Marianna Barbowski

Child Custody and the Guardian ad Litem

December 12, 2016 By Marianna Barbowski

The U.S. has laws designed to protect children, who are presumed to lack well-formed judgment. In divorce cases that go to court, a parent cannot represent a child’s interests, and a parent’s interests may even conflict with the best interests of the child. In these cases the court will appoint a “guardian ad litem”(GAL) to act in the child’s best interests during the trial and provide reasoned advice from an independent individual who does not owe allegiance to either party. (Ad litem is a Latin term meaning “for the lawsuit.”)

Some states require that GALs be attorneys; in other states, lay people are eligible to volunteer as GALs, subject to GAL training and certification. Note: a GAL is appointed solely for the court proceedings, and is not a “guardian” appointed to manage a child’s interests in general. The appointed GAL participates, as appropriate, in pre-trial conferences, mediation and negotiations. The guardian has authority to conduct an independent investigation to ascertain the facts of the case, to investigate the child’s family background, and to meet and interview the child and the parents face-to-face. In court, GALs can cross-examine witnesses called by the parents’ attorneys and can call their own witnesses.

Other GAL duties may include:

Advising the child, in terms the child can understand, of the nature of the court process, the child’s rights, the role of the GAL, and the potential outcome of the legal action.
File appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is represented by a guardian ad litem in any appeal
Advise the child, in terms the child can understand, of the court’s decision and its consequences for the child and others in the child’s life.

In some states, GALs make recommendations to the judge as to how they think child custody should be decided in the child’s best interests—not necessarily according to what the child prefers, if he or she is old enough to have an opinion. Usually the child does not appear in court, but if the child is to testify, the GAL will help prepare the child when necessary and appropriate.

There is no attorney client privilege between the GAL and the parent, so nothing that is said is privileged and it can be shared.

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, annulments, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Why A Do-It-Yourself Divorce Is A Bad Idea

December 5, 2016 By Marianna Barbowski

When people decided to try a do-it-yourself divorce, they will probably fail, and end up turning to an attorney for help in negotiating and successfully concluding their divorces. This is not just a sales pitch from an experienced divorce attorney. A do-it-yourself divorce is a bad idea, for many cogent and sensible reasons.

First of all, “do you have the time and temperament to research your state’s law, gather the documentation, and follow through with court filings and appearances?” asks divorcenet.com.

Remember, you will most likely be on an emotional roller coaster at the same time, even when both spouses agree on the divorce. You may forget important things when drafting your divorce agreement. What about both spouses’ pension benefits? Social Security benefits? Health insurance? When you have a dispassionate attorney who is familiar with all of the ins and outs of divorce, you will be able to turn over the complex details and take care of yourself instead.

Getting a divorce is challenging and draining, and negotiations can take a long time. Doing it yourself, you will be in danger of agreeing to unfavorable terms, or giving up too much of what you feel is essential to you, just to get it over with.

In a do-it-yourself divorce, warns consumer advice website superpages.com, you have no one to protect your legal rights. You may not be fully aware of what your rights are, and what you are entitled to under the law. When you hire an attorney, the attorney takes on a fiduciary duty to work in your best interest during the divorce process.

Are you sure that you understand what property and/or alimony you are legally entitled to? Do you know what community property is? There are rules in law regarding the division of assets. If you decided on a do-it-yourself divorce, and you’re not aware of these rules, you may agree to a divorce that gives you less than what you might have been entitled to.

In terms of your own financial interests, it’s worth it to invest in hiring an attorney. If you have crafted your own agreement, be sure to ask an attorney to look at it, a step that won’t cost you much, and that could save you’re a lot of money at all in the long run.

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Advice for Your Divorce Negotiations

November 30, 2016 By Marianna Barbowski

Divorce is likely to be the largest financial transaction of many people’s lives, and it’s a highly emotional time as well—a time when, says Bruce Fraser of bankrate.com, “Anger, greed, sloth, pride, lust, envy and gluttony are all part of the ugly undertow in any negotiations involving divorce.” Even if you’re not dealing with deadly sins, be sure to work with an experienced divorce attorney whom you trust to conduct these often-difficult financial and property division negotiations on your behalf.

It’s a good idea to prepare for the divorce negotiations by knowing as much as you can about your financial situation at the start. You will be able to support our attorney in making the best case possible for the results you want to achieve. Here are some thoughts on how you can improve the negotiation process and results:

First, get organized. “Ascertain your total assets and debts. Make copies of all your financial records, including bank and investment statements, tax returns, insurance policies, deeds and so forth,” said Fraser. . Do your homework. Ask your attorney to educate you about the laws that will apply to your situation. Understand your rights and obligations under the law.

Be clear in your mind about what you want to achieve. Is it time for a reality check? “Make sure that you are not the one who is being unreasonable,” advises Karen Covy in the Huffington Post.

Separate your emotions from the negotiation process if you possible can. Your attorney can help you see things clearly and calmly. Think also about what your spouse likely wants and needs, to make it easier to get to “win-win” and even to be amicable.

Custody and visitation agreements of your children are very important. Judge care about children, and will think long and hard about what you propose and what is best for the kids.

Know how much income you will need, and develop a budget to help guide you. Know what you want, and what is most important to you, and what you could trade off to compromise. Don’t short-change yourself; life after divorce means paying bills on your own.

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Mental Health Issues and Divorce in New Hampshire

November 26, 2016 By Marianna Barbowski

In an age of no-fault divorce, you don’t need reasons (grounds) to choose to divorce. You’re not required to prove that the person you’re divorcing did something that caused the end of your marriage. Many states, including New Hampshire, however, still allow fault-based divorces, where one or both spouses need to prove that the other is to blame for the failure of the marriage. Grounds for divorce can include adultery, extreme physical or mental cruelty, desertion, and substance abuse.

Mental health problems in either spouse or in both can place huge pressures on a marriage. When a mentally ill or “insane” spouse is involved in a divorce, New Hampshire law allows a court to appoint a guardian to represent the person’s interests. However, the person’s mental condition cannot be used as a way to delay or prevent the divorce process.

In many states, insanity and severe mental illness are accepted as grounds for divorce. While a spouse’s mental instability can support grounds of extreme cruelty in a fault divorce, in New Hampshire, severe mental illness (such as schizophrenia) is not considered grounds for divorce.

Mental health problems do, however, figure in a New Hampshire court’s consideration of child custody and visitation. If a court concludes that a parent’s mental illness is so severe that it would endanger the child to be alone with the parent, it can order supervised visitation, that is, contact only in the presence of a third party. When a parent’s mental illness is very severe and ongoing, a court can determine that the parent is unfit, and can terminate parental rights, but only if it’s proven necessary beyond a reasonable doubt.

Mental illness can also affect alimony (spousal support) and the division of property. The needs of the mentally ill spouse who is unable to be employed may be a reason to award a greater amount of alimony to that spouse.

According to Lisa Sandford, writing in the New Hampshire Bar’s Bar News, “Dealing with the complicated issues surrounding a divorce or child custody case is difficult for any litigant. But those who suffer from mental illness – in any form and to any degree – face the added challenge of overcoming the stigma attached to their illness so they can get a fair day in court.”

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Abandonment and Divorce Law in New Hampshire

November 23, 2016 By Marianna Barbowski

The words “abandonment” and “desertion” have negative connotations. In the context of marriage and divorce, they can sound like dramatic words that belong in a Victorian novel. In fact, desertion, abandonment, or “refusal to cohabit” were once used as a fault constituting grounds for divorce. With the advent of no-fault divorce, however, New Hampshire has eliminated abandonment as a fault ground in divorce.

Abandonment refers to any situation where one spouse has moved out. It may not be a permanent decision, and it may be a wise solution to a situation of distress and danger in the family home. Some spouses may want to leave a marriage that is breaking down, but may be concerned, thinking that moving out of the shared home constitutes abandonment or desertion that will serve them badly in the following divorce. That won’t happen these days. In New Hampshire, 90 percent of divorces are “no-fault,” which means that one spouse or both are citing “irreconcilable differences leading to an irremediable breakdown of the marriage” as the reason for divorcing.

In some cases, such as adultery, some spouses may seek a fault divorce on the grounds of desertion as “a moral vindication because they can say, ‘He or she left, he or she does not pay, and I didn’t do anything wrong to make it happen.’” In New Hampshire today, the abandonment has to continue for two years or longer, and requires the willful desire or the intent to desert and the cutting off of the marital relationship. Simply moving out of a marital home for a while, particularly to a nearby location, does not constitute a fault ground of abandonment. In some cases, a person may be advised to pursue leave the home when the safety of the spouse or children is in question due to the misconduct of the other spouse; this is called “constructive desertion.”

The 10 percent who choose to divorce on a fault ground usually seek an unequal division of marital property, where the “innocent” party may be entitled to a larger share. Proving fault in New Hampshire and generally can be costly, and may require hiring investigators and others, and going to trial, warns divorcenet.com.

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Marriage Annulment Laws in New Hampshire

November 21, 2016 By Marianna Barbowski

Many people are familiar with the concept of a religious annulment, granted by a church or clergy, which undoes a marriage as if the marriage had never existed. A religious annulment, however, does not affect the legal status of a marriage. The court process of an annulment ends a marriage legally, like a divorce.

The difference between a divorce and a legal annulment is that, while a divorce process divides the divorcing couple’s assets and deals with family consequences of the divorce, an annulment wipes the slate clean in the eyes of the law. No division of assets takes place. Not unlike a religious annulment, it dissolves a marriage as if the spouses had never been married, while a conventional divorce will remain as part of the spouses’ legal records.

In New Hampshire, the grounds for getting an annulment are limited under New Hampshire law, Title XLIII, Chapter 487. The state will grant a legal annulment if your marriage meets one of the conditions for a “prohibited marriage” under the law:

A partner or both partners in the marriage are minors (younger than 18 in New Hampshire), and the parent or guardian did not consent to the marriage.
The marriage was the result of fraud or lies, and one party feels he or she was deceived into the marriage, or was intimidated by threats.
The marriage was illegal under New Hampshire law from the start. For example, the spouses were too closely related, or one spouse was still married to another person. New Hampshire’s laws did not require modification when the U.S. Supreme Court ruled in 2015 that same-sex marriage is legal and protected by the Constitution.

If you wish to pursue an annulment of your marriage in New Hampshire, you must file a “Petition to Annul Marriage,” which can be downloaded from the New Hampshire State Court website. The petition form asks you to provide basic information about yourself, your spouse, your children, your marriage, and your reason for seeking an annulment. Your petition must be “served” to your spouse, meaning that an adult other than yourself must hand-deliver it to your spouse. When you and your spouse agree to the annulment, a judge can grant it without a hearing.

It sounds simple, but an annulment can be tricky to conclude. If one spouse serves the other with a petition to annul, and the other spouse does not agree, the petitioner needs to gather evidence to prove the validity of the petition. This is where you will be wise to seek advice from an experienced family law attorney. A hearing will be scheduled.

When a judge grants an annulment, any children of your annulled marriage remain legitimate.

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