Divorce and the Holidays

divorceThe holidays are here-and while it is typically a time of year that we all look forward to and enjoy celebrating with friends and family, it can also feel like a lonely season if you have gone (or are going) through a divorce.

While it is not easy to cope with the aftermath of a divorce, especially if children are involved, there are small steps that you can take to make this time of year as enjoyable as possible.

The following are a few things to keep in mind this holiday season if you are separated or divorced and have children:

  • Don’t set your expectations too high. If those expectations aren’t met, it will only lead to extreme disappointment. Set realistic expectations for yourself and how you will approach the holidays and time spent with your children.
  • If possible, speak with your ex-spouse and come to an agreement on how each of you will spend time with the children.
  • Understand that things aren’t going to be exactly like they were before the divorce. While tradition can be important to parents and children, now is the time to start new traditions. This will create a bit of a “normal” routine for you and the kids to look forward to each year.
  • Keep yourself busy and pre-occupied. Attend work holiday parties, friends’ holiday open houses; catch up with old friends, etc.

Although it may not feel like it now, there is a light at the end of the tunnel. If you are newly divorced, take it one day at a time and continue to stay involved in your children’s lives if you are allowed to do so. The kids may be having a difficult time, especially with the holidays in full swing, but like mentioned before, start new traditions for everyone to look forward to. Each year will get easier.

Divorce matters can be complex and overwhelming. Contacting an experienced family attorney is always the best first step. Please feel free to contact us at: (978) 681-5454 or Click Here to request a consultation.

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Determining Alimony in New Hampshire

alimonyDivorcing couples in New Hampshire often ask whether the issue of alimony should be addressed in their divorce.  Put simply, alimony is financial support paid by one spouse to the other for living expenses and reasonable necessities after a divorce. In New Hampshire, alimony is governed by NH RSA 458:19. Regardless of whether one spouse seeks alimony or both are looking to waive past and present alimony (New Hampshire laws do not allow parties to waive future alimony), the issue should always be addressed and made a part of the Final Decree.

When Will the Court Order Alimony?

In New Hampshire, the Court must make three findings before it will enter an alimony Order. The three criteria that must be met are the following:

1)      The party in need lacks sufficient income, property or both to provide for reasonable needs taking into account the lifestyle during the marriage;

2)      The party who will pay alimony is able to meet reasonable needs while paying the alimony, taking into account the lifestyle during his/her marriage; and

3)      The party in need is unable to be self-supporting through employment at a standard of living that meets reasonable needs.

Essentially, the court must find that the spouse seeking alimony needs it, and the spouse paying alimony can afford to pay it. The concept of “reasonable needs” is prevalent in this determination. The party to a divorce must understand that reasonable need is not based on what is the “reasonable need” to a citizen of New Hampshire. Rather, reasonable need is established on a case by case basis, and is determined by the standard of living that was established during the marriage in question.

How is Alimony Determined?

The alimony statute referenced above sets out specific factors that the court must consider when determining the amount of alimony to award. A Court will consider the following:

  • length of marriage;
  • the age, health, and social or economic status of each spouse;
  • each spouse’s occupation;
  • the amount of income for each spouse;
  • the property awarded to each spouse in the divorce;
  • the vocational skills and employability of each spouse;
  • the estate, liabilities, and needs of each spouse;
  • each spouse’s opportunity to acquire assets and earn income in the future;
  • the fault of either spouse in the divorce; and
  • the federal income tax consequences of the order.

There is no mathematical formula to determine alimony. The judge has broad discretion in determining how long the alimony award will last and the amount of the alimony that must be paid. The Court must set forth specific reasons for granting or denying alimony.

Regarding “fault,” although generally inadmissible in a no fault divorce, evidence of fault may be admissible on the issue of alimony, at the discretion of the court.  This means the court may factor in such things as adultery, extreme cruelty, habitual drunkenness, and abuse in determining an alimony award, even if the divorce is no fault.

Where do I start?

Divorce matters can be complex and overwhelming. Alimony is just one of the many complicated issues that the parties will encounter upon terminating their marriage. Contacting an experienced family attorney is always the best first step.

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Identifying the Immigration Consequences of Divorce

divorceGoing through a divorce, in and of itself, will bring with it a multitude of financial, emotional and personal issues and concerns.  Couples must deal with resolving issues relating to children, money, debts and assets.  Several unique issues will arise, however, when only one of the spouses in a divorce is a U.S. Citizen.  Divorce and Immigration practitioners alike must be aware of the impact that divorce will have on each spouse and must advise their clients accordingly.

  1. The U.S. Citizen Spouse.

Perhaps the biggest surprise to a divorcing U.S. Citizen spouse is the fact that their obligation to financially support their immigrant spouse does not end with a divorce. The U.S. Citizen will remain financially liable for support due to the fact that he or she signed an Affidavit of Support, Form I-864, when they petitioned for their spouse. When you sponsor an immigrant spouse, you promise the US government that you will financially support your spouse and that your spouse will not become a public charge, meaning that your spouse will not receive public assistance from the government.

If you fail to financially support the immigrant spouse after divorce, the immigrant spouse may sue for breach of contract, based on the Affidavit of Support. It is important to understand that the Affidavit of Support is indeed a contract, which is legally enforceable.  The financial support standard, however, would continue to be 125% of the Federal Poverty Guidelines for their household size, as required under the Affidavit of Support. The U.S. Citizen spouse will not need to worry about the potential of litigating the standards used in Family Court in determining an alimony award.  If successful, along with being awarded financial support of 125% of the Federal Poverty Guidelines, the immigrant spouse may also be awarded attorneys fees and interest.

Another concern is that the U.S. Citizen spouse also faces the potential of being sued by the U.S. Government. In many instances, the immigrant spouse in need of financial assistance chooses to receive assistance from public agencies rather than request it from the U.S. Citizen spouse.  In this scenario, the government is able to sue the sponsor and collect enough money to reimburse the agency that provided the benefits.

The financial obligation, of course, does not last forever. There are several triggers which will terminate the obligation.  They are: 1.) the immigrant spouse becomes a U.S. Citizen; 2) the immigrant spouse has worked, or can be credited with, 40 Quarters of coverage under the Social Security Act (approximately 10 years); 3) the immigrant spouse no longer has lawful permanent resident status and has departed the U.S.; 4) the immigrant spouse becomes subject to removal, but applies for and obtains in removal proceedings a new grant for adjustment of status, based on a new affidavit of support, if one is required; or 5) the immigrant spouse dies.

  1. The Immigrant Spouse Before Adjudication of the I-485 (Adjustment of Status)

The immigrant spouse may ordinarily obtain permanent resident status through the sponsorship of his or her U.S. Citizen spouse as a result of the marriage.  However, if the marriage is terminated through divorce or annulment and the Adjustment of Status application has not yet been granted, the immigrant spouse is no longer eligible to adjust status based on that marriage.  In essence, a divorce terminating the legal marriage also terminates the immigrant spouse’s eligibility for U.S. permanent resident status on the basis of that marriage. In this instance, the I-485, Adjustment of Status application will be denied. As such, the accompanying documents and obligations are also terminated (specifically, any obligation that would have arisen if the application to adjust status was allowed, i.e. the Affidavit of Support obligation).

  1. The Immigrant Spouse with Conditional Resident Status

If an immigrant spouse and U.S. citizen spouse obtain an approved Adjustment of status, yet have been married for less than two years, the immigrant spouse will be granted Conditional Residency.  The conditional residence status is granted for two years. In order to remove the conditions and be granted permanent resident status, the immigrant spouse and US citizen spouse must file jointly Form I-751, Petition to Remove the Conditions of Residence.  At that time, if the spouses are still married, and can prove the marriage is in good faith, then the immigrant spouse will receive permanent resident status. However, if the marriage was terminated prior to removing the conditions, then the immigrant spouse’s conditional permanent resident status may be revoked.

The divorced immigrant spouse who has conditional residency must now file his or her Petition to Remove Conditions on their own.  The immigrant spouse must request that a waiver of the joint filing requirement be granted. The conditional resident may file the application with waiver based on any of following: 1.) the marriage was entered in good faith, but the petitioning spouse is dead; 2.) the marriage was entered in good faith, but terminated through divorce or annulment; 3.) the marriage was entered in good faith, but the conditional resident was subject to extreme cruelty or battery; or 4.) the termination of conditional status and deportation would cause extreme hardship. If the immigrant spouse is able to prove any of the above, he or she will be granted permanent resident status. Regardless of the waiver option chosen, the immigrant spouse must be prepared to give detailed and extensive evidence supporting the request for waiver.

It is also important to note that the application to remove conditions must be filed during the 90 day period immediately before the conditional residency expires. However, if filing with waiver, the petition may be filed at any time between being granted conditional status and being removed from the United States.

  1. The Immigrant Spouse with Permanent Resident Status

In the situation where the immigrant spouse has already obtained Permanent Resident Status, he or she should not be concerned that the divorce will affect their immigration status.  At this point in the immigration process, it does not matter if the immigrant spouse is divorced or remains married.  Whether divorced or married, a lawful permanent resident can lose their status for numerous reasons, but not specifically due to obtaining the divorce.

One area, however, in which the divorce will affect the immigrant spouse is for naturalization purposes. Whereas the immigrant spouse who obtained their residency through marriage is eligible for naturalization after three years if still married to the U.S. citizen spouse, if a divorce is granted before becoming naturalized, he or she will instead have to wait five years to apply for citizenship.

Miguel Nieves is an attorney with Patricia S. Fernandez & Associates. Nieves is licensed in New Hampshire, Massachusetts and Maine practicing in Domestic Relations and Immigration.

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