A Hypothetical Divorce Case
To help you better understand the legal process surrounding divorce in New Hampshire, below is a sample fact pattern and case evaluation. This is hypothetical and not based on an actual case result.
John and Jane were married seven years ago and lived together for four years before that. John is 45 years of age. Jane is 42 years of age. They have a 5-year-old son named James. In November 2010, the parties separated informally (without court involvement). When they separated, they moved out of the marital home located in Manchester. As a result of the recent drop in real estate values, the home is valued at about $275,000, and they owe about the same amount. They each now rent their own apartment in the Manchester area. They have had an informal parenting agreement since November 2010. James is with his mother on Monday and Tuesday, and with his father on Wednesday and Thursday. They share the weekends as agreed. The parties have expressed a preference for maintaining the status quo with regard to James. John has a high school education and is a couple of credits short of an associate’s degree in business. He works for a home security company and has historically made about $50,000/year. Jane has a bachelor’s degree in psychology and a masters in counseling. Up until recently, she worked full-time as a counselor/therapist and historically made about $40,000/year. For the last two years, she has worked part time and is about a year away from becoming a registered nurse (RN). John has a 401(k) through work with a current value of about $80,000. He also has a pension through a previous employer which he earned before the marriage. Jane has a 403(b) that’s worth about $50,000. Jane’s mother died in February 2011, and Jane inherited about $30,000.
Recently, the New Hampshire Supreme Court held that a period of cohabitation prior to marriage can be considered by trial courts. This is significant because in a long-term marriage, typically 10 years or more, the courts will be inclined to split assets and debts 50/50. In a short-term marriage, typically five years or fewer, the courts will be more inclined to place the parties in the same position they were prior to the marriage.
In this case, it will be difficult to predict how the court will view this marriage. It’s not quite long term, but it is not truly short term either. John’s pension earned prior to the marriage will be awarded to him. Jane would have been entitled to 50 percent of anything that accrued in John’s pension during the marriage. But, in this case, it all accrued prior to the marriage. However, the 401(k) and 403(b) will be treated differently. These accounts are part of the marital estate and subject to division, regardless of when they accrued. However, the court may not be inclined to split those 50/50 in this case due to the relatively short-term nature of the marriage. To the extent that there is any equity in the marital home, the court will probably order a sale with proceeds and/or short-fall split. Or, since John and Jane remain creditworthy, one or the other could buy the other’s interest out, removing the other’s name from the deed and mortgage. Jane’s $30,000 inheritance will probably be awarded to her. Although it is part of the marital estate and subject to division, the fact she received it after the parties’ informal separation and so recently before the divorce, will usually result in the court awarding all or most to Jane. In addition, John’s 401(k) is worth about $30,000 more than Jane’s 403(b), and this will be an additional factor the court would consider in awarding all of the $30,000 to Jane.
Neither of the parties has claimed any fault as the reason for their divorce — no adultery, cruelty, abandonment, etc., alleged. Their divorce is no fault — irreconcilable differences. As such, the possibility of an unequal distribution of assets and/or debts based on fault is not an issue in this case.
Alimony is based on one party’s need and the other’s ability to pay. Consequently, the court will probably not order alimony in this case. Although John has historically earned more than Jane, she has substantially more education than John, and will probably be earning more than John very soon when she gets a job as a nurse. John is also pursuing additional education to increase his earning potential. The bottom line is because both parties are relatively financially independent, alimony is not likely to be an issue. And this is especially true given the parties’ desire to maintain the shared parenting arrangement that has been in place for some time.
With regard to parenting (custody), there is a presumption that joint decision-making (legal custody) will be awarded unless there is a real concern with one of the parents — drug abuse, mental health issues, etc. In this case, there are no such concerns. The parties will be awarded joint decision-making authority, which will allow them to continue having input into the major decisions in the child’s life, for example — what religion, if any, the child practices, whether the child has elective surgery, etc. Decision-making authority will allow each parent equal access to the child’s medical and school records, etc. In addition to decision-making, the parties and/or the court will have to decide which parent has residential responsibility (formerly referred to as custody). If one parent or the other is awarded primary residential responsibility, the other parent will most likely pay child support to the parent with primary residential responsibility (obligee). The parent paying child support (obligor) would have parenting time with his or her kids (formerly referred to as visitation). The amount of child support is based on a formula. But as a general rule of thumb, it works out to be about 25-45 percent of the obligor’s monthly income. The parties could agree to, or the court could order, shared residential responsibility — where the parties have the child 50 percent of the time, or close to it. If such were the case, there is a good chance the court would not order child support, especially if one of the statutory factors existed for nonpayment of child support. In this case, although the informal (50/50) schedule the parties have had is not legally binding, as a practical matter, the court will not be inclined to disrupt the schedule if it is working, if the parties agree and especially if it is in James’ best interest.
Because the parties have agreed to a shared parenting arrangement, and because they are on relatively equal financial footing, this case will most likely be resolved by agreement — an uncontested divorce — usually taking no more than 60 days from start to finish and costing as little as $1500, including the filing fee. If the parties did not agree on parenting, had disparate incomes and/or assets, etc., the case may have been contested, taking years and costing thousands and thousands of dollars to resolve.
Three years after John’s and Jane’s divorce, John loses his job with the home security company. He works part time from home as a telemarketer and has very flexible hours. Jane has gone on to earn a master’s degree in nursing and is now a nurse practitioner, making about $90,000/year. Because John’s schedule is flexible, and because Jane’s job is so much more demanding, James has been spending more time with John. John is primarily responsible for getting James to school and extracurricular activities, packing his lunch and getting him to doctor’s appointments, etc. The parties agree that shared parenting is no longer possible. John files a motion to reopen the divorce. He modifies the parenting plan and is awarded primary residential responsibility. Jane pays John child support. Because the law does not allow it, John cannot change the property settlement. But because it has not yet been five years since the parties’ divorce, John files a motion for an award of alimony because there has been such a substantial change of financial circumstances which were not anticipated.