FAQ

Grounds for divorce traditionally refers to specific reasons a spouse would seek a divorce. If grounds for divorce are pleaded in a case and the filing spouse is successful in proving those grounds, then the court may divide marital assets unevenly in favor of that spouse. Grounds require specific evidence and, in some cases, require an expert witness to testify to the court. This can be an expensive process and tends to delay the ultimate outcome. Most divorce cases are usually "no-fault" divorces, which means that the petitioner/plaintiff is not arguing over the reason for the divorce, just that a divorce is sought and for the court to make specific orders regarding the division of assets, payment of debts, determination of parental rights and responsibilities, etc.

Fault grounds for the state of New Hampshire: Adultery, extreme cruelty, or other marital fault that caused the marriage's breakdown and resulted in substantial physical or mental pain and suffering, or economic loss, impotency, conviction of a crime punishable by more than one year in prison, serious injury or endangerment, absence for at least two years without contact, habitual substance abuse. RSA 458:7.
Fault grounds in the Commonwealth of Massachusetts: Adultery, desertion, habitual intoxication, cruel and abusive treatment, non-support, impotency, prison sentence of 5 or more years. M.G.L. c. 208, s.1.

The length of time for a divorce case varies depending on the facts of each case, e.g. if children are involved, whether there is a large amount of assets, and whether alimony is applicable. Obviously, the more complicated a case is, the longer it may take to reach a conclusion. Another consideration is how much the issues in a case are contested by the parties. A divorce case could be significantly complicated, but if both parties agree on the outcome the process is relatively streamlined. The usual contested divorce can take 1- 2 years before reaching a conclusion. If the parties agree on how to divide their assets and on the parenting issues, the case could be concluded within 6 months.

Most courts consider the needs of the party seeking spousal support, as well as the ability of the other spouse to pay spousal support. Most states then calculate spousal support on the respective incomes of the parties, as well as other factors such as one spouse's ability to earn in the future, and the anticipated retirement ages of the parties, among others. Court will also consider the length of the marriage, did one spouse stay home with children while the other advanced in their career, the respective financial and non-financial contributions to the marriage and household, etc.

When dividing marital assets, most states consider the length of the marriage. In most cases when there is a long-term marriage, the court will likely default to a 50/50 split of assets. Contributions of the parties towards the enhancement or diminution of the parties' assets are also important. Considerations are also given to the feasibility of actually dividing the assets. For example, if real estate is involved, considerations must be given as to whether one spouse has the financial resources to "buy-out" the interest of the other spouse. If children are involved, dividing assets may impact where and which parent with whom the children will reside.

Yes. Prenuptial agreements may be deemed valid, provided there was a full and fair disclosure of assets and liabilities of the parties at the time of its execution. The court will also consider other facts such as: Which spouse drafted the agreement? Did the other spouse have a fair opportunity to meet with an independent attorney, review the agreement with that attorney, and to ask questions of the attorney? Did that spouse have an opportunity to negotiate some of the terms of the agreement? Was there any undue pressure applied by one spouse to the other to sign the agreement? How close in time to the wedding was the other spouse presented with the agreement? If a prenuptial agreement is contested, courts will look to the facts surrounding these various issues, and determine whether there was fraud or coercion in the process of preparing and signing the agreement. Prenuptial agreements can only pertain to the division of assets, spousal support, allocation of liabilities, etc., and cannot dictate parenting issues such custodial arrangements, child support, and the like.

Child support pertains to an amount of support paid by one spouse to another for the purposes of providing food, clothing, shelter, etc. for the children. Depending upon the differences in oncome between the spouses, one spouse may still be ordered to pay child support even if the parties have a shared parenting schedule.

On the other hand, alimony is paid by one spouse to the other so that spouse can live a lifestyle similar to that when the parties were still living together, taking into consideration the various costs associated with the parties having two separate households. Most states will order alimony for a fixed period of time, which is based in part upon the length of the marriage, or whether child support is being paid and for how long that child support will be paid, as well as other factors.

The court will hear evidence pertaining to the debts of each spouse and why the debt was incurred. If the debt was incurred during the marriage and was for the benefit of the marriage, the court will usually require both parties to be responsible for those debts. Depending upon which spouse contracted or guaranteed the debt and who is ordered to pay the debt, the court may offset the overall asset division in favor of one spouse or the other, to account for how the debt will be paid and who is ultimately responsible for paying it. Some debts are going to continue to be the responsibility of the spouse who incurred the debt, such as student loans for the parties' children.

Yes. Depending upon the amount of debt incurred by the parties and whether one party has the majority of the debt, that spouse could file bankruptcy and discharge those debts. Many times, both spouses will file for bankruptcy so that the question of how debts will be divided can be removed from the equation when deciding how to divide assets. If there are no credit cards or personal loans for the parties to negotiate or for a court to consider, then dividing those assets is much more efficient.

Traditionally, legal custody refers to the rights of parents to make important decisions for the children, such as what religion they will follow, what school they might attend, in what town they might reside, as well as major healthcare and dental care decisions. Physical custody relates to where and with which parent the children will reside. Some states no longer use the term custody. For example, NH refers to these parental rights as decision-making responsibility and residential responsibility. Decision-making responsibility is akin to legal custody and residential responsibility is analogous to physical custody.

Each state has its own set of mathematical calculations used to determine child support. The respective gross incomes of the parents are plugged into a specific formula, minus a very limited number of expenses such as health insurance premiums, childcare expenses, and state income taxes. Otherwise, usual monthly household expenses of the parties are not part of the calculations. As a result, if one parent has an unusually large monthly rent/mortgage expense or large utility expenses, those amounts are not going to be included in the child support guidelines calculations.

No. Only if a court has issued an order suspending or terminating parenting time, one parent cannot deny the other parent their court-ordered parenting time. Many times, if a parent has fallen behind on child support payments, the other parent will sometimes make the unilateral decision to suspend parenting time. This is highly disfavored and can subject the parent denying the parenting time to a possible contempt finding just as much as a parent who may fall behind on support payments.

If a divorce or parenting case has been filed, parents cannot relocate to a new residence without the other parent agreeing with the move, or the court approving the relocation. If such a case has been filed and then one parent unilaterally relocates without the consent of the other parent or the court, that parent could be subject to a contempt finding, and in some cases, a criminal referral could be made. On the other hand, if a parent relocates within the same city, town, or school district, or moves closer to the other parent thereby reducing travel time between the parties' residences, the court would not likely view this as contempt of a court order or will not trigger an action by the other parent to get a court involved.

When determining a parenting plan, most courts will consider the overall involvement of each parent in the lives the children that had been occurring prior to the parties separating. As part of that involvement, courts might consider many things, such as: Which parent was the children's primary caretaker at home? Which parent scheduled and attended medical and dental visits? Which parent communicated with the children's educators and was involved in homework with the children? Was there abuse by one or both parents? Does one or both parents have a substance abuse issue? Is there any recent history of domestic violence?

Additionally, if the children are of sufficient age and maturity, their opinions can be heard and considered by the court, but a child is not the final decision maker. The child's opinions would be considered evidence in the case and the court has the discretion to give whatever weight to that evidence it deems appropriate, given the credibility of the child's testimony and the weight and credibility of other evidence in the case.

Ultimately, if parties cannot agree, the court will decide how parental rights and responsibilities are determined. Sometimes, if there is a significant difference as to the parties' respective positions or there is such a high degree of conflict between the parties, the court can appoint a guardian ad litem, ("GAL"), to investigate the matter and assist the court in making determinations as to the best interests of the children.

A GAL is usually an attorney or therapist experienced is these types of cases who will likely meet with the parties, observe the children in each parent's home environment, perhaps even speak directly with the children, depending upon the ages of the children. The GAL may review school records or medical records, speak with the children's educators, as well as family members and friends who may be able to provide additional information relevant to the case. The GAL will likely issue a report to the court, explaining the steps taken during the investigation and provide recommendations to the court as to what the best interests of the children are and what sort of parenting arrangements suits the children. The court does not have to accept the recommendations of the GAL, but courts certainly give great weight to information provided in the GAL's report. The costs of a GAL are paid by one or both of the parties to the case. Many times, a GAL is not appointed in a case as the parties have insufficient resources to cover those costs.

Yes. Although it is expected that parents will follow a parenting plan for a reasonable period of time before entertaining a request to modify the plan from either of the parties, the court understands that the needs and circumstances of the children and the parents will change over time. As children grow, their interests in sports or extracurricular activities evolve, which ultimately affects parenting schedules. Consequently, parties may need to return to court and ask the judge to make adjustments to the parenting plan to comport with these changes. If parents agree to a modification of a parenting plan, they can easily submit a modified parenting plan to the court which would be approved, provided it is fair and reasonable to both parents and does not go against the children's best interests.

If children are exposed to danger or neglect, either from one of the parents or from a family member or significant other of the parent, courts can make temporary modifications to a parenting plan to avoid the risk of irreparable harm or injury to the children. In such instances, the court will then conduct one or more hearings to receive evidence from the parties which would either refute or substantiate the facts which led the court to issue a temporary modification. From there, the court can make a permanent modification of the parenting plan if the best interests of the children require a change, even over the objections of one or both parents.

Chapter 7 bankruptcy cases, sometimes referred to as a liquidation bankruptcy or a "straight" bankruptcy, allow debtors to discharge certain types of debts without having to repay any of it. Also, despite misconceptions, debtors in a Chapter 7 bankruptcy can keep assets, such as a home, a car, furniture, and retirement accounts, provided the value of those assets does not exceed the "exemptions" provided by law. Also, in order to file a Chapter 7 case, the income of the debtor's household must be within certain parameters in order to qualify for Chapter 7.

A Chapter 13 bankruptcy case provides a plan of reorganization, in which certain debts are paid in part or in full over a three (3) to five (5) year period. Sometimes, debtors may want to file a Chapter 7 bankruptcy case but they are unable to do so if the value of their assets exceeds the allotted exemptions, or their household income is such that they do not qualify for Chapter 7. In those cases, in order to still get the benefit of bankruptcy protection, debtors will opt to file a Chapter 13 case. Also, if a debtor has previously filed for Chapter 7 within the last eight (8) years and received a discharge in that case, then they may have to file a Chapter 13 case in order to get relief from the bankruptcy court. Another common reason for filing Chapter 13 is that it allows debtors who have fallen behind on their mortgage payments and are facing foreclosure to stop the foreclosure process and to repay those overdue mortgage payments over a three (3) to five (5) year period.

Most consumer debts are dischargeable debts. The common exceptions to discharge are student loans, child support, alimony, restitution from a criminal case, recent tax debts, debts incurred through fraud or misrepresentation, to name a few. Also, if a creditor believes that a debt was incurred through fraud or misrepresentation but a court has never decided that issue, the creditor can bring an action in the bankruptcy court to have the debt declared non-dischargeable by the bankruptcy judge; however, this process is long and can be expensive for the creditor, so these types of actions are usually only filed when the evidence proving the creditor's case is significant and compelling, and the amount of the debt is large.

Provided the values of a debtor's assets are within the parameters set forth by bankruptcy law, most cases allow for debtors to keep their assets. Most households have assets that fit within the various "exemptions" provided by bankruptcy law which exempt those items from seizure or liquidation by a bankruptcy trustee. Debtors with a home, car, furniture, jewelry, retirement accounts, etc., are usually able to file Chapter 7, receive a discharge of debts, and still keep those items. It is also important to note that in order to keep a home or car into the future, the loan payments for those assets still have to be paid according their respective contracts, and those creditors can still repossess or foreclose those assets if payments fall far enough behind.

Most debts that are discharged in bankruptcy can remain on a credit report for up to seven (7) years. A Chapter 7 case may be listed as a separate item on a credit report under the sections which list judgments or court actions, and can remain on a credit report for up to ten (10) years.

In a Chapter 13 case, a debtor proposes a repayment plan that would repay in full past due mortgage or car payments, certain past due taxes, past due child support or alimony, amongst others. The plan must also pay a portion of general unsecured debts, such as credit cards, medical and dental bills, personal loans, but the amount paid on those kinds of debts is determined in part by the debtor's household income and expenses, the value of assets which may exceed the exemption amounts, as well as other calculations contained in the Bankruptcy Code. The debtor must pay back the total amount of provided in their Chapter 13 plan over the course of a three (3) to five (5) year period. After the Chapter 13 plan is concluded and all payments have been made, the debtor will receive a Chapter 13 discharge, which discharges any remaining balances on most general unsecured debts. For creditors that are listed in the bankruptcy case to receive any money from the Chapter 13 plan payments, they must file claims with the Bankruptcy Court within a prescribed period of time. If they fail to file timely claims, and the debtor completes the Chapter 13 plan, then even those debts can also be discharged.

Yes. The debtor must continue to pay regular mortgage payments during the course of their Chapter 13 case, as well as pay back any past due mortgage payments that were unpaid at the time the Chapter 13 case was filed. If a debtor fails to comply with these and other requirements, the case can be dismissed, or a mortgage company can seek authority from the Bankruptcy judge to commence or resume a foreclosure process.

Depending upon a debtor's income and expenses as well as the types of debts being paid through their Chapter 13 case, a Chapter 13 case can be open for a three (3) to five (5) year period.

If a debtor owes income taxes from prior years, those tax debts can be paid without additional interest and penalties through a Chapter 13 repayment plan. Some income taxes that are sufficiently old and meet other parameters can be paid a lesser amount through a Chapter 13 case, and may even be able to be discharged in a Chapter 7 case, provided the debtor qualifies for Chapter 7. Any tax returns that are due after a bankruptcy case has started would still need to be filed on time. Any income tax debts that are incurred post-bankruptcy would still need to be paid.

Yes. The value and size of the business can matter whether a debtor files Chapter 7 or Chapter 13, and in some cases Chapter 11. Many times, if a business is failing, a debtor can file Chapter 7 and debts incurred or associated with the business can also be part of their Chapter 7 discharge. The types of cases tend to be much more complicated than a consumer bankruptcy case.

Certain steps taken by a debtor to protect assets before filing a bankruptcy case are perfectly acceptable. This is commonly known as pre-bankruptcy planning. A common example of pre-bankruptcy planning: A debtor owns a motor vehicle that is either significantly underwater or has a large monthly loan payment. Prior to filing the bankruptcy case, the debtor goes to a dealership and obtains a car loan that has a manageable monthly payment. The debtor then stops paying on the vehicle loan that is too expensive, then files bankruptcy. As part of the bankruptcy filing, the debtor "surrenders" the vehicle that has the expensive payment and keeps the newer vehicle, making regular payments on that new loan. The lender that has the loan with the large payment for which the car has been surrendered will not usually contest this transaction. Even if they did, a court would not punish the debtor for engaging in pre-bankruptcy planning such as this.

A Will allows for a person to decide how and to whom their assets should be given after they have passed away. This allows the person making the Will, known as a "testator," to make those decisions before they die to avoid assets being distributed according to state's laws which govern such assets, and which may be contrary to the testator's intentions. It is important to note that, even though the testator was free to make these decisions prior to death, the Will must still pass through a probate court before the assets can be distributed according to the Will. A common misconception is that creating a Will allows the deceased person's heirs to avoid probate. This is simply not the case.

On the other hand, a Trust can avoid probate. The Trust can still provide how and to whom assets are distributed, but it is done without court intervention, as the Trust is a contract not subject to the court's jurisdiction. Trusts are usually either revocable or irrevocable. Irrevocable trusts transfer complete control of assets to the trustee of the trust, and the person creating the trust, usually referred to the "settlor" or "trustor," does not have discretion to make changes to the trust. A revocable is the more common type of trust used in estate planning as it provides the settlor with the ability to make any changes to the trust, or replace the trust entirely, while they are alive.

It depends. For example, if an individual only has a small amount of personal property, an old car, and a bank account, a Will may not be necessary. This is particularly the case if the individual has named a beneficiary to receive the funds from the bank account. This is a critical point: a person who has even a small checking account, but that account has no co-owner or beneficiary listed. In that case, the financial institution will not release the funds from that account no matter how small until a probate court has authorized them to do so. That would require the heirs of the decedent to file a petition in the probate court to obtain that authorization, regardless of whether there is a Will.

A living will is a document providing instructions to a healthcare decisionmaker or healthcare provider as whether the creator of the living will want to have heroic means used to keep them alive if they are unable to make healthcare decisions due to incapacity. Those instructions can be as general or as specific as the person believes is necessary to make their wishes clear.

A durable power of attorney grants authority to an agent of an individual so that the agent can make all financial decisions for the benefit of that individual in the event they are incapacitated. For example, a durable power of attorney would allow a spouse or family member to handle all financial matters for a person who is in a coma, or has dementia, and does not have the mental and/or physical capability of handling those matters on their own.

Most states have probate courts. These types of courts handle cases relative to a deceased person's assets, either if there is a Will involved or not. They also handle guardianships of elderly or incapacitated persons, as well as matters relating to persons who are on life support and there is a dispute among family members as to whether life support should be terminated.

It depends. If there is no Will, it will usually depend upon the types and amounts of assets owned by the deceased person, such as financial accounts, real estate, valuables, etc. This type of case can take up to a year or more. If there is a Will and no one has come forward objecting to the Will, these types of case could take six (6) months to a year.

Court filing fees can be in the hundreds of dollars, depending on the size of the deceased person's estate. Attorney's fees can be several thousands depending the size of the estate. Sometimes a case will have a real estate appraiser involved or other professional to provide evidence as to the value of assets and those types of costs can also be several hundred dollars, and can be as much as several thousand dollars, depending on the number and value of assets.

In most states, there is no inheritance tax. An inheritance tax requires beneficiaries to pay taxes on assets and property they have inherited from someone who has died. This type of tax is separate and apart from any other types of taxes that could be levied on income or assets, such as capital gains taxes or income taxes. Most states do not have an inheritance tax. Currently, there are six (6) states that have an inheritance tax: Maryland, Nebraska, Kentucky, New Jersey, Pennsylvania and Iowa (but Iowa's inheritance tax will phase out completely in 2025).

An estate tax is levied against certain estates after a person has died, but before the money has been passed on to their heirs. It only applies to estates that have reached a certain threshold of wealth, which varies based on which state government is levying the tax. In NH, there is no estate tax. In Massachusetts there is an estate tax, but the amount is dependent upon the size of the estate. It is highly unlikely that most households will reach the threshold set for an estate tax to be triggered.

There is also a Federal estate tax. Most relatively simple estates (cash, publicly traded securities, small amounts of other easily valued assets, and no special deductions or elections, or jointly held property) do not require the filing of an estate tax return. A filing is required if the gross estate of the decedent, increased by the decedent's adjusted taxable gifts and specific gift tax exemption, is valued at more than the filing threshold for the year of the decedent's death, as shown below.