The Law Offices of Christine G. DeBernardis, Esq.

Massachusetts Divorce: “What’s this going to cost me?”

Christine G. DeBernardis, Esq. — Mon, 18 Mar 2013 13:20:13 +0000

Whether you’re the husband or the wife, the bread winner or the stay-at-home parent, cost is typically a factor in consideration of a divorce. At some point during every consultation, a person turns to me and says “So, what’s this going to cost me?” My response is always the same: “That’s a tough question!” There is a way to answer that question, though not definitively, if you understand the process of divorce and what’s to come in the future.

We already know that you will proceed in your divorce by filing either a joint petition or a complaint for divorce. If you file a joint petition, you work with your spouse, alone or through counsel, to negotiate a fully inclusive agreement. If you file a complaint for divorce, there is at least one point on which you and your spouse cannot agree.

For a joint petition, many attorneys will determine what works need to be accomplished and then quote you a fee that will be all inclusive of the process. You will pay this fee and you will not pay additional fees. This will include drafting an agreement, drafting all the other documents for filing, filing the documents and In some cases, where it is difficult to anticipate whether a joint petition is possible, the attorney may charge you hourly until such time as it becomes clear that the joint petition can be filed.

In a complaint for divorce, you will make the initial filing. Depending on the facts and circumstances of your case, you may attend a motion hearing for temporary orders. There may discovery (a sharing of information) to be done at this point. A four way conference is held to prepare for the pre-trial conference. If the case cannot be resolved, a trial date may assigned In the midst of all those dates, it may be necessary for further motion sessions, additional discovery, etc. Each case is fact dependant. Counsel can assess what steps may be likely in your case to determine the minimum amount of fees. In some cases, counsel can tell you what is anticipated. However, there are a lot of paths that this type of case can take.

As you can see, in most cases, there is no way to tell you exactly what a divorce will cost. There is a way to tell you the minimum cost. There is a way to tell you anticipated costs. Because there is no guarantee as to what your spouse will do or as to certain circumstances that may occur, it is tough to anticipate completely what will happen in some cases. Always be clear with your attorney as to what you anticipate and be open to the fact that this process sometimes doesn’t follow an exact road map.

Stay tuned for “New Hampshire Divorce: What is this going to cost?”

How do keep my divorce moving forward?

Christine G. DeBernardis, Esq. — Wed, 06 Mar 2013 13:52:11 +0000

This is a common question in my field and it’s one of the most difficult to answer, unfortunately. Divorces can take many paths. The outcome of each case is truly dependant on the parties. So, how can you keep your divorce moving forward toward resolution?

Comply with the Court’s rules. At certain times during your case, you are required to complete certain tasks by the Court rules. It is your responsibility to know these requirements and to make sure that these tasks are completed. If you have an attorney, s/he will make sure that you are aware and you comply with these requirements. If you are pro se, or unrepresented, you must make sure that you learn the requirements and respond appropriately.

Keep your eye on the goal – your divorce. It is easy to get side tracked by the emotions and small details involved in your case. Remember that you have a certain goal at the end of the process and work toward that goal. Do not argue with your spouse about topics that don’t matter. Do not fight about things that will be resolved later. Do not worry about the little details. Keep your conversations to the issues that you must resolve. Hold your temper. Work to come to an agreement on these issues (or let your attorney do so).

Each time that you leave a court, you will be scheduled for the next event in your case. Keep track of this date and work toward preparing for that event. For each event, there are things that you can do to prepare. Perhaps you need to gather documents. Perhaps you need to do some research. Perhaps you need to speak to witnesses. Whatever it is, start earlier rather than later and make sure that you are prepared for that next event.

Divorce is a process that can be very overwhelming and emotional. No matter how you decide to proceed (with counsel or without), it is best to keep your eye on the ball, so to speak, and work towards the end result. Gather your information and negotiate and agreement that works for you. It will always benefit you in the end.

New Hampshire: The First Appearance

Christine G. DeBernardis, Esq. — Wed, 20 Feb 2013 14:33:41 +0000

You’ve filed for divorce and you’ve received a notice that you must attend something called a First Appearance. So, what is this?

If you are a party to a divorce action, and you have children of the marriage that are under the age of eighteen, you will be scheduled to attend a First Appearance shortly after the divorce has been filed. This is a meeting that informs you about the process of divorce in New Hampshire. The First Appearance is designed to tell you about what will happen during your case, how to prepare for what’s to come and what resources are available throughout the process. Common questions about the First Appearance are:

Do I need my attorney to attend the First Appearance?

    You do not need to have counsel present during the process. This really is an information session for you to learn about the process. However, if you want your attorney to be present, discuss this with him/her to see if s/he will attend or if they have input about whether s/he should attend.

    What do I bring to the First Appearance?

    You should bring a completed financial affidavit to the hearing.

    How long is the First Appearance?

    Plan to be at the Court for a couple of hours that day.

    Will my spouse attend the First Appearance?

    Yes, your spouse will attend the same First Appearance

    Are there any decisions made at the First Appearance?

    No, there is no litigation of your issues at this hearing. This is a meeting that is designed to inform generally and will not address any individual issues.

    What happens at the end of the First Appearance?

    The Court will assess your case, determine the appropriate next step and schedule your next event. This could be a case manager conference, mediation or court hearing.

    If you have questions about the First Appearance, feel free to give us a call and discuss your case at any time. Call us at (603) 373-0545

New Hampshire Law: Alimony

Christine G. DeBernardis, Esq. — Mon, 04 Feb 2013 14:18:35 +0000

Alimony is always hot topic in matters of divorce. Not everyone understands on what basis it is determined and if awarded, how the amount and length of the award is determined.

In New Hampshire, the mystery surrounding alimony certainly is warranted. Unlike child support, in New Hampshire, there is no mathematical formula for alimony. There is no chart or graph to guide you. It is a determination made by the Court’s consideration of a number of factors, the most important of which is “need.”

To decide if alimony should be awarded, the New Hampshire Courts look to RSA 458:19(IV)(b), and consider the following factors:

length of the marriage
age
health, social or economic status
occupation
amount and sources of income
the property awarded under RSA 458:16-a
vocational skills
employability
estate
liabilities
needs of each of the parties
opportunity of each for future acquisition of capital assets and income
fault of either party as defined in RSA 458:16-a, II(l)
federal tax consequences of the order.

Alimony can be awarded in a lump sum (all at once) or in monthly/weekly payments.

Therefore, the onus is on the parties to make arguments to the Court, using these factors as to why alimony should or should not be awarded, the amount to be awarded and for how long it should be awarded. It is the argument that you are able to put forth that will make the difference in whether or not you receive, or have to pay, alimony.

Don’t let a mistake in your argument cost you now, and in the future. Contact us to review your case and represent your interests in your New Hampshire alimony cases. (603) 373-0545

Should my Ex’s New Girlfriend/Boyfriend visit with my child?

Christine G. DeBernardis, Esq. — Wed, 16 Jan 2013 16:00:10 +0000

     You’ve separated from your partner and he now has a new girlfriend. He sees nothing wrong with that girlfriend being present during visitation with your kids. You think that she should not be there. You are not alone. This is a very common issue in the world of custody and visitation.

     For purposes of this article, let’s use the example of partners whom have separated that have a young daughter. The father now has a new girlfriend and he insists that she be present during visitation.

     The first question I ask my client in this situation is “why don’t you want this new person to be there?” Some say that they don’t know her. Others say that the parents have not been separated long enough and they think it is too soon to introduce new loves to the child. Some say that the party is a bad influence because of attitude, alcohol, etc. Still others say that the child just doesn’t like this person. So, does “why” really matter?

     “Why?” really does matter because it determines how the Court will respond and if there is a remedy to the situation. If it is a situation where the parties have only recently separated, it may be a good compromise to wait several months before either party introduces a new love. If it is a situation where the child doesn’t like the person, perhaps a warming up period is in order. If it is a situation where safety is at stake (ie alcohol abuse), there may be a way to prevent her from being present or a way to enforce provisions that can be put in place to ensure safety.

     As always, the devil is in the details! Every situation is different and will be determined on a case by case basis. Call us today for an evaluation of your situation. Let us help you with it!

Can I sign over/terminate my parental rights & will it affect child support?

Christine G. DeBernardis, Esq. — Tue, 15 Jan 2013 01:04:08 +0000

     Often I have people call me to discuss “signing over their parental rights” in hopes that this will either 1) end the drama that happens when they visit with their child or 2) end their obligation to pay child support. This is a difficult question to answer in a general fashion, but this article will give some perspective and some thought to this topic.

     Often, it is the case that the father is the non-custodial parent and he is having trouble getting the mother to comply with the visitation order. She won’t let him take the child when it is his time to visit with her or she is late for drop off/pick up. She gives him a hard time about where he is taking the child, with whom he is taking the child (ie a new significant other) or his behavior when he has the child. Since the custodial parent has the child living in her home (custodial parent), the father (non-custodial parent) feels trapped and that he has no way to fix this issue. This is often where I hear that the father wants to give up the rights to see the child because it is too difficult to deal with the mother.

     Frankly, this issue can be fixed. The solution in this case is not to sign over or terminate parental rights. The solution is to ask the court for a visitation order that suits the child and/or ask the court to enforce that order if the mother does not allow him to see the child in accordance with its terms. Though enforcement can sometimes take time or several court appearances, it is worthwhile to pursue the order, or its enforcement, so that all parties begin to follow it.

     When a party seeks to sign over or terminate their rights, they often make the mistaken assumption that they will also no longer have to pay child support. Since they do not see the child, they do not have to support the child financially. Generally speaking, this is wrong. Also, the court will not simply let you sign over or terminate your rights to support simply because you don’t want to pay child support. The child is born into this world with two biological parents and each parent is obligated to support that child financially.

     There are some circumstances where the court would consider a termination of parental rights (and thus, the obligation to pay child support). Perhaps the best example is when the father seeks to terminate his rights and the mother’s new spouse seeks to adopt the child. In this circumstance, if the court grants the parties’ their wishes, the child remains supported by two parents. Thus, so long as the arrangement is in the best interest of the child, the court will likely allow these requests.

     If you have specific concerns or you want to discuss specific details of your case, feel free to give us a call. We are here to consult with you and give us the best advice for accomplishing your goals.

New Year, New Blogs!

Christine G. DeBernardis, Esq. — Tue, 08 Jan 2013 20:48:47 +0000

    Happy New Year to all of our families, friends and colleagues! I hope that you all have had a positive start to the new year and are ready to begin anew with goals, plans and dreams for the upcoming year.

    As we start a new year, it is often the case that we think about making a “fresh start,” having a “new beginning” or “starting a new phase” of life. Some go on a diet. Some pick up a new fitness regime. Others quit smoking. Some de-clutter the house, the cabinets, their lives. Others begin a new phase of schooling or a new position at work.

    In the legal world, often there are attempts at a “fresh start” made during the new year. We see people initiate a long time coming divorce, finish up post-divorce details, sell their home or even simply complete their estate plan (no more dawdling!). Now is a good time to get these things done and put one more nagging thing behind you for the start of a new year. If this is one of your new year’s resolutions, dial us up today and let’s get started!

    A happy, healthy 2013 to you and yours!

Massachusetts: The Annie Dookhan Drug Lab Scandal

Christine G. DeBernardis, Esq. — Mon, 15 Oct 2012 09:05:26 +0000

    By now I am sure that a lot of you have heard of this case. A Massachusetts drug lab chemist was found to have falsified drug certificates by neglecting to test samples that she claimed to have tested, signing initials of other chemists and switching samples of drugs amongst different cases. This has effected over 60,000 samples and over 34,000 defendants.

     The question for a defendant is “what do I do if I think that my case involved a drug certificate issued by Annie Dookhan?” or “what do I do if I don’t know whether my case involved Annie Dookhan?” Even if your case is “over” (ie your probation is now terminated or your jail sentence completed), you may still have a legal remedy as a result of the Dookhan scandal.

     The first step is to contact your attorney. If you tendered a plea to the court, or the matter went to trial, your counsel should have a copy of the certificate in your file. You are free to request a copy of the certificate itself or to simply speak to your attorney about the issue. In some cases, you may find that your attorney will contact you about the issue.

     If you find that your case did involved Annie Dookhan, speak to an attorney about what steps to take in your case. Though there is a general protocol already in effect for these issues, each case is different. You should make sure that you know your rights and remedies and make an informed decision based on the guidance of legal counsel.

The Only Person that can Change a Court Order is the Court!

Christine G. DeBernardis, Esq. — Thu, 27 Sep 2012 09:00:28 +0000

     I come across this issue fairly often, many different contexts, and decided that it was a great issue to discuss here. It is very clear in all contexts. If you are subject to a Court’s Order, that Order remains effective until 1) that order expires or 2) the Court modifies the order.

     The easiest example of this issue is seen with a restraining order. At your ex-wife’s request, the Court has ordered you to have no contact with her. That Order expires on January 1, 2013. The Order is a civil one. Violation of it is a criminal offense. Your wife has contacted you several times. She wants to speak with you and doesn’t care about the “no contact” order. Even though she wants to speak with you, you cannot contact her until a Judge modifies that order and removes the “no contact” provision (or vacates the order entirely).

     Child support gives another great example of this issue. The Court ordered you to pay $200.00 per week in child support. You were laid off and your ex-spouse is actually very understanding, telling you that you don’t have to pay support until you find a new job. As the weeks pass, you are in violation of the Court’s order to pay support. You must seek the Court’s permission before stopping support payments or you are in contempt of the Court’s Order.

     If your ex-spouse wants to have contact with you, as in the first example, or doesn’t object seizure of child support payments, as in the second example, why do you need to go any farther than that? After all, that was the person who asked the Court to make the order in the first place. This is definitely correct and not an unreasonable assumption. However, the Court has now made an Order by which you must abide and only the Court can change that order. Your ex-wife has input, and can tell the Court her wishes, but the Court must actually modify or terminate the order.

    Of course, there are other examples of this issue. These two scenarios are just two common examples.

    If you are in this situation, or think that you might be, seek the guidance of an attorney to determine if you need to address the matter with the Court. Always be safe rather than sorry on this issue.

Can I have an attorney for mediation?

Christine G. DeBernardis, Esq. — Mon, 24 Sep 2012 09:01:52 +0000

    Often I have people consult my office that either want to or have agreed to attend mediation (through a court process or otherwise). They tell me that they can “work it all out” or that they “don’t want to argue.” Often people tell me that they have decided to go through mediation rather than having their own attorney.

    The first step to making this decision is to understand the mediation process. Mediation is a process by which the parties discuss the matter at hand, whatever that may be, to identify the issues and come to an agreement on how to resolve any conflict. In the matter of divorce, the parties attempt to come to an agreement on such issues as property distribution, child custody & support, etc.

    Next, you must understand the mediator’s role. The mediator is not there to give you legal advice. He or she does not represent either party. The mediator does not advise either party as to the implications of his/her decisions. The mediator’s role is to bring the parties to an agreement that works for both. In essence, the mediator brings “A” and “C” to a middle point of “B” with an agreement that is fair and reasonable.

    If you want legal advice, you must have an attorney present. Only then will you receive legal advice and understand any future implications of your decisions. You cannot rely on the mediator to do this for you. It isn’t his/her job. You can make a decision to have an attorney present for the mediation, which is the most efficient option, or to consult with an attorney after the mediation. Of course, having your attorney present ensures that you don’t have to go back to negotiations after learning that an agreement you made was not in your best interest. At the least, having an attorney review the agreement post mediation ensures that you haven’t agreed to anything major that could hurt you later.

    Don’t make major life-long decisions without knowing the legal implications of them in your future. Consult an attorney and know that you are doing the right thing for you – and for your family.

    We are here to assist you. Call us today at (978) 777-5393 or (603) 373-0545.