Family Law Areas Archive - Cohen & Winters, PLLC

Other Family Related Issues

Divorce, parenting issues and property distribution are not the only reasons you may need the services of my firm’s family law expertise. In some instances parents, grandparents, aunts, uncles, friends or other concerned individuals find themselves in a situation where they need legal services to assist them with visitation, with a guardianship of loved one or because they or their loved ones have been thrust into the Child Protection (abuse and neglect) system.

I have been involved in situations where the Division of Children, Youth and Family Services receives a report, whether true or false, concerning the alleged physical, emotional or sexual abuse of a child. Once the Division receives a report, it is has a duty to immediately investigate such allegations. They also have significant authority to remove a child from a home based solely on statements made by the child, teachers and even anonymous reporters, if the child’s continued placement in that environment could be harmful to the child’s physical or emotional health. While their goal is to protect children, they sometimes act so quickly that no one has an opportunity to respond to the allegations until the child has already been ripped out of the home. Once this occurs you find yourself immersed in our Abuse and Neglect system which is now handled by our family court system. Once a child is removed, the Division of Children Youth and Family Services are often given sole discretion in matters relating to the placement of the child and who may see the child.

This is a very traumatic event and the Division will often times attempt to question the alleged abuser in an effort to support their theory. They will claim that your cooperation with them will result in the quick return of your child, but this is rarely the case. Unfortunately, there have been instances where the Division has exaggerated the truth or outright lied to accomplish their agenda. Once they have taken action, they will often times use their team of experts to support their initial action even if it is wrong.

You should not attempt to work with the Division without the assistance of competent and experienced legal counsel because your parental rights and legal rights are at stake. Often times the Division will contact the local police authorities regarding alleged wrong doing and a parent will not only be battling the Division to regain custody of their children but will also be faced with criminal prosecution for the alleged acts.

In some instances, a family member will have issues concerning the care that a child (or mentally or physically challenged adult) is receiving by a parent or parents and someone in the family decides that a guardianship over such a person would be appropriate. Our probate court and family court system allows certain individuals to petition for guardianship over a minor if the court finds that it would be in the minor’s best interests. This can be done with the parents’ consent or even if the parents contest the guardianship.

In today’s society there are many instances where there are children who are in need of loving, caring and nurturing parents. Adoptions are an area of my practice that I find rewarding because in the end a child is afforded an opportunity to have the family every child deserves and needs.

Step-parents play an important and necessary role in many children’s lives and in some instances, a child’s “biological” parent may not have contact with the child so a step-parent is afforded the opportunity to adopt his or her step-child(ren). This of course creates a legal relationship between the step-parent and child and once the adoption occurs the step-parent is afforded the same rights and responsibilities as a natural parent. There are also situations where caring and loving individuals find themselves with the opportunity to adopt children with whom they have no family relation.

Family law requires knowledge of several areas of law, to include but not limited to, real estate, probate, criminal, bankruptcy, contract and business law. My firm can accommodate any of your family law needs and I will provide you with the highest level of legal representation no matter how large or small your legal issues may be. Contact Us Today for a Free Initial Consultation!

“When family matters you need to call”
Cohen & Winters, PLLC
102 Bay Street, Suite #2 Manchester NH 03104
For a Free Initial Consultation Call – 603-626-8080
e-mail: info@cohenwinters.com

Unmarried Couples

Since our legal system has historically favored the marital union, and encouraged people to get married (by providing tax breaks, automatic inheritance rights, and a host of other incentives to married persons) persons who live together and have children are not afforded the same level of access to the divorce process as married couples. We refer to those matters as unwed custody cases, and such persons clearly have the same rights to traditional determination of parenting rights and responsibilities and child support that married persons enjoy.

However, much to their surprise they find that the court cannot issue orders concerning distribution of real estate, household furnishings, personal property, etc., nor can it make orders concerning responsibility for debt between unmarried persons. Alimony is not available to unwed couples in New Hampshire. This is indeed unfortunate, since many people live in a marriage-like union for years or decades without formalizing that union. If unwed couples cannot resolve their disputes on these issues, they are required to file separate legal actions against their former partner to resolve any such issue that may exist. While frustrating, that too is the state of the law in this State and our expert attorneys can analyze your financial situation, and advise you as to the most effective and affordable resolution for such situations.

Qualified Domestic Relations Orders (QDRO)

A QDRO is used to divide complicated marital assets, including retirement plans and pension plans. Because these types of plans are unique and complex, dividing them takes time. Typically, a QDRO takes several months, if not more, before it will go into full force and effect. Additionally, if the settlement agreement is vague, or does not adhere to each plan’s unique requirements, the QDRO process can take even longer. Unfortunately, we are not in control of how long the process takes since we are only one component of the process. It is a process that includes several steps, most of which we are not in control of. To assist with the understanding of the steps involved in the process, please note as follows:

There needs to be a valid Final Decree of Divorce,
We need any and all necessary information/documentation from both parties;
A draft QDRO will need to be prepared;
The draft will need to be approved by the opposing party/counsel;
Once everyone agrees with the terms of the draft QDRO then we will need the Plan Administrator’s approval;
There may need to be additional revisions made; after which everyone will need to execute the final QDRO;
It is then filed with the Court for approval;
After which a Certified Copy is provided to the Plan administrator for processing and final distribution.

Please note that throughout this process you will be copied on all correspondence so that you know which step we are at during the process. Although you will be kept informed, we have no control over how long all of the other parties/entities involved will take to do their part. However, rest assured that we have comprehensive follow-up procedures in place to ensure that your matter is given the attention it deserves.

It is important to be aware of the realities of the QDRO process. QDROs are very technical documents, and each one is unique to the plan being divided. As an experienced divorce attorney, I have helped many clients plan their financial affairs during the lengthy QDRO process.

Property Rights

Attorney Browne has successfully helped clients understand who has rights over property in accordance with New Hampshire law.

In addition to dissolving the marital bond and making orders concerning placement of children, courts are also required to identify and distribute the divorcing parties’ interests in the assets they have accumulated throughout their marriage.

Who Has Rights to The Property?

Property acquired by either spouse prior to the marriage is considered non-marital property. Any property acquired after and or during the marriage by either spouse is considered property of the marriage or marital property.

Generally speaking, all property acquired by either spouse during a marriage is subject to the court’s power to divide equitably, irrespective of source, contribution or title. The fact that one spouse worked one or two jobs during a marriage, while the other remained home to raise children, does not work against the homemaker spouse in property distribution.

Property I Owned Before the Marriage

Assets earned prior to a marriage are generally not subject to division (unless the parties have routinely used such assets, like in marital home or a trust fund) which use can sometimes alter the nature of a premarital asset. However, courts will generally make a disproportionate award of the remaining assets, after off setting to the spouse any such pre-owned asset.
The equitable distribution theory by definition means that the courts will attempt to divide property fairly. They begin with the premise that an equal distribution is equitable, particularly in a long term marriage. In a short term marriage (one or two years without children) the courts find it easier to return to each party the property they brought into the marriage and will often do so absent other considerations.

Who Is Responsible for Any Debt?

Of course with the good comes the bad, and someone must pay for the mortgages and other encumbrances that may be associated with a particular asset. There is no mathematical formula for doing so, and the courts will often look to each party’s earning capabilities, income, education, and child support obligations to try to fashion a fair order on debt responsibility. Courts cannot alter the relationships which parties created with their creditors prior to divorce, and in some fashion one party or the other must pay such bills. It is an unfortunate reality within the divorce process that many persons (not unlike our federal government) routinely overextend themselves through secured and unsecured credit during a marriage and many find themselves forced to pursue bankruptcy relief during or after a divorce. Our practice is structured so that you have experts available at all phases of the process. Unlike many “specialists”, we have significant experience in federal bankruptcy law, and in criminal law, which are often involved in the emotional turmoil of a divorce. We are a “one stop shop” and can competently address almost all issues and client needs in a divorce situation. Simply Contact Us via email contact form or by phone.

Alimony

The Attorneys at the Law Office of Shaunna Browne, PLLC are ready and willing to provide you with the legal advice you need when you have questions regarding your right to seek and/or your obligation to pay alimony. In New Hampshire, alimony, also called spousal support, may be awarded by a judge or agreed upon, under certain circumstances.

Who Receives Alimony Payments?

New Hampshire allows a divorcing spouse to request and receive alimony on both a temporary and final basis. There are several factors that the Court must take into consideration before issuing an alimony award. These include, but are not limited to, the length of the marriage (with a long term marriage being treated differently than the short term marriage), ages and educational levels of the parties, their current incomes and historical earning capacities (as it impacts their ability to acquire assets in the future), fault based misconduct on the part of one party, and the need of the recipient to obtain additional financial assistance through an alimony award, along with the ability of the other spouse to pay any such award.

What is Alimony?

Alimony is defined as payments made to or for the benefit of a spouse or former spouse. The purpose of alimony is to allow both parties to maintain a reasonable standard of living. The court may only award alimony to a spouse if they cannot provide for his or her own reasonable needs or be self-supporting, taking into account the lifestyle of the couple during the marriage. It also takes into consideration the extent to which each person must adjust their standards of living due to the divorce. In addition, the spouse who is to pay alimony must similarly be able to meet his or her own reasonable needs while meeting those necessary needs of the party in need.

The amount of alimony is either the payee’s reasonable need (which is an amount to be determined by the Court or through mediation) OR thirty percent (30%) of the difference between the parties’ gross incomes at the time the court issues the order, whichever is less. Gross income is affected by child support, alimony payments to another spouse, and health insurance premiums. Ultimately, the court can adjust any alimony award as justice may require.

The maximum duration of alimony is half the length of the marriage. An alimony award can end sooner depending on a variety of circumstances, but will automatically cease if the spouse receiving support remarries or the spouse paying support reaches the age of retirement (as defined by the office of Social Security) and retires.

The court can award temporary alimony prior to the finalization of a divorce. Temporary alimony does not count toward a final alimony award and it is not subject to the formula or duration limits placed on a final alimony award.

The attorneys at the Law Office of Shaunna L. Browne, PLLC, stand ready and able to provide you with the advice and guidance you need to address any and all issues which arise in any divorce matter, including the issue of alimony.

Child Support

Child support is fixed by law in New Hampshire, and is for the most part, a mathematical calculation, in which the incomes of both spouses are added together and then after offsetting certain standardized deductions, to include but not limited to mandatory pension, state income taxes, daycare and health insurance expenses, the resulting figure is applied to a table (updated annually for cost of living increases) and the child support figure is established.

The total child support figure varies based on the number of children receiving support and the parents’ combined net income level.

Usually the non-residential parent then pays a percentage of the child support as reflected by his or her income over both parent’s combined income. While there are exceptions to the application of this rule, it is, for the most part, applied rather rigidly and mechanically by our trial courts, and is in fact, required by state and federal law. However, if one parent earns significantly more than the other parent, then even a parent that has more parenting time can be required to pay child support to the lesser earning parent.

It should also be noted that a shared parenting schedule in and of itself is not a reason for the Court to deviate from the child support guidelines. There needs to be other factors considered in order for a deviation to be approved by the Court. Some of those factors include, but are not limited to, payment of other expenses for the children.

I can analyze your financial situation and seek, to the extent possible, to maximize your position on the issue of child support consistent with the requirements of our current law and system.

Guardian Ad Litems

Attorney Shaunna Browne has helped clients with guardian ad litem (GAL) representation for children in Manchester NH.

What Is A Guardian Ad Litem?

If the parenting schedule, or the terms, extent or nature of parental rights and responsibilities, are in any way disputed by the parties, the Court may appoint a Guardian Ad Litem to represent the interests of the children.

This person may or may not be an attorney, but acts as an advocate for the best interests of the children (which may not be what the children expressly want). The Guardian is a full party to a divorce matter, and gathers information and submits a recommendation to the Court as to how contested parenting issues should be resolved by the Court, since our system does not generally permit children to be dragged into family court to testify about their parents, in their presence. The Guardian is not a judge, and the Guardian’s recommendation is not binding on the Court. However, the Guardian is clearly an important player in the divorce process. The involvement of a Guardian Ad Litem will obviously serve to increase one’s legal fees and may increase the length of time it might take for a case to be resolved.

Responsibilities of a Guardian Ad Litem

A Guardian Ad Litem’s function is to investigate the competing parenting claims of the parties (which are often self-serving and sometimes less than accurate) by interviewing the parties themselves, and sometimes conducting a home visit to view each party’s living arrangements, interviewing witnesses offered by each party (usually three to five people), and in certain cases interviewing teachers, counselors, religious figures, and the children themselves when they are age appropriate and old enough to understand and have the ability to provide useful information to assist the Guardian’s recommendation.

Often the issues a parent and/or children are presented with during a parenting dispute will require professional counseling and other resources to help them through this emotionally charged situation. Due to my experience in dealing with professionals who are highly trained to help individuals in this type of situation, I can often offer suggestions and referrals for additional support and services, if necessary during this difficult time.

Grandparent Visitation

Parental rights proceedings, whether resulting from a divorce or an unwed parenting dispute, can affect the grandparents’ ability to visit with their grandchildren. In some cases, grandparents who once enjoyed frequent and positive contact with their grandchildren are deprived of it. In other situations, ongoing contact between the grandparents and the children is not in the children’s best interests and should be limited.

In New Hampshire, grandparents may petition the court for reasonable visitation rights of their minor grandchildren provided that there is an absence of a nuclear family. The section of the Parental Rights and Responsibilities statute, titled “Grandparent’s Visitation Rights,” lists eight factors the court must consider when it determines whether or not grandparent visitation rights would be appropriate. The factors that carry the most weight are whether the visitation would be in the best interests of the children and whether the visitation would interfere with either parent’s relationship with or authority over his or her children. Some other factors include the nature of the relationship between the grandparent and the children, the nature of the relationship between the grandparents and the parent, and the preferences of the children. In these cases, the court may appoint a guardian ad litem to investigate whether grandparent visitation would be in the best interest of the child.

Petitions for grandparent visitation are heard by the Family Division courts and they are typically filed during an on-going parental rights proceeding, however, a grandparent can file a petition at any time. If the court determines that grandparent visitation rights should be granted, it will grant reasonable visitation rights that do not infringe on the parent’s ability to raise his or her children.

Grandparents have often played a very influential role in the lives of their grandchildren, either by providing supplemental care while the parents are working or at times being the primary caregiver because neither parent is available to care for the children. When a family is disrupted due to a divorce proceeding or parental rights dispute, the ability of a grandparent to continue to be involved with their grandchildren can be greatly impacted.

The State of New Hampshire has recognized the importance of a grandparents’ role in minor children’s lives by allowing them to seek their own “visitation” when they would otherwise not be able to see the children due to restrictive parental rights and responsibilities orders or the unavailable of one of the parents.

My firm is very aware of the role that grandparents play in their children’s and grandchildren’s lives and are prepared to assist you in protecting your ability to continue to have a positive and consistent relationship with your grandchildren. Please contact us for your initial telephone consultation which is free of charge to determine your rights under the current laws of the State of New Hampshire.

Prenuptial and/or Postnuptial Agreements

Congratulations on your pending nuptials! We are just as excited as you are about your pending marriage, however, we are also here to provide you with the insight and advice you need to protect not only your interests, but those of your current and future family.

The thought of divorce is the furthest thing from most people’s minds when they are preparing for the big day and rightfully so. However, much like how one may obtain medical insurance despite not anticipating an injury, it is prudent to have a plan in place in the event of a breakdown of your marital relationship. One way to decrease the likelihood and costs of litigation in the event of a divorce is to enter into a Prenuptial Agreement.

A Prenuptial Agreement is a legal contract between two parties regarding marital rights and responsibilities. The individuals essentially accept the terms of the agreement in exchange for entering into marriage. It is sometimes called a “Premarital Agreement.” A Post-Nuptial Agreement is the same type of contract, only the parties do not execute it until after they are married.

These contracts are used to specify what will happen in the event of divorce or the death of one party. The marital rights and responsibilities outlined within a Prenuptial Agreement can include the right to real property, retirement accounts, and more. Prenuptial Agreements cannot, however, dictate parenting issues or child support, because in the State of New Hampshire the best interests of the child will always take precedent. Prenuptial agreements must be in writing, entered into voluntarily, include a full disclosure of assets, and cannot be “excessively” unfair.

Prenuptial Agreements

A Premarital Agreement must generally be executed at least thirty (30) days in advance of the date of the marriage, while a Post-Nuptial Agreement does not have a specified time limit.

The State of New Hampshire does recognize and abide by the terms of a Prenuptial Agreement, provided the agreement is valid and entered into in good faith. Prenuptial Agreements must be comprehensive, detailed, disclose the assets of the parties, and be executed and notarized by both parties and their witnesses.

A Court can rule that a Prenuptial Agreement is invalid if any of the following existed at the time the Agreement was signed:

Undue Duress or Heavy Influence: In order to avoid a claim that a party signed under duress, it is important to execute the Agreement well in advance of the wedding. Both parties must be given ample time and opportunity to read and understand the Agreement. Both parties should also be given the time to review the Agreement with an attorney of their own choosing.

Fraud: Misleading a party or lying about material information, such as assets or income, can cause the Agreement to be held invalid.

The agreement is unconscionable or unfair: These definitions can vary from case to case based upon the facts and circumstances.

Postnuptial Agreements

A Postnuptial Agreement covers the same topic areas of a Prenuptial Agreement. The only difference is that it is executed after the parties are already married.

Postnuptial Agreements are held to be valid in the State of New Hampshire. At minimum, they must survive the same level of scrutiny that a Prenuptial Agreement must survive. As such, the factors listed above are also used to determine whether a Postnuptial Agreement is invalid.

Each party is required to be represented by individual counsel when entering into a pre- or post-marital agreement for it to be valid. This is to eliminate any claim by one of the party’s that they did not understand or otherwise comprehend the terms of the agreement. Representation of both parties by an attorney is also needed to ensure that each party is fully informed of their rights under the laws of the State of New Hampshire prior to entering into an agreement which may limit or eliminate those rights. This is extremely important, since failure of one party to have independent legal representation can and will allow that party to challenge the agreement if there is a divorce.

Whether you would like to present your soon to be spouse or current spouse with a Pre- or Postnuptial Agreement or if you have been presented with a document and asked to “sign here”, the Law Office of Shaunna L. Browne, PLLC is ready and able to fully represent your interests with the highest level of professionalism, understanding and courtesy. Regardless of your situation, our office is ready and able to assist you with all of your family law needs, prior to, during and after your marriage.

Unbundled Services

What Is Limited Representation (Unbundled Services)?

The New Hampshire Supreme Court has amended certain rules governing attorney representation and duties in divorce cases. Attorneys are now allowed to enter agreements with clients for limited representation (also known as unbundled services) in certain family law matters.

Prior to the rule change, attorneys could not provide piecemeal services to clients, and were required to either provide full representation or none at all.

We are now allowed to provided limited consultations, prepare documents for clients to file on their own, to review settlement proposals from opposing parties and/or their lawyers, meeting with clients prior to mediation or other court appearances, advise them as to topics to discuss during their mediation sessions, review proposed mediated agreements, etc.

This allows clients to have representation when needed and to allow them to have more control over how and when they utilize the services of an attorney. While I would encourage all individuals to obtain full legal representation when faced with a legal issue, my firm’s ability to also provided limited representation has allowed us to assist more people on an as needed basis.

Pros and Cons of Limited Representation (Unbundled Services)

A single misstep in Court by reacting angrily to emotional statements and allegations, failing to be prepared for attacks by opposing counsel and/or making an innocent error while addressing the Court during a hearing can have devastating effects upon a litigant and their position before the Court for the foreseeable future, which will most likely far exceed the costs associated with retaining competent legal representation.

IMPORTANT NOTICE TO ALL CLIENTS ATTEMPTING TO MEDIATE AGREEMENTS WITHOUT REPRESNTATION:

All mediated agreements, i.e. Temporary Decree or Final Decree, Temporary or Final Parenting Decree, Uniform Support Orders or agreements of any kind executed by you and submitted to the Court will become a Court Order. Failure to obtain legal counsel prior to executing same will not make them null and void.

When You Should Speak with an Attorney

Again, prior to executing any documents drafted during mediation, or provided by your spouse or spouse’s attorney, or a state agency such as the Division of Health and Human Services, it is important that you contact an attorney who is experienced in Family Law so that you have a complete understanding of the ramifications of executing any such documents. My firm is experienced and reliable and remains ready and available to assist you with all of your legal needs.