I recently presnted at the New Hampshire Association of Justice’s 22nd Annual Family Law Forum on the topic of “What Troubles May Lurk Ahead When It Comes to Treatment of Trust Interest in Divorce.”
For a copy of the slide deck from this presentation, click here.
There are certain objections that must be raised at deposition, or they will be lost, such as when the objection asserts that a question is leading or is phrased in a way that could be corrected by the lawyer asking the question. If the opposing lawyer has an objection based upon the “form” of the question, then that objection as to form must be raised at deposition so that the lawyer examining the witness is given the opportunity to rephrase the question and ask it properly. But even if an objection is made, the deponent must answer. With limited exceptions, all other objections are preserved and may be raised at trial.
In a Law and Order episode, the prosecutor, Jack McCoy, was talking to his associate, Claire Kincaid, about her upcoming deposition and explaining that she might be asked certain questions likely to elicit harmful testimony by her. The response by Claire Kincaid was: “Well, you’ll just object.” McCoy’s reply to her was: “But Claire, you know you have to answer the question anyway.” That, in fact, is the general rule.
There are a limited number of objections at deposition which, when made, can be followed by an instruction by the client’s lawyer directing the client not to answer. Thus, objections based on privilege, such as the attorney/client privilege, the Fifth Amendment privilege or the doctor/patient privilege, may be raised at deposition and a lawyer may instruct the client or possibly warn a witness not to answer on that basis. There are, generally speaking, only three bases on which a lawyer may instruct a witness, usually his or her client, not to answer a question at deposition. Those three bases are:
Thus, the rule in general is that witnesses at deposition must answer all questions they are asked, even if the opposing lawyer objects. The objection is simply noted on the record and the client or witness is then instructed to answer the question. This means that, especially in divorce cases, some very personal questions may be asked of the parties or of witnesses. Thus, clients, and to some extent witnesses, should be prepared to have to respond to some intrusive questioning at deposition. Therefore, a party to litigation should be prepared to undergo some unpleasant questioning, especially in divorce litigation, where just about anything may be the subject of inquiry.
By Jacqueline A. Leary (Botchman)
On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread.
The Governor of New Hampshire issued an executive Stay-At-Home Order, which went in to effect on March 27, 2020. This Order closed all nonessential businesses. “We can’t stress this enough – you should stay at your house unless absolutely necessary,” Governor Sununu said in a statement on Twitter. “Of course, we won’t prevent you from leaving your home to go for a walk, or when heading to the store for groceries, or going to an essential job.” Id. This Order is currently in place until May 4, 2020.
The New Hampshire Supreme Court issued an Order in regard to the New Hampshire Circuit Courts, suspending in-person hearings, with the exceptions of certain cases, through May 4, 2020 and/or the last day of the Declared State of Emergency. See N.H. S.C. Order, Renewed and Amended Order Suspending in-Person Court Proceeding Related to New Hampshire Circuit Court and Restricting Public Access to Courthouse (March 27, 2020) (“Order Suspending In-Person Hearings”). This Order expressly does not prohibit court proceedings by telephone, video, teleconferencing, email or other means that do not involve in-person contact.” Id. at § 15.
Nothing in the Governor’s Executive Order or the Supreme Court’s Order prevents parents from complying with their parenting plan. Therefore, in absence of an emergency to your child’s health, safety, or welfare parenting time exchanges should proceed as schedule.
Does social distancing requirements override a Court Order?
Likely, no. It is challenging to create an effective social distancing plan for a child when his or her parents are divorced or separated, especially when the child is going back and forth between two households.
So far, in New Hampshire, the family courts have said that parents should follow existing court orders and that the social distancing requirements alone are not an emergency that justifies changing present parenting plans. Disobeying a court order or withholding visitation during this time will not be tolerated and may even result in contempt of court and sanctions, like attorneys’ fees.
If you have valid concerns about the health, welfare, and safety of your child, then you should try communicating with your ex-spouse to what arrangement you can meet voluntarily to reduce risks to your child. If this avenue does not work, then you should seek guidance of a family law attorney. Most family law attorneys are still available by e-mail, phone, and through video-conferencing, such as Zoom.
The New Hampshire Circuit Court – Family Division is closed to the general public, but will be open for individuals filing for emergency relief and for a few other limited purposes. The Supreme Court’s Order Suspending In-Person Hearing outline a few exceptions, including, but not limited to:
Although the Family Courts encourage frequent and regular contact with both parents and will not condone withholding visitation, if your child’s health is truly at risk, a judge may intervene.
A New Hampshire Court may grant ex parte and emergency relief when it appears that “immediate and irreparable injury, loss, or damage shall result to the applicant, the children, or the marital estate before the other party or attorney can be heard.” Family Div. R. 2.9(B); accord RSA 458:16, II(a); RSA 461-A:9, I.
An example of such an emergency is if one parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent has COVID-19 or has been exposed to someone with confirmed COVID-19. A Judge may find that it’s in the child’s best interests to modify visits for a limited period of time and schedule make-up visits for a later date.
Parents should continue to abide by their parenting plans, adhere to all of the recommended guidelines and health practices, and only seek emergency modification of their parenting plan if “immediate and irreparable injury, loss, or damage” will result, such as an actual risk to your child or exposure of your spouse is confirmed.
By Jacqueline A. Leary (Botchman) (co-written by Gena B. Lavallee)
As published in NH Bar News (November 2019)
The end of marriage can spell the end of a married couple’s business relationship.
In family businesses, particularly those owned and operated by married couples, boundaries are often blurred between the affairs of the family and the management and ownership of the business. The finances of the family and those of the business are closely tied. Although familial bonds often lead to great success in businesses, there are challenges associated with the family business structure. Well drafted, protective, contractual provisions can help keep the family business operating and allow management and employees to remain focused on the day-to-day operations of the business, particularly in the midst of an emotionally charged divorce between the owner-operators of a company.
To read the full article, click here.
By David DePuy
The New Hampshire statutes and court rules set forth the procedures for initiating and litigating a divorce proceeding beginning with the filing of a Petition by the Petitioner and an Answer by the Respondent. Thereafter, the Court rules govern the divorce litigation process. Litigation of a divorce is expensive, time consuming and can drag on for a year or longer. While the aim of divorce litigation is to obtain a just resolution of the breakup of the marriage, by opening the door to the courthouse, the parties wind up spending a lot of money contesting matters that, although felt to be of great importance at the time, are often transient, involving issues which are temporary and often increase the hostility of the proceedings. Words spoken cannot be taken back and those that are put in written pleadings are forever memorialized. Furthermore, the court rules set deadlines with regard to discovery, including the submission of interrogatories, requests for production of documents, taking depositions, production of expert reports, the automatic disclosure of a host of financial records, including 6 months of credit card statements, 12 months of bank account statements, investment accounts, retirement accounts, and other records. For business owners the automatic disclosure rule, family Court Rule 1.25-A, requires the disclosure of monthly, quarterly and year-to-date financial statements, including profit and loss statements, balance sheets for the year that the divorce petition is filed and year-end financial statements for the prior year. All such documents are to be produced within the earlier of 45 days from the service of the divorce petition or 10 days prior to the first hearing. That first hearing is usually the temporary hearing.
As published in NH Bar News (November 2017)
Your divorce client advises you that her parents, who are well off, have likely provided for her in their trusts and she is concerned that her husband may share in her potential inheritance. What do you advise her?
In New Hampshire, marital property includes “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.” RSA 458:16-a (emphasis added).
To read the full article, click here.
By David DePuy (originally published 10/27/2015)
The Collaborative Law Alliance of New Hampshire’s (CLANH) annual meeting was held at McLane Middleton on September 17, 2015. The firm is a big supporter of CLANH’s work, and are proud to have been able to host the event again this year.
As part of the event, attorney Honey Hastings was recognized with the John Cameron award. We congratulate Honey and appreciate her continued dedication to the collaborative law movement.
By David DePuy (originally published 1/5/2015)
By David DePuy (originally published 4/24/2014)
By David DePuy (originally published 3/13/2014)
The New Hampshire Supreme Court, in a landmark decision (In Re: Estate of Richard B. Wilber), has confirmed that agreements made between spouses after marriage are valid and enforceable in New Hampshire. The questionable validity of agreements determining rights of each spouse in property of the other upon death or divorce has now been laid to rest. The Court in the Wilber case followed the trend of other states which recognize such agreements, finding that they are, in essence, subject to the same requirements as agreements entered into by parties prior to marriage, so-called prenuptial agreements. Continue reading
New Hampshire Guide to Family Law 