Many individuals receiving their final decree of divorce hope that the court’s order ending their marriage means putting the relationship, and the entire divorce process, behind them “for good.”
However, sometimes the parties decide they are no longer happy with the orders, find them untenable, or due to an unforeseen change in circumstances, determine they need to be modified. Post-divorce modifications and actions are actually quite common, for a number of reasons. The somewhat more encouraging news, depending on your perspective, may be that in many cases these post-judgment matters can be handled by a trusted family law attorney, often with minimal disruption to an individual’s new life and daily routine.
While certainly there is no legal prohibition on pro se representation (representing yourself) in New Hampshire post-divorce matters, and some former spouses prefer to remain highly “involved” in their own cases even when working with an attorney in whom they have full confidence, New Hampshire residents who want to minimize the impact of post-divorce legal proceedings on their own day-to-day activities can to a large extent often do so.
An experienced New Hampshire family law attorney with Naro Law PLLC may be able to help you evaluate some of the options and strategies available in your unique situation.
Child custody in most states can be divided into two conceptual categories: legal custody and physical custody. Individual states set their own names for these two basic types of custody. New Hampshire refers to legal custody as “decision-making responsibility” and calls physical custody “residential responsibility,” reflecting the fact that legal custody generally covers a parent’s right to make decisions regarding their child’s upbringing and physical custody usually means having the child physically present under a parent’s roof. Legal custody is almost always shared in New Hampshire, unless one parent presents a compelling argument in court for why joint decision-making responsibility would not be in the best interest of the child. Given the amount of time most children spend outside the home at school and other activities, for legal purposes a parent’s “residential responsibility” is typically measured in nights spent in each parent’s home; usually arranging a schedule for residential responsibility is the primary focus of the Parenting Plan that is a required component of any New Hampshire divorce with children.
While post-divorce changes to decision-making responsibility are relatively unusual, modifications to the residential responsibilities set out under the original parenting plan are fairly common. Sometimes these modifications may be made by submitting a mutual agreement for the court’s approval; in the absence of such an agreement, the parent wishing to modify the existing order for parental rights and responsibilities will need to submit (or have their attorney submit) a request to the court that outlines reasons for granting the modification under RSA 451-A:11. New Hampshire family courts may grant a request for modification of parental rights and responsibilities if:
It is important to remember that the party seeking to modify the parenting schedule bears the burden of proof. In some cases, the burden is by “clear and convincing evidence” which is just a step below the highest burden of proof – “beyond a reasonable doubt.” If however the party is seeking to change something other than the routine schedule or relocation of the child, the moving party need only show that the modification is in the best interests of the child. There can be a number of factors that weigh in the court’s decision respecting a request for modification of parental rights and responsibilities in any particular case, but the best interest of the child standard will generally be applied as the guiding principle for judicial decision-making. An experienced New Hampshire family law attorney at Naro Law, PLLC may be able to help you identify evidence that may be helpful in showing the court why a proposed modification is, or is not, in your child’s best interest.
It is important that parties who wish to amend parenting orders do so through the family court. Oftentimes, parties will simply agree to modify parenting orders by changing the parenting schedule or transportation arrangements, but do not formalize the agreement with the court. When parties act under the terms of an agreement that has not been presented and approved by the court, the original parenting orders are the only legally enforceable orders. This means that if one party breaches the mutual agreement, they have no recourse in the family courts outside of asking for a modification to be approved by the court for future enforcement. There is no recourse for a party who has suffered the effects of a breach of a parenting agreement not approved by the court. That said, if the harmed party can show at a modification hearing that there was an agreement, absent good cause, it will not be a good look for the breaching party should they oppose the modification.
There are two main types of financial support that may be ordered in a New Hampshire divorce: spousal support, also known as alimony, and child support, which is calculated in relation to the parents’ incomes and the allocation of residential responsibility (both parents must contribute to the financial maintenance of any children from their marriage, but amount of time the child spends with each parent is taken into consideration in making the final determinations). Both alimony and child support orders may be modified, but the processes involved can differ somewhat between these two types.
Alimony can always be modified by agreement between the parties, and in some cases (reimbursement alimony) may only be modified by agreement. If there is an agreement to modify, the former spouses can submit a proposed change with the signatures of each party for the court’s approval; while technically speaking, the change will not be valid until the court reviews the proposed modification and issues a new support order, as a practical matter most requests to modify alimony “by agreement” receive approval.
Child support orders, on the other hand, tend to come in for closer scrutiny, as the New Hampshire court is still responsible for applying the best interest of the child standard – and even if an agreement between the parents is eventually found to be in the child’s best interest, the judge in the case cannot realistically make that determination without first conducting a careful examination of the facts presented and the reasons each parent presents for requesting the modification. In order to ensure that the judge has all of the facts needed to make an informed decision, both parents will need to submit updated financial affidavits, personal data sheets, and their own completed Child Support Guidelines Worksheet, even when submitting a request for modification of support by agreement. A New Hampshire family law attorney may be able to help you prepare the documents you will need for your modification request.
It is important that parties who wish to amend support orders do so through the family court. Oftentimes, parties will simply agree to modify support orders by either paying more or less support to the other spouse, but do not formalize the agreement with the court. When parties act under the terms of an agreement that has not been presented and approved by the court, the original support orders are the only legally enforceable orders. This means that if one party breaches the mutual agreement, they have no recourse in the family courts outside of asking for a modification to be approved by the court for future enforcement. There is no recourse for a party who has suffered the effects of a breach of a support agreement not approved by the court.
Of course, frequently one of the parties to a divorce may wish to modify a support order when the other does not. In this instance typically the ex-spouse requesting the modification will need to present compelling evidence in favor of the change. The principle by which evidence is considered “compelling” will differ somewhat, depending on whether the order to be modified is for alimony vs. child support. With respect to alimony modifications, the judge overseeing the case will generally look to maintain the equitable standard applied in the original decree. In a child support case, however, the best interest of the child standard will guide all decisions – in addition to which, the court that issued the original order for child support will generally order a modification only when one of the following circumstances applies, according to the New Hampshire Department of Health and Human Services (DHHS):
Collecting and presenting evidence sufficiently compelling to show a New Hampshire court that the requested change to an existing order for child support is in the best interest of the child can often pose numerous challenges, so you may wish to speak with an attorney to seek assistance as you prepare to submit your request to the court.
Some of the most common post-divorce filings involve enforcement actions. Orders for alimony, child support, and parenting plans (custody and visitation schedules) may all be subject to enforcement proceedings, depending on the circumstances.
New Hampshire does make provisions for the enforcement of court-ordered alimony. However, the criteria and procedure laid out under RSA 458:34 often leave former spouses recognizing their right to enforcement, but puzzled about how to request the court’s action. Generally, the answer to “how” will be a petition filed under Rule 2.31 of the Rules for Circuit Court of the State of New Hampshire – Family Division. Given the lack of familiarity most people outside the legal profession have with the Rules of Procedure, however, it may be a good idea to speak with an attorney in your area who can offer you guidance on how to proceed.
The procedures involved in requesting the court’s action to enforce an existing schedule for custody and visitation are spelled out with a bit more detail, compared to those for requesting enforcement of alimony. Speaking with an attorney may still be helpful in many of these cases, but parents preparing for their initial conversation with a family lawyer about how to enforce the court’s order for child custody can set themselves up for success and identify the critical questions to ask by reviewing the provisions for motions of contempt as well as the conditions for a “family access motion” laid out under RSA 461-A:4-a.
A parent’s noncompliance with a parenting plan may be criminal. In New Hampshire, under RSA 633:4, interference with custody is a criminal offense that can be charged as either a class B felony or a misdemeanor, depending on the circumstances. It is a class B felony if a person knowingly takes or entices a child under 18 out of the state with the intent to detain or conceal the child from a lawful parent, guardian, or agency with custodial rights. It is a misdemeanor if the person detains, entices, or conceals the child without removing them from the state but still intends to conceal them from the lawful custodian. An affirmative defense exists if the person acted in good faith to protect the child from imminent physical danger, supported by filing a nonfrivolous petition to modify custody within 72 hours. However, this defense is unavailable if the person leaves the state with the child.
An obligee (receiving) parent whose coparent is not making court-ordered child support payments on a regular basis has options for addressing the issue either by filing a motion with the court or by opening a request with New Hampshire’s DHHS. An experienced family law attorney may be able to help you decide which option is most appropriate in your situation. Similarly, a parent who is in enforcement proceedings for failure to pay may wish to have a conversation with a New Hampshire child support lawyer to discuss how he or she can resolve the issue with the court and make arrangements to modify the payment amounts, or satisfactory steps toward satisfying his or her child support obligation.
Enforcement actions of all kinds can be complicated and stressful. Naro Law PLLC provides support to former spouses who are seeking enforcement of existing orders as well as to those who are overwhelmed by their efforts to maintain their court-order obligations.
A divorce anywhere in the United States will require some form of decree or settlement (the terms used may vary) establishing how the couple’s formerly shared property (which generally includes both assets and debts) will be divided as the erstwhile spouses go their separate ways. The property division process can sometimes be streamlined to a certain extent, either by an agreement reached by the couple outside of court (in which case the divorcing spouses may attempt to reach consensus on other essential issues in order to further to achieve an uncontested divorce), or by the application of a premarital agreement that addresses the same basic issues. Otherwise, the division of marital property will be determined by the judge overseeing the case, in accordance with the laws of the state in which the couple has filed for divorce. Broadly speaking, states fall into one of two categories:
In community property states, the presumption is that both spouses have an equal interest in the marital property (these states do still exclude separate property from the distribution process). Absent a signed agreement to the contrary presented jointly by the spouses, courts in these states will generally aim to achieve what is sometimes called a “50/50” division of both debts and assets in issuing their final divorce decree.
States that follow the rule of equitable distribution, also sometimes known as equitable division, generally aim to divide marital property between the divorcing spouses in a way that is fair to both, but may not necessarily result in exactly equal shares. These states generally provide some sort of guidance to the judges overseeing divorce cases regarding important factors to be considered in making their determinations of what is fair, or “equitable,” in each case.
All spouses pursuing a divorce in New Hampshire, regardless of net worth or whether they are anticipating contested vs. uncontested divorce, will be required to file an individual Financial Affidavit, as part of the divorce filing process established by the New Hampshire Judicial Branch. Certain portions of the financial affidavit form, such as those requiring disclosures of the individual’s interest share in any businesses, investments, or other assets owned jointly with another party, may need careful review, particularly if the remaining interests are not held (exclusively) by the other spouse, but by parties external to the marriage.
Some divorces involve more complicated calculations in the division of marital property than others. High net worth couples may be especially likely to face issues related to the division of complex assets in a New Hampshire divorce, but there can be a variety of circumstances under which spouses at any income level may find themselves confronted with complicating factors and consider turning to an experienced attorney for assistance.
Division of debts in a New Hampshire divorce is generally handled within the broader scope of property division. Depending on the type of debt involved, however, allocating it fairly may pose special considerations. Credit card debt can in many cases be assigned to one spouse as his or her sole responsibility, or in some cases a court may order the parties to each pay an equal portion in order to efficiently discharge the debt. When the debt involves payments on a piece of property that is itself actively in use – such as a vehicle or the family home – the division of debt will also typically address which spouse, if either, will retain the right to use the property in question (often assuming responsibility for making the associated payments as well).
In some instances, it is not feasible for either spouse to independently discharge debts whose payments were previously supported by both partners; this scenario is very common with home mortgages, but can also arise in a variety of other situations, particularly if one spouse has a substantially higher income than the other. New Hampshire courts in these cases may order the indebted property to be sold, and the proceeds used to pay off the outstanding debt; if this possibility troubles you, you may wish consider speaking with an experienced New Hampshire divorce lawyer regarding possible alternatives to present to the court, based on the specifics of your situation.
The situation can be even more complex if portions of these complex assets were owned by one spouse prior to the marriage (creating an argument to award them in their entirety to one spouse), but major changes in value have been achieved due to contributions made during the marriage (with or without the spouse’s assistance). Any or all of these circumstances – and many others – can have a significant impact on the long-term financial outcomes of divorce for both spouses, so at Naro Law PLLC we are prepared to work with clients to help establish the clear and comprehensive accounting they will need in order to support the court in making an informed judgment regarding the equitable division of complex assets.
As much as many individuals review their final decree of divorce with a feeling of relief, anticipating that at last the proceedings are finally over, the truth is that in many cases post-divorce actions to request modifications of court orders, or to petition the court to enforce the orders it has already issued, may sometimes be necessary. If you find yourself facing orders that are no longer appropriate to changed circumstances, or orders that are not being followed, then you may wish to reach out to an experienced New Hampshire family law and divorce attorney to discuss your options. Naro Law handles a wide variety of cases, and we are happy to schedule a conversation when you fill out our contact form or give our office a call.
