New Hampshire Divorce Requirements

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DIVORCE

In New Hampshire, individuals have the right to represent themselves in divorce The legal term for representing yourself is "pro se," pronounced "pro say,� which is Latin for "on your own behalf." Bear in mind that representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be jeopardizing important rights. It is very important for you to find out, for instance, if your spouse has a pension, retirement account, insurance, or other significant property before you decide whether to file for divorce on your own. If you do not ask for such things during the divorce, you may be giving them up forever. Before you file for divorce on your own, you need to talk to your spouse, if possible, to find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication about how to proceed with the divorce.

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Divorce/Legal Separation/Annulment - the Differences

Divorce is the court-ordered termination of a marriage. In New Hampshire there is divorce and legal separation. When the court decrees (orders) a divorce, it means that the marriage ceases to exist. Divorce is permanent; the parties are free to remarry and their property claims are settled. Legal separation and divorce are in all respects identical, with the exception that the parties in a legal separation are unable to remarry. In New Hampshire, legal separation is not merely a step that is required before divorcing; there is no legal separation requirement. If you are legally separated, and decide you want to be divorced, you can file a motion with (ask) the court to amend your legal separation to change it to a divorce decree.

Annulment, on the other hand, establishes that your marriage never existed. Generally, annulment is granted because the union was brief and illegal in the first place because the couple were close blood relatives; one or both of the parties was underage; one of the parties lied about something important to the marriage; or one of the parties was already married to someone else (bigamy). The court may consider the legitimacy of any children as a result of the union and the preservation of the sanctity of marriage in making its determination. Because of these considerations, a court will generally look to grant a divorce instead of granting an annulment.

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Annulment

An annulment is a rare legal proceeding establishing that a valid marriage never occurred for one or more of the following reasons:

  1. one or both of the parties is already legally married to someone else (bigamy);
  2. one or both parties are underage;
  3. the parties are close blood relatives; or
  4. one of the parties lied about something important to the marriage.

An annulment is more difficult to obtain than a divorce and you must be prepared to offer documentation to support your contentions. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce.

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Filing Requirements-Jurisdiction

The law limits the authority of state courts to grant divorces. This authority is known as jurisdiction over a court proceeding. For a New Hampshire court to have jurisdiction over a divorce, at least one of the following requirements must apply: 1) both parties must live in New Hampshire at the time of filing; 2) the spouse filing for divorce (the petitioner) must have lived in New Hampshire for at least one year immediately preceding the filing and the spouse (respondent) must be personally served with divorce papers within the state; or 3) the petitioner must have lived in New Hampshire for at least one year immediately prior to filing.

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Residency Requirement

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

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Proof of Residency

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

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Resident Versus Nonresident

A court may take on a divorce proceeding even if your spouse is not a resident of New Hampshire. If you or your spouse moves to another state after the divorce has been filed, you may still have your case heard in New Hampshire.

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How To Establish Residency

Register to vote. Get a driver's license. Get a job. Purchase a residence. Sign a lease. Open charge accounts or bank accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

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County Jurisdiction

New Hampshire has counties that govern the court where your divorce will take place.. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business.

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Where to File?

Residents of Belknap, Carroll, Coos, Grafton, Merrimack, Rockingham, or Sullivan counties file divorce actions at their county's District Court, Family Division, which has jurisdiction to hear divorce cases. Residents of Cheshire, Hillsborough, or Stratford counties file divorce actions in their county's Superior Court, which has jurisdiction over divorce action in these counties. If there are multiple family division locations within a county, the petition is properly filed in the family division location for the town in which the petitioner resides. If a joint petition is filed, the petition is properly filed in the family division location for the town of either the petitioner or the respondent.

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Documents to File

An individual initiating a divorce (a Petitioner) begins divorce proceedings in New Hampshire by filing a Petition for Divorce and a Personal Data Sheet.

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Notice Requirements-Single Petitioner

The Petitioner's spouse (Respondent) must receive notice of the filing by one of three methods: 1) the Respondent can go to the court to pick up the papers; 2) the Petitioner can send the papers to the Respondent by certified mail; or 3) the Petitioner can have the sheriff serve the papers on the Respondent. If notice is not provided by one of these methods, the divorce filing is invalid.

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Joint Petition-No Minor Children

In New Hampshire, if both spouses with no minor children agree to obtain a divorce, even if they do not agree on the division of property, they can begin divorce proceedings by filing a Joint Petition for Divorce along with a Personal Data Sheet. Filing jointly provides the advantage of removing the requirement of serving the nonfiling spouse with legal papers.

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Financial Affidavits

Once the filing process is completed, each spouse must complete Financial Affidavits, which include detailed information on sources and amounts of income, taxes, debts, value of assets, budgets, and employment information.

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Certificate of Divorce

A State of New Hampshire Certificate of Divorce, Legal Separation or Annulment form must be completed before a divorce can become final.

When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not state correctly, your spouse could file a motion to dismiss your case.

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Response

After the petition is filed, if the court has not received a timely response from the Respondent and the Petitioner has requested a default, a default hearing will be scheduled no less than 30 days from the Petitioner's written request, provided the Petitioner has filed the following with the court: a military affidavit, vital statistics form, non-cohabitation affidavit, affidavit of impossibility, uniform support order, and child support guideline worksheet if child support is to be ordered, a proposed decree, a parenting plan, a current financial affidavit,, and a certificate that the previously listed documents have been forwarded to the other party. Petitions that are incomplete or that are incorrectly served will be dismissed.

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Waiting Period

In New Hampshire, there is no waiting period or period of separation required before filing for divorce.

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Grounds for Divorce

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up on your own, saddle your charger, and ride off into the sunset. Over the years each state has enacted legislation that governs acceptable grounds. New Hampshire is what is known as a no-fault divorce state, which means that neither party is required to state specific grounds for divorce other than the standard �irreconcilable differences that have caused the irremediable breakdown of the marriage� meaning basically that you believe your differences as a couple have reached a point that your marriage can never be repaired.

Most divorces in New Hampshire are filed as no-fault. With the trend toward settling differences through mediation and greater cooperation over parenting issues, the motivation for stating grounds for divorce as a strategy in divorce proceedings has weakened.

Among the acceptable grounds in New Hampshire for divorce filings are the following:

  • Impotence of either party;
  • extreme cruelty of either party to the other;
  • physical abuse or reasonable apprehension of physical abuse
  • adultery; (If adultery is charged, the �co-respondent� must be named in the petition, i.e. the person with whom your spouse is committing adultery)
  • conviction of a crime punishable for more than one year of incarceration;
  • abandonment by one spouse of the other for a period of two years or longer;
  • when one party has been in an habitual drunken state for a period of over two years; or
  • when one party joins a religious sect or society that believes the relations between husband and wife are unlawful and who refuses to cohabit for a period of 6 months or longer.
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Adultery

There probably is no such thing as a pleasant adultery case because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as handholding, kissing, and hugging between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is mere speculation. The same is true if you only show there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

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Naming the co-respondent

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

The Adulterers

Adulterers are not equal under the blanket of the law. Adultery may impact parenting plan issues if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards but could be a factor for consideration in awarding alimony.

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Condonation of Adultery

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then your spouse will argue that adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.

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Crimes

If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in New Hampshire. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to be sentenced to serve more than a one-year sentence in a penitentiary or penal institution.

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Desertion and Abandonment

For all practical purposes, desertion and abandonment are one and the same. . There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In New Hampshire, the abandonment has to continue for 2 years or longer.

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Constructive Desertion

You also can be deserted even if your spouse does not physically leave. If your spouse's behavior endangers your life, health, safety, or is so cruel as to constitute mental cruelty, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship�not necessarily the home.

Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship.

Conduct that endangers a spouse's life, safety, health, and even self-respect, which rises to the level of mental cruelty.

One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other.

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Temporary Decree

Couples often seek a court ruling setting forth rules on handling budgets and assets during the divorce process, but before the decree is final. Parties can file a form for a Temporary Decree on Petition for Divorce, Legal Separation or Civil Union Dissolution, which sets forth temporary rules regarding issues such as which party has the responsibility for payment of insurance, alimony, and child support, who has the use of vehicles, furniture, personal property, financial assets, who lives in the marital home, and who has the responsibility for paying which debts. Once the final divorce decree is issued, the Temporary Decree is no longer in force.

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Finality of Decree

Decrees in uncontested matters in which the parties have filed a permanent agreement become final on the date signed by the judge.

Contested and default actions become final the 31st day from the date of the clerk's notice of decision. If a timely appeal is filed, the judgment is not final until the expiration of the appeal period.

All divorce cases that are placed on hold by request of one of the parties and that remain inactive for a period of 6 months will be dismissed unless there is a request to reactivate the case.

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Mediation Q & A

Q: What are the benefits of mediation?

A: With mediation you have a chance to present your ideas in an informal, private setting. It is a time for you to be heard and to listen to others. The mediator is impartial and trained to help you and the other party talk about your needs and differences so that you can work things out together. Mediation may help you reach agreements that will let you get on with your life and possibly keep you out of court in the future. By discussing your options in mediation you may discover choices you did not know you had. Mediation may help improve communications and permit the parties to find better ways to deal with this conflict. Costs associated with mediation may be lower than those experienced for prolonged litigation.

Q: How do I prepare for mediation?

A: Mediation deals not only with the legal issues but also with underlying relational issues that are important to you. It is important to come to the mediation session with an open mind, ready to consider new options that may not have been raised previously. It is also important to be willing to work together towards reaching an understanding that would be acceptable to each of you.

Q: Who are the mediators?

A: The mediators are individuals who have been trained or certified by the court based on their training and mediation experience. The courts maintain a list of available mediators.

Q: What happens during mediation?

A: At the start of a mediation session, the mediator will explain how mediation works and will answer your questions. The mediator will ask each of you to state your views, express your feelings, and describe what you would like to have happen in your case. The mediator will then help you explore ways to resolve the matter in a way that is acceptable to each of you. The mediator may ask to meet with you alone so you can talk more comfortably. If an agreement is reached, it will be put in writing and signed by all parties. Later, the agreement will be presented to the judge who will review it and then issue a court order approving the agreement. If an agreement cannot be reached between the parties, or if one or more of the parties fails to follow through with the mediation session, the court will hear the case in a regular court hearing.

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Parenting Petition

For the courts in New Hampshire to have jurisdiction (the authority to hear a case and render a decision) over a parenting petition, one of the following must apply: 1) both parents must live in New Hampshire, 2) the petitioner (person who initiates the parenting action) must have lived in New Hampshire for at least one year; or 3) the petitioner lives in New Hampshire and the other parent can be served with papers in New Hampshire. A Decree on Parenting Petition is filed with the court.

If both parents agree to file a parenting action, even if they do not agree on a parenting plan or child support, they can file a Joint Parenting Petition, together with a Personal Data Sheet.

For cases in which only one parent wants to file the Parenting Petition along with the parenting petition, this parent must also file a Personal Data Sheet. As in the initial divorce filing, the nonfiling parent is entitled to receive actual notice of this filing from the petitioning parent.

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First Appearance

After a parenting petition is filed, a First Appearance session is held within 30 days after service has been accomplished in divorces in which there are minor children. Both parents are required to attend. The judge or master will explain the court process. Included in this session is information about the Child Impact Seminar, Parenting Plans, Financial Affidavits, the Decree on Parenting Petition, Uniform Support Orders, and Child Support Guidelines Worksheet.

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The Parental Rights and Responsibilities Act

The Parental Rights and Responsibilities Act went into effect in 2005. This act is intended to change the focus on �winners and losers� among divorcing parents with minor children into a less adversarial system that will serve the best interests of the minor children, first and foremost. The New Hampshire laws have, therefore, retired words such as �sole physical custody� in favor of more neutral terms such as �residential responsibility� to explain where the children live. The term �custody� is now referred to �parental rights and responsibilities;� �decision-making responsibility replaces �legal custody,� and �parenting schedule� replaces �visitation schedule.� The goal is for parents to cooperate in developing parenting plans that define how they will co-parent during the remainder of the years their children are minors.

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Child Impact Seminar

In any action involving parents of minor children, New Hampshire requires both parents to attend the Child Impact Seminar as soon as possible after the filing of the divorce petition, but no later than 45 days after the Respondent has been served with notice of the filing. The seminar addresses the impact of divorce and separation on children. No permanent agreement will be ordered until both parents complete the seminar and present their certificates to the court.

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Parenting Plans

New Hampshire requires that Parenting Plans be filed in all divorce and legal separation actions in which there are minor children. Parents are to work together to agree upon on as many of the parenting plan provisions as possible. Exceptions to the requirement that parents work together in developing the parenting plan include situations in which there is evidence of domestic violence, child abuse or neglect, or in which it is otherwise excused by the court.

A temporary parenting plan can be ordered by the court to remain in place during the divorce proceedings until a final plan is ordered. After the divorce is final, it is possible to make changes by petitioning the court to modify the final plan. For all temporary and final hearings, the court expects the parties to file a joint parenting plan that includes all provisions to which they agree, although the parties can file separate agreements for provisions in dispute. Parenting plans must be filed with every petition to modify a parenting-related order. Parties may use the court's form for preparing the parenting plan or create their own, using the same numbering system as set forth in the court's form.

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Following is the Standard Order of Paragraphs for a Parenting Plan

a. Decision-making responsibility
   i. major decisions
   ii. day-to-day decisions
   iii. other
b. Residential Responsibility and Parenting
c. Schedule
   i. Routine Schedule
   ii. Holiday and Birthday Planning
   iii. Three-Day Weekends
   iv. Vacations
   v. Supervised Parenting Time
   vi. Other Parental Responsibilities
d. Legal Residence of a Child for School Attendance
e. Transportation and Exchange of Children
f. Information Sharing and Access, Including Telephone and Electronic Access
   i. Parent-child telephone contact
   ii. Parent-child written contact
g. Relocation of a Child's Residence
h. Procedure for Review and Adjustment of a Parenting Program
i. Methods for Resolving Disputes
j. Other Parenting Agreements Attached.

Subject to the mediation rules, either of the parties may request a temporary hearing. Seven days before the temporary hearing is to occur, both parties are to file and exchange financial affidavits, proposed temporary decrees, and proposed parenting plans.

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Guardians Ad Litem

In divorce cases, a guardian ad litem is an individual appointed by the court to represent the best interests of minor children when parents are unable to agree on matters like custody or visitation or when there are family situations that adversely affect minors' welfare such as abuse, neglect, juvenile delinquency, or domestic violence. The guardian ad litem investigates the issues in dispute and prepares a written recommendation to assist the court by determining the arrangements most beneficial for the minor(s) rather than for either or both of the parents. The judge makes the final decision using the recommendations along with other evidence in the case.

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