of methods may be used. We can assist you in determining what method or methods of resolution work for you.
The length of the process will vary depending upon a number of factors including, but not limited to, the number and complexity of issues that need to be resolved, whether the divorce is contested or uncontested and the method of resolution. Depending upon your particular set of circumstances, your case could be resolved within a few months or it could go on well over one year.
In New Hampshire, the words “visitation” and “custody” are no longer used in a legal context to describe situations involving children. Courts, lawyers and other professionals involved in marital cases involving children use words such as, but not limited to, “parenting” and “parenting time,” to refer to situations involving children. New Hampshire’s policy is that most children do better if they have regular and frequent contact with both parents. Therefore, having a custodial and a non-custodial, or visiting, parent is against that policy.
In New Hampshire, it depends on what is going on in your family and with your case. In some instances, if you and your co-parent have an idea as to what your parenting schedule looks like, you can implement it without a Court order while you sort out the other aspects of your divorce. In other instances, if you believe that you or your child are at risk of irreparable harm because of the acts of your co-parent, a Petition for Ex Parte Relief can be filed or a request for a Temporary Hearing can be filed, at which time the Court will decide what happens with your child or children while your Divorce or Separation is being finalized. In order to determine the best approach for you and your children, please contact us for a consultation.
In many cases, parents decide what their parenting schedule is on their own or with the assistance of trained mediators or a collaborative team. A judge will later review any agreements that you have come with for approval.
There are certain cases, such as cases involving domestic violence or abuse and neglect of children, where mediation or collaborative practice is not appropriate and where a judge may not order your case into mediation. In those cases, a judge will determine the parenting plan, usually after a hearing.
The amount of child support awarded is dependent upon the number of children the couple has, as well as the incomes of the each of the parents. The mathematical calculation of the amount of child support is laid out in New Hampshire’s Child Support Guidelines.
In cases involving child support, the parties should expect the Child Support Guidelines to be followed. However, there are certain situations in which the parties may deviate, or not follow, the Child Support Guideline. These deviations are applied on a case-by-case basis. Please contact us for a consultation, where we can assist you in determining whether your case meets one of these limited circumstances.
In New Hampshire, alimony is gender neutral. Any party can ask that the Court award them alimony if it has been requested before the final hearing. The issue of alimony is case-specific and should be discussed with a divorce attorney. Please contact us for a consultation, where we can assist you in determining whether alimony may be an issue in your case.
Generally speaking, New Hampshire is an “equitable property state.” This means that if you inherit property or another asset, such as money, while you are married that asset goes into a “pot” that can be divided by the Courts upon the dissolution of a marriage or civil union. This means that if you or your partner received an inheritance, the Courts may ultimately split that between you, depending upon what your marital estate – your debts and assets – looks like. For advice as to your own specific situation, please contact us for a consult.
Generally speaking, it does not matter whose name is on the mortgage or on the deed with regards to a home that was acquired and that both spouses/partners live in. Since New Hampshire is an equitable property state, the marital home will become a part of the assets and debts that must be split equitably between spouses or partners during a separation or divorce, regardless of whose name is on the deed or mortgage.
There is a list of fifteen factors that judges utilize in determining a division of property. These factors include but are not limited to the duration of the marriage, the needs and liabilities of each of the parties, the ability of each spouse to earn money and other assets in the future and tax liabilities of the division of property. The Court will also look at other facts that it deems appropriate for purposes of division of property.
When meeting with an Attorney regarding the administration of the estate of your loved one, the more information you bring, the more productive the meeting can be. You will be asked to fill out an Estate Administration Intake Form, which can be found on our website, or by clicking here. You can fill it out ahead of time and either submit to us prior to your appointment or you may bring it with you. In the alternative, you can arrive to your appointment early and fill it out as best you can at that time.
Additionally, it would be helpful for you to bring:
- an original or copy of the death certificate
- your photo identification
- a copy or the original, if possible, of the Decedent’s Last Will & Testament and any Trust documents, if there are any
- copies of any deeds
- statements of any financial assets or liabilities
- listing of names and current contact information, including e-mail addresses, for all heirs and immediate family members
If you tend to get nervous, overwhelmed by the nature of this discussion or overcome with grief, it may be a good idea to bring with you a list of questions that you would like to have answered so that you remember to touch upon all the key points during your consultation.
The New Hampshire Circuit Court defines probate as, “the process of proving that a particular document is a valid will. The term “probate” also refers to the functions of the Circuit Court Probate Division in the appointment of an administrator and supervision over the settlement of an estate.”
When an individual (known as a “decedent”) passes away, whether with or without a Will (and/or a Trust), New Hampshire law requires that notification of the decedent’s death be provided to the Probate Division of the New Hampshire Circuit Court. Such notification is required in order to ensure that the decedent’s assets and debts are handled either in accordance with the decedent’s wishes, if they had a Will, or in accordance with New Hampshire law, in the absence of a Will.
In 2017, the Probate Division instituted the use of electronic filing which means that if you need to start a case in the Probate Division, you must do so online. This can be done on your own by either accessing the information on your own computer or at the Court. You can also meet with an attorney to assist you in this process.
A good place to start when it comes time to probate someone’s Estate is to either meet with an attorney or visit the court website. The New Hampshire Probate Division has created a number of Court forms in order to make the probate process more “user friendly.” The New Hampshire Circuit Court’s website contains a number of resources, including almost all of the forms an individual will need in order to initiate Estate proceedings. These forms can be found here.
There are different types of Estate administration that can be done in order to facilitate the handling of a decedent’s assets. However, nearly all Estates are opened by filing a Petition for Estate Administration. Within the Petition for Administration, you can then indicate that you are filing the matter as a Waiver of Full Administration, which is a more simplified version of probate. However, a Waiver of Full Administration is only available in certain circumstances such as when a spouse is the sole beneficiary named in in the decedent’s Will and the spouse has also petitioning to become as the administrator of the Estate.
Once you file the initial paperwork with the Court, you will then likely be required to complete an Inventory detailing the decedent’s assets at date of death, manage the assets and debts in the Estate, and carry out a number of different duties as the Estate administrator.
Executor, Administrator and in some States, Personal Representative all describe the role of a fiduciary, or person trusted to act in the utmost “scrupulous good faith and candor.” An Administrator of an estate is a fiduciary who has been assigned the task of overseeing the proper probate of the estate of a decedent who passed away without a Will, or intestate, whereas an Executor, or Personal Representative, (the term used in some states), is the title of a fiduciary nominated by a decedent who left a Will. Their estate is referred to as testate.
The New Hampshire Trust Docket is in essence a newly added subdivision to the Probate Division of the Circuit Court. The Trust Docket was announced by the New Hampshire Circuit Court Probate Division in December of 2013 to make New Hampshire the most trust-friendly state. Judge Cassavechia, a long standing judge who has presided in the probate court for over thirty years is now handling cases re-assigned to the Trust Docket as of January 1, 2014.
The Trust Docket was created to take on complex trust, estate and probate cases in order to ensure faster resolutions and create a more efficient Court system.
There are a number of online applications such as LastPass, Dashlane, and 1Password that help with password management, but also provide a person with one application that guards all the passwords for their digital assets. In this way, a person can more easily manage the ability to access a digital asset and then pass on the ability to access that asset.
For instance, if someone employed one of these password management applications, the person could then identify the person they want to handle their digital assets and leave instructions on how to access the main password used for the password management application chosen, in a safe manner. It is not considered safe to simply share your password with people, even a trusted agent.
There are a wide variety of legal documents that are referred to as a “Trust,” so in order to determine how a Trust works you must first define what type of Trust you are looking at. In this Blog, a Trust refers to a Living Trust also known as a Revocable Trust, Intervivos Trust or a Revocable Living Trust. There are many other different types of Trusts out there such as Irrevocable Trusts, Charitable Trusts, ILITs, QTIPs, and the list goes on. For the average person living in the middle class, a Revocable Trust is perfect for estate planning purposes.
The most common reason for the average person to create a Trust is to avoid the Probate Court process. If someone passes with only a Will, then their assets and estate must be processed through the Probate Court. However, if a person incorporates a Revocable Trust into their estate plan, then they will have given themselves the ability to appoint their Successor Trustee to their Trust, which is very similar to appointing an Executor/Executrix of their Will, but unlike dying with only a Will, the Trustee is allowed to act immediately. This avoids the delay associated with waiting for the Court’s approval, which is the requirement when someone dies with only a Will.
In order for a Trust to actually work, the person creating the Trust, must get the title of their assets into the Trust. The process of putting assets into a Trust is referred to as “funding the Trust,” and is a necessary step in order for the Trust to truly accomplish its goal. In order for the Trust document to effectively help to avoid the necessity of probate, the person who created the Trust, referred to as either the Grantor or the Settlor, must take the time to transfer any assets to the Trust. I often explain to Clients that they should consider their Trust documents as a metaphorical box for all of their worldly possessions and despite the repeated warning to never do so, in this case it is best to put all of your eggs in one basket. Transferring an asset to your Trust is usually a simple retitling process changing the asset from the person’s name individually to the person’s name as Trustee of the Trust.
Once a person’s assets are transferred from themselves individually into their Trust then the Trust is free to do the job of probate avoidance. When the person who created the Trust passes away, the Successor Trustee is free to jump in and take on the task of administering that person’s estate immediately without the delay associated with the often lengthy and expensive Court process. The assets owned by the person through the Trust are not in their name as an individual and therefore are not subject to the probate process. A protective measure, called a Pour Over Will is often put in place in case the Grantor forgets to transfer all of their assets into the Trust during their lifetime. The Pour Over Will is designed to “catch” anything that was inadvertently left out of the Trust during the person’s lifetime.
The short answer is: Yes.
A Living Will is a document that only becomes relevant once a person is determined to be terminally ill by two physicians. It allows you to make the choice regarding whether you want artificial life sustaining procedures to be used. You are also able to decide whether or not you want nutrition or hydration to be administered. This document can be used as a back up. Should the person you have appointed as your Power of Attorney for Healthcare be capable of making decisions for you that is the first choice. The Living Will is there to provide that your wishes are known.
The Durable Power of Attorney for Healthcare covers the types of situations in which your Living Will may apply, but is not limited to such circumstances. An example, is if Thelma was in surgery and due to some unforeseen complication the doctor needed to pick between whether she would lose her hearing or her eyesight. The Durable Power of Attorney for Healthcare would presumably be someone Thelma was close with and trusted to make such decisions for her; her sister Louise. Louise knew that Thelma’s deepest passion in life was her amateur photography. Louise could state that Thelma would want to keep her eyesight, rather than a doctor who did not know of Thelma’s love of photography.
It is important to plan for all contingencies. What if in the above example, Louise had recently driven off a cliff and Thelma was on life support? Rather than a long and drawn out legal battle, a Living Will would indicate to the doctors what Thelma wished. It is a gift to your loved ones to make such wishes known before they become an issue.
If you are going through a divorce or custody dispute, than you may be aware that you will likely be either receiving or paying child support. In New Hampshire, child support is calculated based off of a formula, which the state has created for the court system to use. This formula has been determined based on the New Hampshire’s Child Support Guidelines law, RSA 458-C. Judges have very limited discretion when it comes to their ability to deviate from these set guidelines.
You can find what is called the child support calculator on the New Hampshire Department of Health and Human Services website. What the calculator does is take the income of the obligor (the parent paying support) and the income of the obligee (the parent receiving support) and plug it into the formula. The child support calculator also looks at a few other financial obligations for example: childcare and the number of children requiring support. The calculator found on the state’s website is there to provide an estimate of ones child support obligation based on the parties financial situation.
Medicaid is an assistance program through the federal government and local state governments. Medicaid provides assistance to low income families and individuals who are in need of medical and long-term care. Individuals either pay small co-pays or nothing at all depending on the level of assistance.
Medicaid has very strict eligibility requirements. It is beneficial to sit down and consult with an attorney when you or a family member is in the process of qualify for Medicaid. There are federal and state guidelines which have been set forth to determine who qualifies for Medicaid. You can learn more about New Hampshire Medicaid on the Department of Health and Human Services’ website.
Medicare is an insurance program attached to Social Security. Medicare is available to all individuals who are U.S. citizens 65 years of age or older, as well as some individuals with disabilities. Unlike Medicaid, Medicare is available regardless of an individual’s income. The amount of Medicare assistance received by the covered party depends on what that person has paid into the Medicare system.
Additionally, Medicare is a federal program, not a state program, and is run by the Centers of Medicare & Medicaid Services. Medicare does not cover the entirety of a person’s medical expenses but, a portion of the expenses through deductibles. To find more information on Medicare in New Hampshire, go to the Department of Health and Human Services’ website.
Whether you’re there on behalf of yourself or another, there are a few basic things that you can bring with you to help your Attorney determine whether or not the applicant may qualify for Medicaid.
If accessible, it would be a significant head start if you could bring verification of the date and place of birth of both the applicant and their spouse, (if there is one). This could be a birth certificate or passport or voter registration card. Additionally, it would be helpful to bring identification for both the applicant and spouse, as well as proof of their marital status, like a marriage certificate. Other helpful documents are the social security cards of both spouses as well as any deed and tax bills for any property that is owned, including timeshares.
The rules and documents required to accompany a Medicaid application are complicated and ever-changing, so it is important for the Attorney to get a good idea about the financial picture for both the applicant and spouse. Income tax returns, annuity contracts, health insurance information, life insurance policies, long term care policies, information on prepaid funerals and proof of Veteran’s benefits will all be very helpful documents in piecing together the financial picture of the applicant.
Perhaps the most important information you could provide however, is evidence of the applicant and spouse’s income and assets. This includes evidence of income, such as pay stubs (before deductions are taken out), social security statements, bank statements, statements for CDs, savings accounts, investment accounts, IRAs, retirement accounts and the like. Your Attorney will be trying to determine the current status in terms of eligibility and moving forward will determine the steps needed to be ready to apply, if the current situation requires adjustment. *There are other documents that are required and may be acceptable in lieu of the ones listed here, but please speak with an Attorney to determine which items apply to your circumstances.
Medicaid is the government-run health coverage that covers the cost of nursing homes and other long-term care for those who cannot afford to pay for it privately. Because no one “plans” on going into a nursing home or needing long-term care—there is no true way to Medicaid plan in advance. Rather, here are three helpful tips on what you can do and what to be aware of as you and your loved ones age:
- Have a Good Estate Plan in Place
- Be Careful about Gifts
- Consult with an Attorney that Knows the Rules
If you or someone you know needs an estate plan or is at the point of needing to apply for Medicaid in order to cover your long-term care or nursing home costs—call us to set up an appointment with one of our attorneys here in Nashua, NH at 603-943-5647.