Legal News & Updates

Older Adults and “Gray Divorce”

November 7, 2016 By Marianna Barbowski

According to a study from Bowling Green State University, the divorce rate for U.S. adults ages 50 and older doubled in the 20 years between 1990 and 2010. When you divorce later in life, unfortunately, you have less time to recover from the economic hit. According to AP,” While the challenges of a so-called ‘gray divorce’ are similar to those of a divorce at any age, factors like limited working years ahead, complicated assets, adult children may magnify the difficulties.”

Retirement: Your gray divorce will have an impact on whether you will have enough money for a secure retirement. Older adults, particularly women who have spent many years out of the workforce, are unlikely to recoup the financial losses associated with divorce, said Georgia financial planner Terri Munro (AP). Alimony is less common than it used to be. Fortunately, if you have been married for more than 10 years, you’re entitled to half of your ex-spouse’s Social Security benefits.

Other routes to financial survival could be to delay retirement if you are working, returning to the workforce if you are not, downsizing your living quarters, and making major lifestyle adjustments. You may no longer be able to pay for your grown kids’ graduate school or weddings. You may decide to keep your house in your divorce agreement, and rent out rooms. You may decide to make ends meet by joining the “gig economy” and, for example, driving for Uber.

Your Home: Who will get the house? Although you may be emotionally attached to your home and its memories, keeping it may not be the best financial solution for you. Selling a home could provide a chunk of income for the years ahead, and living in a smaller home or apartment can reduce your costs significantly.

Women tend to want to get the divorce over with fast, and may not take the time to understand the financial implications. If this describes you, be sure to ask your divorce attorney for help in figuring out the best way to approach your divorce. Divorce financial analyst Aviva Pinto advises women ending a higher net-worth marriage to consider hiring a forensic accountant to ensure all assets are discovered. Pinto told U.S. News, an expert might discover “you’re entitled to a lot more than what he’s put down on paper. Then you’re in a better bargaining position.”

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.

Media Sees Divorce as Entertainment & Humor

November 3, 2016 By Marianna Barbowski

The new HBO show “Divorce,” starring Sarah Jessica Parker, is a half-hour comedy. Dramas about divorce have a long history in film and television: think “Kramer vs. Kramer,” “Scenes From A Marriage”, and “An Unmarried Woman.” Audiences have a huge appetite for drama, and divorce stories provide plenty of it. As novelist Leo Tolstoy remarked, “All happy families are alike; each unhappy family is unhappy in its own way.” As any family law attorney will tell you, every divorce is different.

But a comedy? “What’s so funny about divorce?” asks the Los Angeles Times. “Marital strife, and infidelity in particular, are practically required of TV dramas aspiring to the “prestige” label,” comments the reviewer. “But making a half-hour comedy charting a breakup over potentially many seasons represents a number of unique creative challenges—not the least of which is how to find the humor in subjects as grim as alimony and custody disputes.”

To which one might answer, have you never heard a single joke about divorce? Poking fun at marriage, marital strife, infidelity and break-ups is a time-honored source of humor in American culture. The divorce jokes may be disconcerting, even bitter, but they elicit willing or unwilling laughter. Google “divorce humor” and you will see countless websites devoted to divorce jokes.

Some divorce mediators maintain that natural, unforced humor or funny stories are keys to relieving stressful emotions and reminding divorcing spouses of their shared humanity, easing the negotiation process. Humor is a powerful tool for managing conflict and reducing tension when emotions are running high. It facilitates communication, and creates a sense of connection that can help people, even divorcing spouses, get past conflicts and take a different view of matters.

A TV comedy about divorce could even help viewers in their own, real situations. “There was a time when we talked about normal lives, and we found all sorts of virtue in those stories,” Parker, who is also an executive producer on “Divorce,” told the L.A. Times. “I was really curious about exploring marriage and everything that meant, … looking for something that was neither fish nor fowl, that sat in a world between comedy and drama. … It was incumbent upon us to find the humor.”

The Advantages of Uncontested Divorces

October 31, 2016 By Marianna Barbowski

There are two kinds of divorce: contested and uncontested, and the kind of divorce you go through will make a big difference in the length, complexity, and cost of the process. In a contested divorce, the parties cannot agree about getting divorced or about the terms of the divorce, such as child custody, division of assets, or alimony.  In an uncontested divorce, the spouses agree on everything and do not need a court to make such important decisions for them. Clearly, the uncontested divorce will be simpler, faster, and less expensive, and it is the way the majority of people in the U.S. get divorced.

You and your soon to be ex-spouse may have a lot of emotions and disagreements about the issues in your divorce, but cooler heads often prevail when both of you consider the costs involved in fighting. “Uncontested” does not mean that both must agree on all the divorce terms, but rather, that both are willing to negotiate and even sacrifice some of their wishes for the good of the entire family. You may need to negotiate for a while, and even go to mediation or hire attorneys to help you reach agreement. In the end, the financial argument for the uncontested process is quite compelling.

Lower costs and a shorter time are the primary advantage of an uncontested divorce, but it has other positive results as well. Among the many advantages of an uncontested divorce is that it takes place in private. Although your legal agreement will be part of the public record, but your disclosures, proposals and negotiations will remain private (divorceinfo.com). Along with your privacy, you will keep your dignity by avoiding a combative stance and public disclosure of your grievances.

An uncontested divorce is less stressful for your children, especially when you can resolve custody decisions together or through mediation. Divorce is confusing and sad enough for your children without having to witness your anger and conflicts.

You may sue for divorce thinking that the proceeding will be uncontested, but discover later that your spouse has decided to contest, or fight, the case. If this happens, you need to consult an attorney; your risks will be much greater if you proceed on your own.

A Trend for Reform in Child Custody Laws

October 27, 2016 By Marianna Barbowski

It’s been about 40 years since the majority of mothers stayed home. Married fathers in the 21^st century spend twice as much time caring for their children as they did in 1975. Today’s trend is to give both parents as much time as possible with their children post-divorce. Divorce law is continually evolving, often in accordance with changing social trends. In the past year or so, 20 states have been considering changes to custody laws to give fathers greater rights to their children following a divorce.

A new, 10-year NIH study found the children who spend more time with their fathers grow up to be healthier mentally and physically, with less depression, anxiety, delinquency or substance abuse problems.

In New York and Washington state, judges are now required to grant equal parenting time unless there is proof that such an arrangement is not in the child’s best interest. Utah’s new law increases the amount of weekly time the non-custodial parent spends with the child, and almost doubles the number of overnights from 80 to 145. Colorado, Florida, Maryland, Massachusetts and Missouri are considering requiring judges to presume that it’s best for children to split their time as evenly as possible between their two parents.

According to the Wall Street Journal, the “National Parents Organization Shared Parenting Report Card revealed that, nationwide, the custody laws in the U.S. do a poor job or promoting shared parenting. These developments coincide with the publication of a study in Sweden that shows the benefits of shared parenting. Last month, researchers found that children that spend time living with both separated parents are less stressed than those that live with just one.

Not all legal observers, however, agree with the growing trend, according to the Pew Trusts. Laws that encourage shared parenting may sound “seductive” to state lawmakers, but they often force families into bad situations, said Maritza Karmely, a professor at Suffolk University Law School in Boston. Bar associations, judges and lawyers have come out against some of the proposals. “A presumption is a pretty radical step,” Karmely said. “That assumes that shared parenting works for most families, and I think that is an enormous assumption.”

Outdated Adultery Crime Laws Still Exist in 60% of States

October 26, 2016 By Marianna Barbowski

New Hampshire decriminalized adultery in 2016, after 200 years of NH law that made it a crime. NH opponents of adultery prohibition argued, “Who we love and how we love is not something . . . the state has much business meddling in.” However, adultery remains relevant to divorce in the state as a ground for fault. A fault divorce is granted in New Hampshire only when one party is innocent; if both spouses had affairs, they cannot use adultery as a fault ground, and may need to get a no-fault divorce.

New Hampshire has caught up with the 21^st century, but what about the rest of the U.S.? According to the Los Angeles Times, adultery is still illegal in 21 states, including New York, where former Governor David Patterson admitted to extramarital relationships in 2008, but said he “didn’t break the law.” Well, Governor, in New York, the state you ran, adultery is still a misdemeanor, punishable by a $500 fine or 90 days in jail. Fortunately for the guv, the law is rarely, if ever, enforced.

Today’s tolerant attitudes strongly suggest that it’s time to take the adultery criminal laws off the books. Only a third of Americans believe that adultery should be a crime. Why do any states retain the outdated laws? The L.A. Times quoted legal scholar Thurmond Arnold’s observation, ““Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.”

Prosecutions for adultery are rare, but they do occur, and could arise in any of the 21 states that still have criminal prohibitions on adultery. Most contemporary adultery prosecutions have involved complaints by an aggrieved spouse. A recent article in favor of reform in salon.com argued, “enforcement of criminal prohibitions has been infrequent, intrusive, idiosyncratic, and ineffectual, and should be unconstitutional.” Courts should not allow adultery to influence employment cases as a basis for demotion or firing, nor influence alimony and custody awards. The writers noted, “None of these reforms should be seen as diminishing societal respect for marriage as an institution.”

Women, Divorce and Insurance

October 24, 2016 By Marianna Barbowski

Women who are going through financially complex divorces are often in states of emotional distress and confusion about what the future may hold. If you are getting divorced from your spouse, you need to be sure to consult your attorney and the financial advisers who are working on your behalf. Your insurance policies are probably not uppermost in your mind. Your advisors will remind you, however, that insurance coverage for yourself and your children, if you have any, should not be overlooked in the final divorce agreement. It can be financially significant.

You can stay on your ex-husband’s health insurance using COBRA coverage, but COBRA lasts only 36 months. It’s a good idea to buy your own health insurance before it runs out.

If your ex is the higher earner and paying alimony and child support, these payments will end with his death. You would be wise to buy a life insurance policy on him in order to secure this important income. According to an adviser writing in Forbes, “If your husband refuses to cooperate in getting the required medical exam or if he is uninsurable due to health or other reasons, you need to know this before the divorce is finalized, so you can find an alternate way of securing your divorce settlement payments.”

Your ex’s social security is a form of insurance, and you can receive half of the payments if you are older than 62 and were married for more than 10 years. If your ex predeceases you, you are eligible for the entire benefit, as well as any of his children under the age of 18.

It’s a good idea for you to purchase disability insurance in case you become unable to work (or your ex, if you are relying on him for support). “If you are relying on employment income for yourself, or your ex-spouse for maintenance and/or child support, a disability policy can be essential should an employment income source no longer be available due to disability,” advises the Association of Divorce Financial Planners.

After one spouse moves out of the joint residence, that person is no longer covered for liability by her former homeowner’s or renter’s insurance. Be sure you are the “Named Insured,” and if you are not, you need to ensure that you are covered. When you purchase your own policy, you can reduce the cost by buying “replacement cost coverage” or increasing the amount of your deductible.

When you divorce, your vehicle is no longer covered by your ex’s car insurance. Be sure you have your own coverage. Women who have relied on their exes for taking care of their vehicle may want to be sure to purchase insurance for towing and roadside assistance.

How to Minimize the Impact of Divorce on Your Kids

October 20, 2016 By Marianna Barbowski

The accepted wisdom is that one of the most challenging consequences of divorce is the disruption and upheaval it can bring about for the children of divorcing parents. Known effects of divorce on children are adjustment and behavioral problems resulting from long periods of stress and interrupted routines (children-and-divorce.com). Psychologist Carl Pickhardt, (U.S. News & World Report) said, “Obviously kids have a certain amount of despondency because of the loss – they’ve lost the intact family. …There’s usually some anger, because there’s been a violation. …How does the kid manage their despondency, their anxiety, their anger and their stress?”

Most researchers agree that it is the nature of the divorcing parents’ relationship that has the greatest impact on how poorly or how well their kids will navigate the inevitable emotions and adjustments that come with this major event in their lives. It is not the divorce itself that affects children negatively, but rather their feelings of uncertainty about what will happen after the divorce, the level of conflict between the parents and the nature of their relationships with their parents after the divorce. According to Pickhardt, parents must reconcile their emotional differences to create a workable relationship to provide stability for their children.

Results of a recent study are encouraging: these issues become easier to deal with after four to nine months, although parents must remain alert to signs of longer-term psychological issues. Children “may need informal support or therapy to prevent further progression of depressive symptoms and the development of more serious mental health problems,” said researcher Jennifer O’Loughlin, professor at the University of Montreal, in a statement.

Parents’ divorces also have an impact on their adult children, even after they have left home, according to AARP. Parents who “try to resolve the conflict instead of carrying it around like baggage ” teach their children that no relationship is without struggles, says Christine R. Keeports, a Ph.D. psychology student at Northern Illinois University, and “the kids are better off” in their own dealing with conflicts. AARP also interviewed Jenny Kutner, a millennial who has written about being a child of a later-life divorce. She “came to believe that all family members grieve a divorce, even if they don’t show it, and do so differently. …I was not outwardly upset because … I wouldn’t have been able to do my job, which is something as an adult I have to do.”

Kutner also noted that she and her sister unwillingly became “adult confidants” who served as a sounding board for both parents and provided emotional support for them. Instead, the experts advise, parents should do their best to resolve their conflicts by themselves, and make themselves accessible to listen and talk with their kids about the impact of the divorce.

Divorce in New Hampshire: How to Protect Your Assets

October 13, 2016 By Marianna Barbowski

In a divorce, money is often a contentious issue. Romance aside, common sense says both spouses should think ahead about how to protect each one’s assets in case of a future divorce. “A prenuptial agreement makes the process more predictable and something akin to an insurance policy for divorce,” advised New Hampshire magazine. “Some people put off a prenuptial agreement because they’re too busy,” or for other reasons, such as a shortsighted reluctance to break the starry-eyed mood.

In the absence of a prenup, when you do decide to divorce, your first and most important step will be to hire an experienced divorce attorney. In most cases, your lawyer can help you avoid litigation by negotiating, mediation, or a collaborative approach that includes protecting each spouse’s own assets.

New Hampshire is an “equitable distribution” state (equitable meaning fair and impartial), like most of the states east of the Mississippi (The western states favor “community property,” where all property is divided 50-50.) Under New Hampshire law, the court regards everything you own as “marital property” that will be divided 50-50. That is the starting point for equitable distribution. A 50-50 split, however, is not always fair. Do you really want to divide the heirloom family silver that you brought into the marriage?

In New Hampshire, property will be divided between divorcing spouses in a way that is equitable. You will have an opportunity to divide your own property during the divorce if you can work with your soon-to-be-ex-spouse and your spouse’s attorney. If that isn’t an option, you and your attorney will be able to explain to the court why an unequal distribution is more equitable.

The court considers a multitude of factors in determining the equitable distribution of your marital property, including the length of the marriage, the value of your joint property, each spouse’s economic status (income disparity), and whether one party is at fault for the divorce .

According to the New Hampshire Bar Association, the state recognizes that certain assets acquired prior to a marriage are not equally divisible at divorce (e.g., the family silver). In a short-term marriage, both spouses will be returned, as nearly as possible, to the same financial position they were in prior to the marriage.

Grandparent Visitation and New Hampshire Divorce Law

October 10, 2016 By Marianna Barbowski

In some divorces, amidst all the family pain and disruption, one or both spouses may decide to prevent grandparents from seeing their grandchildren, no matter how the children or the grandparents feel about the interrupted relationships. The American Grandparents Association^TM (AGA), founded by grandparents.com, quoted Richard Kent, author of Solomon’s Choice: A Guide to Custody for Ex-Husbands, Spurned Partners, & Forgotten Grandparents: “The state of grandparents’ rights is terrible. … Even if they had what most people would consider a classic grandparent-grandchild relationship and, let’s say, saw their grandchild every Sunday afternoon … they are treated no differently than strangers.”

Grandparents’ visitation rights have long been a murky area of the law, rarely recognized as deserving of legal protection. Although grandparents’ rights are not considered to be constitutional, in recent years state legislatures have passed statutes that allow court-mandated visitation for grandparents. Courts in every jurisdiction must consider the best interests of the child when granting custody or visitation rights to a grandparent.

Grandparent visitation rights vary from state to state, and New Hampshire is considered to be one of the more restrictive states. In NH, natural and adoptive grandparents can petition the court for “reasonable” visitation with a grandchild when that grandchild’s parents are unmarried, divorced or separated, or when one parent is deceased or has given up or lost parental rights.

Grandparents can petition a court for visitation rights when a child lacks a nuclear family as long as their access to the child hadn’t been restricted earlier. If the parent of the minor child is unwed, then any grandparent filing a petition for visitation must attach proof of legitimation by the parent or establishment of paternity to the petition for visitation. When the grandchild lives in an intact “nuclear” family, and both parents deny access to the child, the grandparents do not have standing to file for visitation.

In New Hampshire, grandparents may sometimes enjoy rights to visitation even over the objection of the parents. Earlier this year, AP reported (Concord Monitor) that the New Hampshire Supreme Court ruled that a couple who sought visitation rights with their grandchildren four years after their son-in-law had died had the right to petition for visitation rights. A lower court had agreed with their daughter’s argument that they had no standing to petition, and the Supreme Court reversed that decision.

“As the number of grandparents serving as the primary caregivers for grandchildren continues to rise, it is likely that New Hampshire will see an increase in grandparent visitation issues in the years to come,” wrote Amy Goodridge in the New Hampshire Bar Association’s Bar News.

The Order of Protection and Your New Hampshire Divorce

October 6, 2016 By Marianna Barbowski

In some difficult divorce cases, you may require legal protection from a violent or abusive spouse or former spouse. Nearly 10 million women and men are physically abused by an intimate partner every year in the U.S., according to the National Coalition Against Domestic Violence.

When you are in danger of abuse, you have a right to a legal order of protection, also known as a protective restraining order. How do you get a legal protective order in New Hampshire? The process of obtaining your restraining order will be a lot less distressing when you have the help and support of an experienced attorney.

According to New Hampshire law (Chapter 173-B. Protection of Persons from Domestic Violence), the definition of abuse is when a family or household member, or current or former sexual or intimate partner commits or tries to commit one of certain crimes against you, and the behavior causes a present threat to the your safety. These crimes include assault, criminal threatening, sexual assault, stalking, kidnapping, destruction or threat of destruction to your property, criminal trespass, burglary, harassment, or cruelty to animals.

To obtain your order of protection from a court, you need to submit a notarized form providing information and describing why you need the order. Three types of protective orders are described by womenslaw.org:

If you are in immediate danger of domestic violence and the court is closed, call or go to the police, who will help you fill out the required forms and telephone a judge, who will issue your temporary (emergency) ex parte protective order. Your temporary order of protection remains in force until the end of the next business day that the court is open.

When you go to court to file for a protective order, if the judge believes there is an immediate, present danger of abuse, you can get a temporary ex parte protective order that will protect you until you have a full hearing.

Your final protection order requires a court hearing, where you and the abuser have a right to be present, and present testimony and evidence. Your attorney will prepare you for your court appearance. The purpose of the hearing is for the court to determine whether family violence has occurred and is likely to occur in the future. It can be frightening or intimidating to go before a court, but you are the one who knows the abuser and the situation best, and your lawyer will walk you through the process. The final order will last one year unless otherwise specified, and can be extended depending upon your circumstances.

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