Spiller Law Firm, PLLC
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Concord, NH 03301
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My spouse says I will get nothing
because the house and cars are not in
my name. What will the court do?
Under RSA 458:16-a, marital property
includes all tangible and intangible property
and assets, real or personal, belonging to
either or both parties, whether title to the
property is held in the name of either or
both parties. Intangible property includes,
but is not limited to, employment benefits,
vested and non-vested pension or other
retirement benefits, or savings plans.
How does the Court divide the assets
like the house, the cars, bank account
and our personal property like our
When a divorce is granted, the court may
order an equitable division of property
between the parties. Under RSA 458:16-a,
the court shall presume that an equal
division is an equitable distribution of
property, unless the court establishes a
trust fund under RSA 458:20 or unless the
court decides that an equal division would
not be appropriate or equitable after
considering one or more of the following
factors: (a) the duration of the marriage,
(b) the age, health, social or economic
status, occupation, vocational skills,
employability, separate property, amount
and sources of income, needs and liabilities
of each party, (c) the opportunity of each
party for future acquisition of capital assets
and income, (d) the ability of the custodial
parent, if any, to engage in gainful
employment without substantially
interfering with the interests of any minor
children in the custody of said party.
(e) the need of the custodial parent, if any,
to occupy or own the marital residence and
to use or own its household effects,
(f) The actions of either party during the
marriage which contributed to the growth
or diminution in value of property owned
by either or both of the parties, (g)
significant disparity between the parties in
relation to contributions to the marriage,
including contributions to the care and
education of the children and the care and
management of the home, (h) Any direct
or indirect contribution made by one party
to help educate or develop the career or
employability of the other party and any
interruption of either party's educational or
personal career opportunities for the
benefit of the other's career or for the
benefit of the parties' marriage or children,
(i) The expectation of pension or
retirement rights acquired prior to or
during the marriage, (j) The tax
consequences for each party, (k) The
value of property that is allocated by a valid
prenuptial contract made in good faith by
the parties, (l) The fault of either party as
specified in RSA 458:7 if said fault caused
the breakdown of the marriage and:
(1) caused substantial physical or mental
pain and suffering; or (2) resulted in
substantial economic loss to the marital
estate or the injured party, (m) the value of
any property acquired prior to the marriage
and property acquired in exchange for
property acquired prior to the marriage.
(n) The value of any property acquired by
gift, devise, or descent. and (o) Any other
factor that the court deems relevant.
What does the Court do to divide
retirement benefits in a Divorce?
The Court can equitably divide retirement
accounts including Pensions, State of New
Hampshire employee pensions, 401(k), 403
(b), and IRAs. Like with federal retirement
benefits and military retirement pay, it is
important that your decree has the right
language for the particular retirement
benefit in question. Qualified Domestic
Relations Orders which must be approved
by the Court are used to divide 401(k) and
403(b) plans. In all cases, the Final Decree
have sufficient information and instructions
on how the asset is to be divided. An
administrator for a retirement plan cannot
read into a Qualified Domestic Relations
Order or Final Decree what is not actually
there. Likewise, an administrator cannot a
payee benefits that they are not by federal
law allowed to have because their
employee spouse was not entitled to such
My spouse works or did work for the
federal government - what about
federal retirement benefits?
Most Federal employees will be in one of
two retirement systems. The Civil Service
Retirement System (CSRS) originally
covered employees first employed prior to
1987. FERS Retirement - The Federal
Employees Retirement System (FERS) is
the newest retirement system generally
covering employees employed after 1987
and those who voluntarily switched from
CSRS. These are annuity retirement plans.
The Court can award a former spouse a
share of the employee’s retirement annuity,
a survivor annuity, or both. Some federal
employees also have Thrift Savings Plan
(TSP). A court also can award a former
spouse of a federal employee a portion of
the employee’s Thrift Savings Plan
account balance as part of a divorce
What about military retirement pay?
Federal employees and their spouses
should know that "to the extent permitted
by federal law, property also includes
military retirement and veterans' disability
benefits." This is because the Uniformed
Services Former Spouses' Protection Act
(USFSPA) permits, but does not require,
state courts to divide military retirement
upon divorce, legal separation or
annulment. 10 U.S. Code §1408.
Spouses of current or former military
should know that the USFSPA only
requires the Defense Finance and
Accounting Service (DFAS) to directly pay
the former spouse his or her share of the
military retirement if there were at least 10
years of marriage overlapping 10 years of
creditable military service (the 10/10 rule).
However, Family Division courts are free
to divide military retirement for couples
with fewer than 10 years of marriage but
spouses should know that in these
situations, the service member actually
writes the check to pay the civilian spouse,
rather than DFAS.
What is a Parenting Plan?
A parenting plan is document that is either created by a child's parents or by the
Court which fully describes each parent's responsibilities and rights. Each parenting
plans must address the following issues involving the children: (a) decision making
responsibility, (b) residential responsibility, (c) parenting schedule including daily and
weekend parenting time as well as holidays, vacations, birthdays and other special
days, (d) transportation and exchange of the child, (e) designation of the legal
residence of the child for school attendance, (f) relocation of the child; (g)
information sharing and access between the parents and telephone and electronic
access between the child and parents, and (h) procedure for review and adjustment
of the plan. The parenting plan is also used to describe supervised parenting time
arrangements if necessary and other parental responsibilities that are frequently
unique to each case.
The terms adopted in the Family Division's family plan replace the older more
adversarial terms like "physical custody," "visitation," "legal custody," and "sole
custody. The changes are designed to make New Hampshire's family courts more
approachable, less adversarial, and to allow the parents to focus what is best for
their children rather than fighting. Parenting plans include sections that allow the
parents to specify how often they will meet to discuss future changes to the
parenting plan and whether they will employ a neutral third party to help settle
disputes before returning to court.
Parenting plans must be prepared in any case in which a parent wants to establish
parental rights and responsibilities or modify an prior order for parental rights and
responsibilities. A parenting plan must be approved by the Court.
What happens if the other parent and I cannot agree on a parenting plan?
When parents cannot agree on all aspects of a parenting plan, the court will make a decision on the basis of
the “best interests of the child.” RSA 461-A:6 provides a list of factors to be considered by the Court when
deciding which parenting arrangement is best for a child; a) The relationship of the child with each parent and
the ability of each parent to provide the child with nurture, love, affection, and guidance, (b) The ability of
each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe
environment, (c) The child's developmental needs and the ability of each parent to meet them, both in the
present and in the future, (d) The quality of the child's adjustment to the child's school and community and
the potential effect of any change, (e) The ability and disposition of each parent to foster a positive
relationship and frequent and continuing physical, written, and telephonic contact with the other parent,
except where contact will result in harm to the child or to a parent, (f) The support of each parent for the
child's contact with the other parent as shown by allowing and promoting such contact, (g) The support of
each parent for the child's relationship with the other parent, (h) The relationship of the child with any other
person who may significantly affect the child, (i) The ability of the parents to communicate, cooperate with
each other, and make joint decisions concerning the children, (j) Any evidence of abuse, as and the impact
of the abuse on the child and on the relationship between the child and the abusing parent, (k) If a parent is
incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of
incarceration, and (l) Any other additional factors the court deems relevant.
What can't the Court consider in making this decision?
Under RSA 461-A:6, the court shall not apply a preference for one parent over the other because of the sex
of the child, the sex of a parent, or the financial resources of a parent.
Who is a Guardian Ad Litem (GAL)?
In all proceedings for divorce, separation, annulment, paternity, or determination of parental rights and
responsibilities, the court may appoint a guardian ad litem to represent the interests of the children of the
parties, upon its own motion or motion of any party. The court may, in its order of appointment, after
considering the nature of the issues raised in the case pending before it, specify the concerns to be addressed
by the guardian ad litem, and otherwise limit the scope of the appointment. In a divorce, the guardian ad litem
may be appointed to continue to serve after a final decree of divorce has been granted.
Guardian ad Litem are specially trained to assist the Court in determining the best interest of the child. A
GAL may be an attorney or a lay person. When a Guardian Ad Litem is appointed, the Court will decide what
percentage of GAL fees each parent will pay and whether either parent qualifies financially for assistance
through a special court fund for GAL fees. Parents who are eligible for this GAL fund must make
arrangements for a monthly payment plan with the Court's Office of Cost Containment immediately after the
GAL is appointed.
What are the child support guidelines?
The New Hampshire child support guidelines were established to provide a uniform system to be used in the
determination of the amount of child support, to minimize the economic consequences to children, and to
comply with applicable federal law by using specific guidelines based on the following principles:
- that both parents shall share responsibility for economic support of the children,
- that the children in an obligor's initial family are entitled to a standard of living equal to that of the obligor's
subsequent families, and
- the percentage of net income paid for child support should vary according to the number of children and,
with limited exemptions, not according to income level.
What happens if both parents have equal or nearly parenting time, does that mean we don't pay
No, RSA 458-C:5 which addresses all of the factors that can be considered by the Court in making
adjustments to the application of guidelines in special circumstances, states that "equal or approximately equal
parenting residential responsibilities in and of itself shall not eliminate the need for child support and shall not
by itself constitute ground for an adjustment." While joint parenting time is not by itself sufficient grounds for
a deviation from the child support guidelines, there may be other factors that the Court may consider in your
Can child support be modified?
Yes, either parent may file a petition to modify child support if it has been at least three years since the entry
of the last order for support, without the need to show a substantial change of circumstances. If the court
order is less than three years old, either parent may file a petition to modify child support but will need to
prove to the court that there has been a substantial change of circumstances that warrants a modification.
I lost my job because of company wide layoffs and maybe I will get a new job soon so should I wait
before I file?
It is generally best not to wait. Under RSA 458-C:7, the Court cannot retroactively back date child support to
a date prior to the date that notice of your Petition to Modify Child Support was given to the other parent.
The modification will not predate the service date unless you can prove that the other parent deliberately
I am a grandparent. The parents of my grandchild won't let me see my grandchild. Is there anything
I can do?
Yes, you may apply for visitation by filing a Petition for Grandparent Visitation. We can help you with this
I have a order issued by another state that I need to have New Hampshire enforce. What do I do?
You must file a Petition to Register Foreign Order in Affidavit Form first in order for a New Hampshire Court
to enforce an existing order issued by another state. Among the out of state orders that New Hampshire can
enforce include: divorce, legal separation, civil union dissolution, child support, custody, parental rights and
responsibilities, and alimony. It is important to remember that Courts must follow jurisdiction rules and
cannot not allow parties to "shop" for more favorable laws. In some cases, the originating state retains
The other party will not comply with the Court's Orders. What do I do?
We can help you file a Motion for Contempt to obtain compliance with the existing orders. In some cases if
the existing orders are vague or if they are child support or parenting plans that no longer fit your situation
well, we will advise you to seek a modification of that order instead if it is more appropriate. It is important
to remember the Court can only enforce what is actually written in the existing orders not what was
informally agreed by the parties.
Can I file a Guardianship for a minor in Family Division?
Yes, as long as guardianship does not involve managing the child's financial assets. This is referred to as a
"guardianship over the person" of the minor. However, if a child has financial assets such as trusts or
settlements arising out an accident, Probate Court continues to retain exclusive jurisdiction over these
guardianships which are the "estate of the minor."
Can two people share a guardianship of a minor?
Yes, if the court finds that both parties would be appropriate guardians. We have helped parents and
grandparents share guardianship when circumstances warrant such an arrangement and the Court approves.
Will my ex-spouse receive social security retirement benefits on my record after we are divorced?
If you are divorced, your ex-spouse can receive benefits based on your record (even if you have remarried) if:
- Your marriage lasted 10 years or longer,
- Your ex-spouse is unmarried,
- Your ex-spouse is age 62 or older;
- The benefit that your ex-spouse is entitled to receive based on his or her own work is less than the benefit he
or she would receive based on your work; and
- You are entitled to Social Security retirement or disability benefits.
If you have not applied for retirement benefits, but can qualify for them, your ex-spouse can receive benefits on
your record if you have been divorced for at least two years. However, if your divorced spouse remarries, he or
she generally cannot collect benefits on your record unless his or her later marriage ends (whether by death,
divorce or annulment).
What if my ex-spouse is/was a federal employee - can I still receive social security retirement benefits?
Those Federal employees who are enrolled in FERS participate in Social Security. Thus an ex-spouse of a
federal employee who is enrolled in FERS is eligible for a Social Security spouse’s benefit at age 62 if the
couple were married for at least 10 years, and if the employee is receiving, or is entitled to, Social Security
benefits. Again, if the former spouse of the employee remarries, he or she generally cannot collect benefits on
the employee's record unless the marriage ends by death, divorce, or annulment.
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