Vacating the Marital Home During the Divorce

divorce.pngIt can be surprising for a divorce client to learn that both spouses in a divorce may reside in the marital home while the action is pending.  Many people mistakenly believe that once a divorce complaint is filed, one spouse must leave the home as a matter of course.  To the contrary, for one spouse to force the other to vacate the marital home through an order of the Court, they must meet a high standard.

Understandably, it is difficult for two spouses to live together amicably during a divorce.  Many times it is a financial necessity that each knows they must endure.  Other times, spouses will refuse to move out due to their belief that it could put them at a disadvantage in the divorce. Whatever the reason may be, divorcing spouses need to understand that they cannot force their spouse out of the home because of simple annoyance or aggravation.  Living in an unpleasant situation with daily tension will likely not be enough to convince a Court that you should have sole and exclusive use of your home during the divorce.

The best route for one spouse to vacate the marital home would be to do so by agreement. If it is financially feasible, two reasonable parties should determine who will leave and who will stay. The parties should take into account who will be able to afford the home on their own during and after the divorce, and more importantly, how it affects the children, if any are involved.  In most situations, it is in the child’s best interest to stay in the home, or at the very least in the same school district.

Still, some parties simply cannot agree on who should move out. If this is the case, a court will only order one spouse to vacate if, pursuant to M.G.L. ch. 208 § 34B, “the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.”  Furthermore, the Court only has the power to order the spouse to vacate for a period of time not to exceed 90 days.  This time can be extended upon further motion.

It is important that a spouse who wishes to file a motion to vacate the marital home understand the complexities involved in such a motion. The moving party must be able to show with specificity how their health or safety (or that of the children) is endangered or how it is substantially impaired.  The ways in which someone’s health, safety or welfare can be impaired is fact specific and is different in every case. It is extremely important to present and prepare this motion and an affidavit properly so that it does not get rejected by the court when, in fact, it should have been allowed.

If you are considering a divorce action and this issue will present itself, you should seek the advice of an experienced family attorney.  Divorce matters can be complex and overwhelming.   This 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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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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