How is it determined in a divorce who gets what property?
Full Question:
I live in NH, have 3 children (13, 7, & 3) & married for 9 years. My husband adopted the 13 year old. We've had our home for 5 years. Although we're joint tenants on the deed, he's the only mortgagor on the mortgage. How does this play out in terms of divorce?
04/28/2009 |
Category: Divorce |
State: New Hampshire |
#16350
Answer:
New Hampshire is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal.
All custody determinations are guided by the best interests of the child. A presumption exists in determining custodial arrangements that joint custody is in the child's best interests, unless there are allegations of child abuse. No preference shall be given to a party in a custody determination on the basis of a party's sex. The court will give consideration to the wishes of the child.
The following are NH statutes:
458:16-a Property Settlement.
I. Property shall include all tangible and intangible property and
assets, real or personal, belonging to either or both parties, whether
title to the property is held in the name of either or both parties.
Intangible property includes, but is not limited to, employment
benefits, vested and non-vested pension or other retirement benefits, or
savings plans. To the extent permitted by federal law, property shall
include military retirement and veterans' disability benefits.
II. When a dissolution of a marriage is decreed, the court may order an
equitable division of property between the parties. The court shall
presume that an equal division is an. equitable distribution of property,
unless the court establishes a trust fund under RSA 458:20 or unless the
court decides that an equal division would not be appropriate or
equitable after considering one or more of the following factors:
(a) The duration of the marriage.
(b) The age, health, social or economic status, occupation, vocational
skills, employability, separate property, amount and sources of income,
needs and liabilities of each party.
(c) The opportunity of each party for future acquisition of capital
assets and income.
(d) The ability of the custodial parent, if any, to engage in gainful
employment without substantially interfering with the interests of any
minor children in the custody of said party.
(e) The need of the custodial parent, if any, to occupy or own the
marital residence and to use or own its household effects.
(f) The actions of either party during the marriage which contributed
to the growth or diminution in value of property owned by either or both
of the parties.
(g) Significant disparity between the parties in relation to
contributions to the marriage, including contributions to the care and
education of the children and the care and management of the home.
(h) Any direct or indirect contribution made by one party to help
educate or develop the career or employability of the other party and any
interruption of either party's educational or personal career
opportunities for the benefit of the other's career or for the benefit of
the parties' marriage or children.
(i) The expectation of pension or retirement rights acquired prior to
or during the marriage.
(j) The tax consequences for each party.
(k) The value of property that is allocated by a valid prenuptial
contract made in good faith by the parties.
(l) The fault of either party as specified in RSA 458:7 if said fault
caused the breakdown of the marriage and:
(1) Caused substantial physical or mental pain and suffering; or
(2) Resulted in substantial economic loss to the marital estate or the
injured party.
(m) The value of any property acquired prior to the marriage and
property acquired in exchange for property acquired prior to the
marriage.
(n) The value of any property acquired by gift, devise, or descent.
(o) Any other factor that the court deems relevant.
III. If either or both parties retain an ownership interest in an
education savings account held on behalf of a child of the marriage,
including a qualified tuition program under 26 U.S.C. Section 529, the
court may, in its discretion, preserve the account for its original
purpose or may treat the account as property of the marriage subject to
equitable division under this section.
IV. The court shall specify written reasons for the division of
property which it orders.
461-A:6 Determination of Parental Rights and
Responsibilities; Best Interest.
I. In determining parental rights and responsibilities,
the court shall be guided by the best interests of the
child, and shall consider the following factors:
(a) The relationship of the child with each parent and the
ability of each parent to provide the child with nurture,
love, affection, and guidance.
(b) The ability of each parent to assure that the child
receives adequate food, clothing, shelter, medical care, and
a safe environment.
(c) The child's developmental needs and the ability of each
parent to meet them, both in the present and in the future.
(d) The quality of the child's adjustment to the child's
school and community and the potential effect of any change.
(e) The ability and disposition of each parent to foster a
positive relationship and frequent and continuing physical,
written, and telephonic contact with the other parent,
except where contact will result in harm to the child or to
a parent.
(f) The support of each parent for the child's contact with
the other parent as shown by allowing and promoting such
contact.
(g) The support of each parent for the child's relationship
with the other parent.
(h) The relationship of the child with any other person who
may significantly affect the child.
(i) The ability of the parents to communicate, cooperate
with each other, and make joint decisions concerning the
children.
(j) Any evidence of abuse, as defined in RSA 173-B:1, I or
RSA 169-C:3, II, and the impact of the abuse on the child
and on the relationship between the child and the abusing
parent.
(k) If a parent is incarcerated, the reason for and the
length of the incarceration, and any unique issues that
arise as a result of incarceration.
(l) Any other additional factors the court deems
relevant.
II. If the court finds by clear and convincing evidence that
a minor child is of sufficient maturity to make a sound
judgment, the court may give substantial weight to the
preference of the mature minor child as to the determination
of parental rights and responsibilities. Under these
circumstances, the court shall also give due consideration
to other factors which may have affected the minor child's
preference, including whether the minor child's preference
was based on undesirable or improper influences.
III. In determining parental rights and responsibilities
under this section, including residential responsibility,
the court shall not apply a preference for one parent over
the other because of the sex of the child, the sex of a
parent, or the financial resources of a parent.
IV. If the court finds that a parent has been convicted of
sexual abuse or sexual assault against such parent's minor
child or minor stepchild, the court may prohibit contact
between such parent and the victim of the abuse and any
sibling or step-sibling of the victim. The court shall make
orders that best protect the victim of the abuse and the
siblings and step-siblings of such victim. In this paragraph,
"sexual abuse" shall mean sexual abuse as defined in
RSA 169-C:3, XXVII-a, and "sexual assault" shall mean sexual
assault as provided in RSA 632-A:2, RSA 632-A:3, and
RSA 632-A:4.
V. If the court determines that it is in the best interest
of the children, it shall in its decree grant reasonable
visitation privileges to a party who is a stepparent of the
children or to the grandparents of the children pursuant to
RSA 461-A:13. Nothing in this paragraph shall be construed
to prohibit or require an award of parental rights and
responsibilities to a stepparent or grandparent if the court
determines that such an award is in the best interest of the
child.
VI. The court may appoint a guardian ad litem to represent
the interests of the child according to RSA 461-A:16.
VII. At the request of an aggrieved party, the court shall
set forth the reasons for its decision in a written order.
461-A:4 Parenting Plans; Contents.
I. In any proceeding to establish or modify a judgment
providing for parenting time with a child, except for
matters filed under RSA 173-B, the parents shall develop and
file with the court a parenting plan to be included in the
court's decree. If the parents are unable to develop a
parenting plan, the court may develop it. In developing a
parenting plan under this section, the court shall consider
only the best interests of the child as provided under
RSA 461-A:6 and the safety of the parties.
II. A parenting plan may include provisions relative to:
(a) Decision-making responsibility and residential
responsibility.
(b) Information sharing and access, including telephone and
electronic access.
(c) Legal residence of a child for school attendance.
(d) Parenting schedule, including:
(1) Holiday, birthday, and vacation planning.
(2) Weekends, including holidays, and school in-service days
preceding or following weekends.
(e) Transportation and exchange of the child.
(f) Relocation of parents.
(g) Procedure for review and adjustment of the plan.
(h) Methods for resolving disputes.