Lawson Persson Weldon-Francke Law Firm Laconia NH

Family Law
Frequently Asked Questions – Family Law

  1. What is the difference between legal separation and divorce?
  2. How is child custody determined?
  3. How is child support determined?
  4. How is alimony determined?
  5. What is the difference between a no-fault divorce and a fault divorce?
  6. How is property divided in a divorce?
  7. What happens to a spouse’s health insurance in a divorce?
  8. Do grandparents have visitation rights?

Q:        What is the difference between legal separation and divorce?

A:         Spouses who live apart are separated, but this is different from legal separation.  In order to legally separate, a spouse must file a petition for legal separation under RSA 458:26 and follow the same procedure as a spouse seeking a divorce.  While the process of obtaining a legal separation is the same as the divorce process, legal separation is a distinct track with its own result, not a procedural or legal step in the process of getting divorced.  Unlike some states, New Hampshire does not require the parties to live apart for any length of time prior to filing for divorce.  As with divorce, a legal separation will result in court orders relative to parental rights and responsibilities, child support, alimony, and division of property.  The major difference between legal separation and divorce is that the parties remain legally married, and the wife may not resume her maiden name.  While most parties file for divorce rather than legal separation, some people choose legal separation because of moral or religious concerns about divorce, and others in order to remain eligible on employer-sponsored health insurance plans.

Q:        How is child custody determined?

A:         New Hampshire no longer uses the term “child custody” but rather uses the term “parental rights and responsibilities.”  Parental rights and responsibilities are determined by the application of RSA 461-A.  This statute includes a statement of purpose to guide courts in determining the rights and responsibilities of each parent.  This statement of purpose recognizes that children do best when both parents have a stable and meaningful involvement in their lives, and sets forth a number of specific policy statements designed to further this goal.  The court’s task is to determine parental rights and responsibilities in a way that promotes the best interests of the child, and the court must consider a number of statutory factors designed to further the child’s best interests.  The end result of this process is a parenting plan, which may be filed by agreement of the parties or ordered by the court following a hearing.

Q:        How is child support determined?

A:         In New Hampshire, child support is determined by the application of RSA 458-C.  The first step is to determine the income of the parties for purposes of child support.  Income, for purposes of child support, is defined by statute. The next step is to enter the parties’ income into a formula called the Child Support Guidelines.  Income is multiplied by a percentage set forth in the Guidelines to arrive at a child support figure.  This percentage varies depending on the income of the parties and the number of children for whom support is ordered.  The court will presume that the child support amount reached by the Guidelines is correct, but there are circumstances in which the court can order a higher or lower amount of child support.  These circumstances are controlled by statute as well.  The end result of this process is a uniform support order, which may be filed by agreement of the parties or ordered by the court following a hearing.

Q:        How is alimony determined?

A:         In New Hampshire, alimony is governed by RSA 458:19.  The court may award alimony if it finds that (1) the party seeking alimony is unable to meet reasonable needs or has parenting responsibilities that make employment outside the home inappropriate, and (2) the party from whom alimony is sought is able to meet his or her own reasonable needs and those of the party seeking alimony.  In making this determination, the court will take into account the style of living to which both parties have become accustomed during the marriage.  The New Hampshire Supreme Court has held that a court must take into account certain factors in determining the amount and duration of alimony.  These include each party’s age, health, occupation, income, vocational skills and income potential, the length of the marriage, the fault of either party as specified in RSA 458:16-a, II(l), and the particular needs of each party, among other factors.  The court may also consider each party’s contribution to the value of their respective estates and each party’s noneconomic contribution to the family unit.  However, a court may not consider certain other factors, such as a minor’s social security benefit payments, a subsequent spouse’s income, or a party’s expectancy or future interest in a gift.

Q:        What is the difference between a no-fault divorce and a fault divorce?

A:         In New Hampshire, a court may grant a no-fault divorce pursuant to RSA 458:7-a based on irreconcilable differences between the parties, or a fault divorce pursuant to RSA 458:7 based on the conduct of one party during the marriage.  The most significant difference between a no-fault divorce and a fault divorce is that a no-fault divorce does not require proof of the circumstances of the marital breakdown, while a fault divorce requires specific proof of one or more of the causes set forth in RSA 458:7, such as adultery, extreme cruelty, habitual drunkenness, and others.  If the court determines that a party is at fault as specified in RSA 458:7 and also concludes that this fault caused the breakdown of the marriage and resulted in either substantial physical or mental pain and suffering or substantial economic loss to the marital estate or the injured party, the court may consider such fault as a factor in awarding alimony or distributing marital property.  The New Hampshire Supreme Court has interpreted RSA 458:7 narrowly over the years, and has read into the statute a number of requirements and limitations that must be considered by a party seeking to obtain a divorce decree based on fault.

Q:        How is property divided in a divorce?

A:         In New Hampshire, marital property is divided pursuant to RSA 458:16-a.  The statute states in a general way what property is subject to division in a divorce case and how the property should be divided.  In general, all real estate, personal property, and intangible assets belonging to one or both of the parties is subject to division in a divorce case.  The New Hampshire Supreme Court has held that business assets, military retirement pensions, and interests in IRAs and 401(k)s are also marital assets subject to division.  The court is required to divide property equitably, and will presume that an equal division is an equitable distribution of property unless the court determines that certain factors, as set forth in the statute, justify an unequal division of property.  These factors include each party’s age, health, occupation, income, the length of the marriage, the fault of either party as specified in RSA 458:16-a, II(l), each party’s economic contributions to the property as well as noneconomic contributions to the care of the children or to the education or career of the other party, among other factors.  The court will also consider a custodial parent’s need to occupy or own the marital residence, the effect of a valid prenuptial agreement, and the value of property acquired by a party prior to the marriage or by gift, among other factors.


Q:        What happens to a spouse’s health insurance in a divorce?

A:         Generally, a divorce completely severs and terminates the marital relationship.  However, under New Hampshire law, a divorcing spouse may, in certain cases, be able to stay on a family health insurance plan after the divorce is final.  RSA 415:18, VII-b provides that a spouse who ha d been covered as a family member under a group health insurance policy before divorce may have continued coverage for a period of time after a divorce, so long as the requirements of the statute are met.  Coverage may be continued under RSA 415:18, VII- b for up to three years following the parties’ divorce.  However, other events may cut this time short, such as the remarriage of either party, the death of the plan member, or termination of the plan member’s employment.  In addition, the divorce decree may prescribe a shorter time period than allowed by the statute.
Q:        Do grandparents have visitation rights?

A:         In New Hampshire, grandparents have visitation rights pursuant to RSA 461-A:13.  Grandparents may petition the court for reasonable visitation with a grandchild.  This right to visitation exists only in the absence of a nuclear family, that is, only where the parents of the child are unmarried, separated, divorced, a parent is deceased, or a parent has given up or lost parental rights.  Further, there is no right to visitation if the parents restricted a grandparent’s access to the child while the family was a nuclear family – for example, before the parents separated or divorced.  The court will consider a number of factors in ruling on a petition for grandparent’s rights.  First among these is whether visitation is in the best interest of the child.  The court will also consider the effect of visitation on the parent-child relationship, the relationship between the grandparent and the child, including the frequency of contact and whether the grandparent and the child have previously lived together, and the relationship between the grandparent and the parent, including the effect that any friction between the grandparent and the parent would have on the child.  The court will also consider the circumstances that resulted in the absence of a nuclear family, the recommendation of a guardian ad litem (if any), the child’s preferences or wishes, and any other factor as the court may find relevant.  If the court grants a petition for grandparent visitation, it will order visitation pursuant to a specific visitation schedule as an amendment or addendum to any parenting plan currently in place for the child.
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