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August 12, 2009

Yours, Mine and Hours

One of the components of a divorce agreement or decree is the distribution of marital property. The State of New Hampshire is an equitable distribution property state. What that means is that the court adopts principles of fairness when dividing the marital estate. In New Hampshire there is a presumption that what is fair is a 50%/50% division of property. There are a number of factors that the court can consider when dividing marital property, that may cause the court to deviate from an equal split. These factors include the length of the marriage, earning capacity of the parties, and the ability to acquire assets in the future, to name just a few. All property is considered to be marital property regardless of whose name it is in, and will be subject to distribution by the court absent a valid prenuptial agreement.

But perhaps it is the parties themselves that have the best sense of what is fair in the division of their assets. More often than not, a common sense approach will result in a resolution that is representative of the best outcome. The alternative is, of course, to spend large amounts of money on legal fees (payable by the hour), to fight about something that would otherwise be resolved if reasonable heads prevailed.

July 7, 2009

Order in the Court, and Hopefully in the Home as Well

Perhaps one of the most difficult periods of time in a divorce is the period from the initial filing of the proceeding to the time of the issuance of the temporary orders. The filing of the divorce itself does not necessarily provide any framework from which the parties can operate. As a result, each side is uncertain and unclear as to "when they can have the kids," who should pay the bills, and who is allowed to live in the house. Absent an agreement as to these things, the parties need the court to decide. One of the earliest opportunities to appear in court in a divorce matter in New Hampshire generally occurs at the time of the Temporary Hearing.

The purpose of this thirty minute hearing is to present information to the court so that orders can be made while the case is waiting for a final hearing (which could be several months). These orders can include provisions for temporary child support, alimony, use of the marital home, payment of debts, health insurance coverage, and a temporary parenting plan, to name a few. The hearing itself is conducted based on "offers of proof" meaning that each side has fifteen minutes to inform the court in summary fashion the facts of the case, together with an explanation as to what each side is asking for. The rules of evidence do not strictly apply in these cases, and often times parties are astonished as to how representations can be made by either side with little or no "evidence" to back it up. If people are represented by lawyers, they usually do not speak themselves during the hearing.

Due to the limited time allotted to these cases, the court is in the unenviable position of having to make significant decisions, based on very limited, and not always reliable information. Preparation for these hearings is important, as the resulting orders can be in effect for many months before a final hearing is scheduled. In cases where parenting issues are in dispute, a guardian ad litem will usually be appointed at this time.

It is rare that the court issues orders "from the bench," and in fact it can take weeks until an order is received in the mail, just prolonging the uncertainty. It is always an option to reach a temporary agreement on any or all of the issues. It is clear to see that there is a benefit to providing structure and predictability to all involved by attempting to resolve as many issues as possible by agreement, and avoiding the uncertainty and delay caused by litigation.

June 30, 2009

What you see is what you get.....or is it?

We have all heard it time and again; communication is the key to a good relationship. Not only is this true in friendships and marriages, but it is true in every human interaction. Our perception of events is strongly influenced and shaped by our own experiences. Difficulties arise in marriages when communication breaks down. This happens in a variety of ways. Most common is our tendency to anticipate the other person's response. We think we know what "they will say" and therefore avoid communicating entirely. This also happens in the divorce process. People tend to view their spouse through their own lens of who they believe them to be, seeing the other person as a fixed and static being without room for change. But like every other situation in our lives' journey, it is a dynamic process. Change is always possible, but only as possible as our belief that it is.

A helpful tool in the communication process is to understand the distinction between a "position" and an "interest." Generally, people assert a position with regard to a particular issue. For example, someone may take the position that they do not want their spouse to exercise parenting time on a school night. To the other person this appears to be inflexible and unreasonable, and on the surface, perhaps it is. However, underlying every position is the person's interest which the position supports. In our example, the underlying interest may be that the parent is concerned that the other parent never helps the child get their homework done. Once we know the interest, the position no longer seems unreasonable. Most people never get beyond reacting to the other person's position, totally misunderstanding the underlying interest. Once the parties can explore and share their respective interests, they can engage in discussion as to how those interests can be met. So again back to our example, a reasonable solution is for the parents to agree that when the child is with either parent, they will ensure that the homework gets done.

Take the time to look beyond the position. Find out what is the underlying interest. Chances are the interest is reasonable, even when the position appears to be otherwise.

June 29, 2009

Today is the First Day of the Rest of Your Life.

This might sound like an unusual title to a blog concerning divorce and family law issues. Well, this is the first entry of my new blog, and as such, I am in a position to make it whatever I want it to be. It is also a great opportunity to point out that this same principle can also apply to how you move through your own divorce.

Once you have made the painful decision to get divorced, there are various options available to you as to how you move through the process. The least effective option is to litigate the issues. This means that you and your spouse put the final decisions as to children, property, debts, etc. in the hands of a judge or marital master. You relinquish control over the outcome, and risk a result that neither of you are particularly happy with. Alternatively, you can engage in mediation, where a trained facilitator assists you in reaching an agreement by mutual consent. Statistics support the fact that people who enter into agreements are more likely to abide by their terms. A similar process to mediation is collaborative law, where the parties enter into a written agreement to refrain from litigation in the first instance, and have lawyers present during the negotiation process.

Realize that there are well developed patterns of behavior that have occurred during the marital relationship that may serve as impediments to you and your spouse choosing the most effective approach to addressing your differences. Perhaps the difficult changes that present themselves in the divorce process can also serve to be an opportunity to learn to do things differently. If there are minor children involved, keep in mind that one of the greatest marital assets you have is the parenting relationship itself.

So, if you are facing divorce and the difficulties it can present, remember that you have options and the ability to choose. Finding a better approach to problems can begin today.