Art. 98. In every case the court must take steps, before granting the legal separation, toward the reconciliation of the spouses, and must be fully satisfied that such reconciliation is highly improbable. (n)
EXPLANATION:
The court can issue temporary orders that outline specific actions that must take place immediately and last until the final legal separation hearing. Examples of things covered in temporary orders are child support, spousal support and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court. If found in contempt, you can be jailed or fined according to the discretion of the judge.
If you feel that the courts orders are unfair you may then file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders. You should not be surprised when the courts deny your motion. When the court denies your motion, you file an appeal with the state appellate court.
Marriages of short duration where there are no children or marital assets to split will see their way through the process rather quickly. If you have children and have accumulated assets during your marriage you should not be surprised when the divorce seems to turn into a long, drawn out and at times, frustrating process. Be patient because the Family Court system is hard at work trying to protect the interest of all parties involved in a divorce action.
WHAT IS THE FIRST STEP IN THE LEGAL SEPARATION PROCESS?
In our Family Court, the first step is an informational session called a“First Appearance.” At that session, the Court explains the divorce process to the parties. The attendance of attorneys is not required.
At the First Appearance, either spouse can request that the court schedule a hearing in order to issue preliminary orders which the parties must obey, pending the final divorce decree. Such “temporary orders” are decided by the court at a temporary hearing. The issues which may be decided at a temporary hearing include: interim parental responsibility for the children; support payments for children and/or a spouse; continuation of life and medical insurance coverage; temporary use and possession of the family home, furnishings, automobile and other property; restraining orders regarding transferring or disposing of property; restraining orders preventing one spouse from interfering with the peace or liberty of the other. The temporary orders are in force until changed by agreement approved by the court, or until a further court order.
The parties must submit their income and expense information, under oath, for a temporary hearing. That information is used by the court to decide child support, alimony, and the general allocation of temporary financial responsibility between the parties. Actual testimony is not offered at a temporary hearing. Instead, each party makes a presentation to the court. The temporary orders are then decided by the court. Alternatively, temporary orders can also be established by written agreement, signed by the parties, and approved by the court. In the event of such a temporary agreement, a hearing is not necessary.
HOW IS THE FINAL LEGAL SEPARATION DECREE DECIDED?
If the parties voluntarily enter into written agreement setting out the final terms of the divorce, a formal final hearing is not necessary. However, if the parties cannot agree, the contested issues will be left for the court to decide after hearing the evidence at a final hearing.
The final hearing is conducted in the courtroom before a Marital Master who hears and decides the case. Separation matters are not heard by a jury. At the final hearing each party offers evidence for his or her case, such as testimony of the parties, testimony of witnesses, testimony of accountants or appraisers, as well as non-testimonial evidence such as financial records, business records, etc. All witnesses are subject to examination and cross-examination by both sides. Each party is again required to submit, under oath, an up-to-date financial affidavit. Also, each party makes its written recommendation to the court as to what the court should order. Each party has the opportunity to present the law in support of the outcome it considers proper.
After the hearing, the court will let the parties know its decision by mail. There is no waiting period for the divorce to become effective. The appeal of any final divorce decree can only be made to the New Hampshire Supreme Court.
PARENTAL RESPONSIBILITY
The law requires that divorced parents make every reasonable effort to co-parent their children harmoniously.
Parental responsibility takes two forms in a divorce: decision-making and residential. The first involves the right to participate in parental decisions. The second involves the physical presence of the child. Joint decision making responsibility is presumed by the court to be in the child’s best interests, unless proven otherwise. Residential responsibility involves scheduling the child’s time with each parent. Unless the parties can agree, the parental responsibility of a child is determined by the court, after consideration of the evidence, based on the child’s best interests.
When there is a disagreement on issues affecting a child, the court may appoint a guardian ad litem to represent the interests of the child. This person speaks to the parties and others having relevant information, and submits a report making a recommendation on parental responsibilities to assist the court in determining what is in the child’s best interests. The court may consider the child’s preferences, if the court concludes that the child is capable of mature judgment in that regard.
After the final residential responsibility determination, unless the parties mutually agree to a change of custody, the court will not change physical custody unless the evidence establishes a strong possibility that the child will be harmed if the present living arrangements were to continue.
The same issues addressed during the legal separation process are also addressed in a legal separation agreement. A legal separation can protect your interests until the decision is made to file for divorce. The separation agreement also sets a precedence for the divorce that may follow. If you divorce after a separation and your case goes to court, a judge is likely to assume that since you were satisfied with the legal separation agreement, the agreement should carry over to the divorce settlement agreement. For that reason, it is important that you come to a separation agreement you can live with long term.
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