Do I need a lawyer?

Everyday I meet with new clients who are seeking help with their family or other legal matters.  Some are able to afford to write a check without a hesitation. Others borrow. Others even still scrimp and save to be able to pay the retainer that is required in order to secure the services they seek.

As part of this representation, in family matters involving children, I attend the First Appearance scheduled by the Court.  A First Appearance is the first event for families entering into the NH Court System. It is where the judge addresses everyone who has filed or received court paperwork, and where court staff schedules these parties for their first legal event, usually a mediation.  I attend these meetings for several reasons: first, most clients are scared, having never been to court before, and they feel reassurance by my being able to lead them through this legal event, however short and inconsequential to their individual case; second, in order to avoid scheduling malfunctions, my participation in scheduling mediation helps to avoid delays due to rescheduling; and third, like my clients, I am able to hear the court speak about their philosophies on processing these cases, and always learn something new, which ultimately helps me direct my client’s message to the Court in more efficient ways.

The fact that emerges from the Court’s presentation and that remains the most shocking to me is that only about 30% of people in the Family Court System hire attorneys.  That is, 70% try to do it by themselves.  This fact often explains why many of my clients are people who have been in court before, but come to me to try to “fix” what isn’t working or what is a real problem.  Sometimes I can help, sometimes I can’t. But I always wish these client’s came in sooner. Inevitably, the expense of a lawyer is always more when we are fixing a problem, rather than being involved from the beginning.

But, before I meet with these clients, my paralegal, an amazing resource to our clients, is often asked by potential clients calling whether they really need an attorney. In trying to help her respond to this question, my answer is simple:

“If your appendix were rupturing, would you go to your kitchen, pull out a knife, and operate?  No. You would go to a professional who has medical training and license to take out your appendix in a facility that has all the right equipment to keep you alive..”

Years ago, I saw a commercial for some insurance company, I think, although I can’t be too sure.  And, in every version there was a person on the phone in their home, with various medical instruments strewn on their dining room table, taking instructions from a doctor on the other end of the telephone.   I remind people of the absurdity of that commercial.  I tell clients that I wouldn’t attempt to fix my car,  my pipes, appliances, or anything else, but instead hire the right person for the job.  While it costs money, in the long run, it costs more if I try to do it myself and it considerably reduces the chance that I will do significant damage to the item needing fixing, to myself, and to everyone else around me.

One area where a lawyer can help is to tell you whether your circumstances are appropriate to bring before the court in the first place.  A good lawyer will ask you questions, listen to your concerns, and give you an honest evaluation of whether you might prevail in Court. Lawyers who are regularly in court and very busy are the lawyers to hire.  While you may wait for an appointment, they are the lawyers who have the experience to determine how the Court will approach your case. Your lawyer should also not be afraid to tell you something you don’t want to hear. If you aren’t going to be successful, your lawyer should tell you that, and you should be open to hearing and accepting their criticism. People who proceed forward without a lawyer, when they have been warned against bringing a case should not be surprised when they don’t prevail.  In addition, in our office, we keep our relationships honest: we charge for consults. We will give you real information and don’t have to worry about a sales pitch. If I only meet with you for an hour, you at least get an hour’s worth of real information and advice, and no fluff as to why our office is good. We don’t need to tell you, we show you.  We also reduce the number of appointments with the time wasting person who has no intention of hiring us, thereby allowing us to focus all of our energies on the people who have.  When have you ever gotten anything for free that was worth something? I haven’t.

If you read the newspapers these days, you will find that lawyers and the legal profession are being attacked regularly. It’s a long standing tradition in my profession, so I try to ignore it as much as possible and not take it personally; the attacks are almost as vanilla as the two dominant political parties picking fights with one another during campaign season – they blend into the background until they sound like Charlie Brown’s school teacher (Wahh. Wah. Wah. Wahhhh). Nonetheless, it is apparently necessary that I point out that there is this misunderstanding that if you can think, can write, and can speak that you should be able to be your own lawyer effectively. After all, real lawyers make it look easy, don’t we? Nothing can be further from the truth.

For every hour of court appearance, I can remember, at times fondly and at other times with a shudder, the countless hours I spent reading cases in my textbooks, briefing them, discussing them in my three years of coursework, without confidence applying them in my externships and summer jobs, reviewing and honing principles of law in my bar review courses (2), and regurgitating on command during my two day exam which involved nasty, tricky multiple choice questions and state specific, subject specific essay questions. Those hours also included learning, understanding, and applying the rules of ethics for a required exam, these same rules that guide a lawyers daily actions with everyone, even when we are not wearing our lawyer hats. Finally, those hours also include the years – years – of daily practice, hearing people’s real problems, learning the nuances in the law, adjusting to the local practice rules which seem to change regularly, attending continuing education classes which advance my knowledge, and hearing and filing away snippets of information from every encounter and appearance in court in front of a Judge or Master.   By the time we are engaged in active practices as primary lawyers on our client’s cases, we have an encyclopedia of knowledge that informs our every question, strategy, and action.  We have learned to package information in a special way, in a special format, which calls on the same, time honored education that all lawyers and judges receive, so that one particular word can direct a Judge in the direction I want to take them, by calling on settled concepts of law or a particular series of cases.

The reality of the disparity between the effectiveness of my training and skill and the lack thereof of my opponent 70% of the time, the unrepresented litigant, is never so stark as when I sit in the back of the courtroom and watch people who are unrepresented try to tread water against a lawyer, even a bad one. It shows in the way they are dressed, the way they speak, the way they handle evidence; it is the difference between Tom Brady and Pop Warner.  However, the message that is broadcast to the public is that the lawyers are the problem, when the lawyer is just doing the job they were trained to do against an opponent who simply doesn’t have the same encyclopedia of knowledge, and who shouldn’t be trying to represent themselves in the first place.  It is almost like an unintended blood sport, where an unsuspecting citizen is struck repeatedly by the weapon of knowledge and skill. The result of course being that the unrepresented party walks away feeling like the system failed, blaming the court, the lawyers, and anyone else in striking distance.  In many of these situations, as I have personally seen, the unrepresented person would have prevailed if the Judge could have been taught the right set of facts, with the right legal references, with the right documents, following the right procedure. But, the Judge can only make decisions based on what is presented in the courtroom, and can’t help the unrepresented person “try their case”.

Lawyers aren’t the problem. Judges aren’t the problem.  Our system in NH works. Like any system, it works when you have all the right parts, including a lawyer knowledgeable and experienced in the area of law for which you require assistance, who can answer your questions, guide and advise you, and communicate with the court, when all else fails.

So, yes, you do need a lawyer.

 

 

What is the law on moving in NH?

In NH, the Family Court looks to a statute, legislature made law, to decide whether a parent can move. The law is located at NH RSA 461-A:12 Relocation of a Residence of a Child.

Generally, in order to relocate, a parent must prove by a preponderance of the evidence (more likely than not) that the location is for a legitimate purpose and that the proposed location is reasonable in light of that purpose.  If the parent who wishes to move can prove these two requirements, then the burden shifts to the other parent, opposing the move, that the proposed relocation is not in the best interest of the child.

There are several cases, decided by the NH Supreme Court, outlining factors which help guide the Family Courts in deciding whether something is legitimate or reasonable. However, the factors the court will consider can be best summarized in the following list:

  1. Each parent’s reasons for seeking or opposing the move;
  2. The quality of the relationships between the child and each parent;
  3. The impact of the move on the quantity and quality of the child’s future contact with the non-moving parent;
  4. The degree to which the moving parent’s and the child’s life may be enhanced economically, emotionally, and educationally by the move;
  5. The feasibility of the preserving the relationship between the non-moving parent and the child through suitable parenting arrangements;
  6. Any negative impact from continued exacerbated hostility between the parents;
  7. The effect that the move may have on any extended family relations.

As you can see, there is no litmus test for deciding these cases.  They are very fact and family specific. Many times, the Court finds in favor of the non-moving parent, in order to maintain the relationship to the child.

As always, this information is not meant to replace legal advice from a licensed attorney who has had the opportunity to hear all of the facts and ask important questions in order to form their opinions. If you are facing a relocation, either as the moving parent or the non-moving parent, call a lawyer.

Can I move?

We’re back!  We took a brief hiatus from our blog over the summer, and since the crisp autumn air has started to move in and the trees are slowly changing over to their beautiful colors, we return to continue addressing questions and providing meaningful information about family law in NH.  As always, this blog is not intended to be a substitute for speaking to a NH licensed attorney about your legal matters.

We have been busy at Bernson Legal, PLLC and at Dover Mediation, LLC.  While we have been working diligently on a variety of legal matters, undoubtedly, the most common type of case we are taking is relocation cases: parents wanting to move from their current residence to a new one, and that move affecting school district placement and/or travel time for parenting exchanges.

“Can I move?”

The answer to this question is complex. It requires a thorough evaluation of all of the facts surrounding the desire to move, the circumstances of the parties, the relationship between the parents and the child, and a whole host of other variables, as applied to relevant and a NH law.  In some situations, how the court will come down on the issue is easy, in others, not so much.

If you are a parent and you are contemplating a move, plan early.  It will be frowned upon by the Court to engage in stealthy, in-the-middle-of-the-night moves, and you most certainly will start out in the penalty box. If you wish to move, the Court will expect you to notify your co-parent as soon as possible.  If you are on good terms with your co-parent, have a conversation – in person – if possible. Then, whether or not you are on good terms, notify your co-parent in writing: email, certified mail return-receipt requested, and regular U.S. Mail.  That’s right, stay away from texting.  Texting is generally a bad medium for communicating, especially something as important as this issue, which has the real potential of blowing up a working relationship. Texting requires additional steps to preserve the evidence (that you did notify your co-parent of the move, and the date you did so), and text messages can be easily disposed of, without any chance of recovery, handicapping you in a relocation case.

If you and your co-parent agree on the move, you can submit a new parenting plan, modifying the old one fairly easily. The filing fee is considerably less, at $102.00 in 2012.  There are gaggle of mediators available in NH to help you put your agreement into the right format and words, and to help work out any other details yet to be considered.

If you and your co-parent do not agree, immediately consulting a NH licensed attorney experienced in relocation cases to determine your options, if any, is your best next move.  That’s right – if any.   There are circumstances where a parent simply cannot move unless the other party agrees.

If you are in the fortunate position of beginning a case with your co-parent, either through divorce or a parenting plan, it is wise to think about whether you may be moving in the future, and address this issue in your parenting plan now. Parenting Plans can be as creative as you want them to be, so provisions can be added on how to resolve the relocation problem, if all parties are willing to work together, otherwise the NH Statute on relocation will govern.

Check back to learn about the law governing relocation and  find out what factors NH Courts consider when deciding relocation cases.

 

Help! I have received Notice of a divorce or parenting petition, what happens next?

For many people, the process of getting divorced or establishing a parenting plan between unmarried people begins with a letter from your NH Family Division Clerk’s Office asking you to pick up some paperwork within a certain time period, usually 10-days.  The emotions of those who receive this less-than-fuzzy-letter run the gamut from angry to hurt, to indifferent, to, believe it or not, relieved.

After receiving this letter, regardless of your emotions, what you do next is important.  For some people, the issue of jurisdiction, or whether this particular court is the right place to decide your case, can make a difference.  Beware, however, the time to challenge jurisdiction is at the very beginning of a case.

In NH, in order to bring a divorce case, you must have lived in NH for at least one year prior to filing.  In order to bring a parenting petition, the child must have lived in NH for at least six months prior to filing.

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Your resource for Family Law in NH

Welcome to the NH Family Law Info Blog.  It was after much consideration that I finally decided to bite the bullet and develop this website.  Over the last year I saw the proliferation of lots of blogs about Family Law in NH written by angry people who, frankly, had nothing but axes to grind, and were giving out incorrect biased information. There were very few blogs available that actually provided substantive knowledge about NH Family Law. I knew it would be a lot of work to develop informative content and to keep it current, but given the choices out there, I decided it would be worth the effort if I was able to reach those searching for real information written by someone who is both trained in the law and experienced in its everyday application in NH’s Courts.

This blog is not a substitute for real legal advice by a real lawyer who meets with you and hears all of the facts of your situation.  Everyday I meet with new clients who explain to me their legal problem; each is different and has its own unique challenges.  Therefore, I urge you, if you find yourself in the legal system, to please hire an attorney.  Approximately 70% of people in the NH Family Court System try to do it alone. Don’t. While the NH Court System, in responding to the massive number of people trying to navigate the legal system alone, has developed standardized forms, developed a First Appearance process, and routes most cases through mediation before a Judge is assigned to decided matters, family can be complex. By trying to handle matters without the advice of any attorney, a litigant can prejudice their legal interests without even knowing it.

My goal with this blog is to discuss issues of importance that I face everyday on behalf of clients who hire me for my services. I look forward to this opportunity and welcome you to join me in this process.