Considering Premarital Cohabitation in an Equitable Division of Property

In August of 2016, the New Hampshire Supreme Court issued a decision In the Matter of Munson and Beal which gives the Court the clear ability to consider the parties’ premarital cohabitation in the determination of an equitable division of marital property. 

Every discussion about the division of marital property begins with what is marital property.  Many clients come into our office with the belief that assets titled to that party individually or assets that party brought into the marriage are not marital assets.  This is wrong.  In New Hampshire, RSA 458:16-a defines marital property as all assets titled to either party individually or to the parties jointly. This means that all assets are marital assets, no matter how they are titled. The statute also requires the Court to divide the “marital property” equitably, but states there is a presumption that “equal” is “equitable”.  This presumption means that in most cases, the marital property will be divided equally. However, the Court is permitted to deviate from an equal division based on a number of factors or special circumstances. Those factors or special circumstances include the length of the marriage, whether property was owned by one party prior to marriage, the disparity in the parties’ earnings or abilities to acquire assets in the future, and any other factor the court deems relevant in equitably dividing the parties’ assets.

The Munson and Beal decision dealt specifically with the length of the marriage and the trial court’s application of that factor to the determination of an equitable division of marital assets.  In Munson and Beal, the parties were a same-sex couple. They had lived together for about 15 years before entering into a civil union in 2008. In January of 2011, their civil union converted to a marriage by operation of law. In March of 2012, Ms. Munson filed for divorce. At trial Ms. Munson argued that the court should consider the fact that their marriage was of short duration in the equitable division of assets. Ms. Beal argued that the court should consider their 21 year relationship in the equitable division of assets. The trial court issued a decree of divorce awarding Ms. Munson approximately 88% of the marital assets relying heavily on the date of the civil union being the start of the marriage. The trial court concluded that the marriage was a short-term marriage and as such, an equal division of assets was not appropriate. The court refused to consider the parties’ premarital cohabitation when it divided the marital assets.

Ms. Beal appealed the trial court’s decision to the New Hampshire Supreme Court.  The Supreme Court looked at RSA 458:16-a and the many prior cases concerning that statute. With regard to the length of the marriage, the Supreme Court noted prior decisions finding that a marriage of short duration may be considered differently than a long-term marriage, and that the duration of the marriage is only one of the factors for the court to consider when equitably dividing the assets.  The Supreme Court also noted that in prior cases, the Court had not found it necessary to decide whether the trial court may consider premarital cohabitation under RSA 458:16-a, II. Relying on the statute’s language permitting the trial court to consider “[a]ny other factor that [it] deems relevant”, the Supreme Court held that the trial court has the discretion to consider premarital contribution in divorce proceedings when determining whether to apply the presumption that an equal division of assets is an equitable division of assets. As the trial court apparently believed it had no discretion to consider the premarital cohabitation, the Supreme Court vacated that portion of the trial court’s decree of divorce.

Although this case involved a same-sex couple, the Supreme Court was clear to state that the holding in this case that the court may consider premarital cohabitation applies to all divorce proceedings.

As RSA 458:16-a gives the trial court the discretion to consider a number of factors in deciding how to equitably divide the parties’ assets, it is important to discuss these factors and the facts of your case with an experienced family law attorney.  The family law attorneys at Parnell, Michels & McKay have the experience necessary to help you decide whether it would be worthwhile to pursue these factors at trial.  

THE OTHER GUY DID NOT GET A TICKET. HOW CAN I RECOVER FOR MY INJURY?

It is a common and understandable misconception that someone injured in a car accident cannot successfully bring a claim unless the person they are considering going after was issued a traffic ticket as a result of the accident. While a ticket can help with the liability argument, it really is not necessary to proving a case. To understand why, it is necessary to understand the difference between what is necessary to prove a crime and what is necessary to prove a civil wrong. The key here is what we call the “Burden of Persuasion”.

Simply put, the burden of persuasion is the level of certainty the proponent must establish to the trier of fact that the proponent’s assertions are correct. In criminal cases, the burden of persuasion is beyond a reasonable doubt. Criminal cases include virtually all traffic offenses. In civil matters, which include establishing fault in auto accident cases, the burden of persuasion is a preponderance of the evidence, or better understood, the more likely than not standard. Judges often explain beyond a reasonable doubt in their jury instructions to consider that there is a reasonable doubt if based on all that has been heard the person making the decision would be uncomfortable with a criminal conviction. A preponderance of the evidence, on the other hand, is that based on all that has been heard the person making the decision believes it is “more likely than not” that what the Plaintiff is arguing is true. Reasonable doubt can exist and a person still found to be responsible civilly for an accident. This is because the standard for criminal conviction is so high.

To issue a ticket for a traffic violation, an officer must make an assessment based upon what he or she has observed at the time. Moreover, they must have some sense of being able to prove that a crime has been committed. If the officer is unable to get to that point, they are not likely to issue a ticket. However, that means only that an assessment has been made by the officer that the criminal standard cannot be met. Whether the civil standard can be met is simply not part of the officer’s analysis and has no bearing on the decision to issue a ticket. Sometimes, it has nothing to do with the burden of persuasion, and has more to do with an officer providing a “break” or a warning to someone they feel just made a mistake.

Whether the civil standard can be met is an analysis that needs to be made by individuals qualified by training and experience in automobile litigation. It should not be made by someone without that training and experience. Nor should someone without the training and experience trust that analysis to one that has an interest in the outcome or “a dog in the fight”. Such individuals include not only the person causing the accident, but also their representative, including their insurance representatives. Appropriate persons to make this analysis include experienced plaintiff attorneys, most of whom will conduct the analysis at no charge and make meaningful, fair and well thought out recommendations. At Parnell, Michels and McKay we take great pride in our analysis and in providing meaningful, fair and well thought out recommendations at no cost to injured parties who have questions about their ability to secure compensation for injuries.

If you or someone you know is injured by someone else, do not let the decision to seek fair compensation be determined by whether or not charges are filed. Hopefully this post sheds some light on why that should not be the case. Talk to a trained and experienced injury lawyer and be sure to understand your rights.

Jessica's Law - Why it's Important to Clear your Roof of Snow and Ice

                Jessica’s Law has been the law of New Hampshire for about fifteen (15) years now. It is a law that requires the clearing of ice and snow off the top of a vehicle prior to driving it. The basis of the law was a tragic accident that claimed the life of Jessica Smith in 1999. A piece of ice about nine (9) feet long flew off of a tractor trailer, smashing into a box truck that veered into Jessica’s vehicle killing her. The accident in Peterborough is not long forgotten by her parents, as Jessica would be thirty-nine (39) years old coming up.

                However, we find that driving around that many people still do not clear their entire cars. We understand what it is like to be rushed in the morning, cold, freezing and not wanting to clear off the top of your SUV or truck. Still, the consequences are dire. If the ice on the top of your roof comes off and kills someone, you are going to think long and hard about whether that extra five minutes you saved were worth it. Obviously, nothing is worth losing a life over, especially not clearing your car off. We typically suggest a “snow broom” in lieu of an ice scraper, as a broom is longer and can reach the top of any vehicle no matter how tall or short you are. No matter what, as fellow drivers in New Hampshire, we ask that you take that extra few minutes to clear off your vehicle and make it safer for those around you.

                There are many ways someone can injure another through negligence. Failing to clear your car off and causing an injury as a result of the flying ice is just one of the many ways laziness can cause someone to be hurt unnecessarily.  However, the lawyers at Parnell, Michels & McKay can help you try to get your life back on track if you are injured. Contact our office and find out why we are one of the fastest growing firms in the State, and one of the most decorated. 

PMM Christmas Wishes

            At Parnell, Michels & McKay, PLLC, we are in the business of conflict and conflict resolution. In carrying out our responsibilities, we often see people experiencing great difficulties, stress and pain in their personal lives. One would think that going through that in the holiday season would take all of the joy and happiness of the season. However, over the years as we have gone through the season with our clients, what we have learned is that the magic of the season finds its way into even the most difficult of circumstances. Clients with serious and painful injuries, a mom or dad with small children experiencing their first holiday season apart after a separation, clients in many other difficult circumstances, they still manage to find the joy and hope that is the foundation of the holidays. Surprising? Not really. Irrespective of all of the differences that are often played on by some trying to promote their own agendas, when all is said and done there is a basis goodness and a basic worth to every human being and that is underscored by the holidays and the spirit of the season.

            It is a basic belief in the goodness and worthwhileness of each individual that we look at when we are dealing with a client in crisis. It is a similar approach we also use when dealing with adversaries. That may be difficult at times because of the adversarial nature of our system. However, what makes an adversarial system work is respect for an opponent and an assumption the opponent has gotten to his or her position in a good faith fashion.  Reasonable persons can disagree and dissenting positions should be addressed with respect and not with opprobrium or belittling. Parnell, Michels and McKay brings that approach to all of our adversarial dealings. We believe that approach is how the system was originally envisioned and when implemented what make it work

            So, at this time of year, we reaffirm this approach to the practice of law and at the same time we encourage all to treat others with respect, with compassion and understanding, be they friends, adversaries, or somewhere in between. Because deep down all are worthy and deserving of respect and no time like the holiday season to reaffirm that mutual respect.

In closing we would like to share the following quote from Nelson Mandela:

"No one is born hating another person because of the color of his skin or his background or his religion... People must learn to hate, and if they can learn to hate, they can be taught to love... For love comes more naturally to the human heart than its opposite."

Happy Holidays from Parnell, Michels and McKay

Christmas Party - PMM edition

            With just a few days before one of the biggest holidays of the year, many businesses choose to reward their employees by throwing holiday parties. These festive celebrations can help reward the employees for the company’s good year while inspiring thoughts of togetherness and good cheer. However, how often do we hear about the raucousness of some holiday parties? It seems like every year, there is some national news story about allegations of sexual assault or other wildly inappropriate and dangerous behavior by superiors to subordinates or co-workers to other co-workers (e.g. this story about a supervisor who installed a stripper pole for his employees). Often, these bouts of horrendous behavior are spurred on by alcohol. Many pop culture staples have taken on the “office party” tableau, including The Office and Mad Men. In fact, this year, Dreamworks and Paramount released a movie playfully mocking these workplace gatherings in the appropriately titled, “Office Christmas Party”. While these media mainstays may have us joyfully laughing at the actions of fictitious characters, these events cannot be treated as a laughing matter for employers.

            Employers ought to be concerned with the actions of employees who may have imbibed a tad too much at their holiday gatherings. If that employee gets into an accident on the way home from such a gathering, the employer may have significantly more to worry about than terminating an employee with poor decision making skills. While Courts in the “Live Free or Die” State held that “it is the drinking, not the providing, of alcohol that causes the harm,” duties for employers will still develop if they serve as their employees’ social host. Hickingbotham v. Burke, 140 N.H. 28, 34 (1995).

In New Hampshire, the law focuses on who provides the alcohol and where it is provided. While there is more than one theory of recovery, a quick primer on the law of social hosts and respondeat superior may help guide employers through the holiday season. Consider the following scenario: Smaller businesses may consider buying and providing alcohol to their employees at an office gathering at work to save some money. For peace of mind, these smaller businesses are better served by hiring a bartender for the event and/or renting a separate location. While larger business may not have the financial concerns that smaller businesses have the advice applies to them in the same measure.

            Without the separation of location and alcohol provider, business maybe looked at as a social host, or worse yet, as holding the party within the confines of employees’ scope of work. Both theories are fact based inquiries that will target the exact who, what, where, when, how, and why of the party and the alcohol served. If the employer is considered a social host, an injured third party would need to show that the social host placed their guests in such a position that the host “consciously disregarded a substantial and unjustified risk of a high degree of danger” through the (over) provision of alcohol to their guests. Id. at 33. The theory of respondeat superior would require the injured party to prove that the employer imputed upon itself a duty to third parties by holding an office party that was within the scope of the employee’s job, not as an employee individually. See Estate of Thompson v. McClure, 2001 N.H. Super. LEXIS 21, *4–5 (Super. Ct. 2001) (quoting Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485 (1995)); see also Everitt v. Gen. Elec. Co., 159 N.H. 232, 238 (2009) (leaving the door open for recovery under the theory similar to respondeat superior but for unrelated parties). Thus, by having off-campus parties, with separate bartenders, on time or days that are not during work hours, employers separate themselves from the actions of their employees. Employers do well to remember that while third-party liability is difficult to prove, it is not impossible. Thus, it is best to operate under the motto of, “spend a nickel to save a dime”.  

            Christmas, and all the holidays celebrated this season, should be fun events that leave you with happy memories for a lifetime. Unfortunately, these times do not always pan out the way you hope. If you have been injured by slipping on a poorly shoveled walkway, you have had a car accident during icy conditions, the holiday money crunch has left you thinking about bankruptcy, or you are simply considering about divorce, the attorneys at Parnell, Michels & McKay can help. We seek to counsel people through life’s difficult moments with personal empathy and countless years of legal experience. If you are interested in learning more about some of the topics mentioned in this post, or you have a pressing legal concern, please contact us to learn more. Let us help you get back to having a happy holiday season.   

THE CASE OF THE DNR ORDER TATTOO

            Most of us have heard the story about the unconscious patient brought to an emergency room in Florida with “Do Not Resuscitate” tattooed across his chest.   The seventy year old man had chronic obstructive pulmonary disease, in addition to other ailments.  

Getting a tattoo to express one’s wishes to not receive cardiopulmonary resuscitation (CPR) may hold some attraction.  After all, the patient’s wishes would seem to be clear and there is no need for your loved ones to rush to the hospital with your DNR request or health care proxy.  But, in fact, it has the opposite effect.  Emergency medical responders would be faced with a dilemma.  If just the letters “D.N.R.” are tattooed, the responders may not immediately see the tattoo or they may not be confident in what the letters represent as it could be the patient’s initials or the initials of a loved one.  It could be that the tattoo was the result of a drunken night gone wrong, such as the case with a patient who was in the hospital for complications related to diabetes.  When asked about the DNR tattoo, he indicated that he had lost a poker bet while inebriated but he wanted CPR if it would prolong his life.  More importantly, if the tattoo is determined to not be legally recognized and the first responder had not resuscitated a patient who could otherwise be saved, he or she may face legal consequences.    Finally, a tattoo is permanent and does not allow the patient to have a change of heart as to their instructions unless they undergo expensive tattoo removal.

            In the case of the Florida patient, the man did not have any identification with him so the hospital delayed implementation of the DNR order.  The hospital only began to honor the patient’s wishes when the hospital’s ethics staff determined that it would be reasonable to assume the tattoo represented the patient’s wishes.  The patient was finally identified and a legally binding DNR order was found which had been signed by the patient.  We recommend that our clients prepare legally binding documents, such as a health care power of attorney or living wills, rather that the use of tattoos to express end-of-life wishes.

            Does your family know what your wishes are with respect to your healthcare in the event you are unable to communicate with your medical care professionals?  There is no need to get a tattoo!  We offer various forms of estate planning depending on each client’s goals and needs, including health care powers of attorney and living wills. Contact us if you want to avoid the situation this man in Florida found himself in, and if you are in a difficult situation, we handle probate litigation as well. 

Closing of Supervised Visitation Centers Complicates Contested Parenting Cases

          The Greater Nashua Supervised Visitation Center is expecting to close its doors at the end of the year due to a lack of federal funding.  This closure further reduces the options available to parents needing supervision of their parenting time.  Since the 2014 closing of the Manchester YWCA supervision center, only a handful of supervised visitation centers remain in New Hampshire. In 2016, Focus on Families opened in Manchester, filling part of the void.  However, due to the limited hours each of the centers offer for supervision services, there is often more cases needing supervision than time available to supervise.  With the closing of the Greater Nashua Supervised Visitation Center, the shortage of available supervision will only increase. Supervised visitation centers serve an important role in family law in New Hampshire.

          The need for supervised visitation services is generally as a result of child abuse or domestic violence, but can also be the result of drug or alcohol abuse. Supervision can sometimes be limited to the parenting exchanges.  This is often necessary if the parents are not permitted to have contact due to a domestic violence or other restraining order.  However, supervision is often needed for the entire time the children spend with a parent.  When visitations are fully supervised, a caseworker is present in the room and monitors the entire visit.  The caseworker also prepares notes about the visit, and can also intervene if the parent is behaving inappropriately. If necessary, the caseworker can terminate the visit.

          As we face the closing of Greater Nashua Supervised Visitation Center, we are left with only one available supervision center in southern New Hampshire.  If the parents do not have family members willing or able to supervise a visit, parents may be forced to travel out of state to find supervision.  Alternatively, parents may be unable to spend any time at all with their children. As a result, there are many different considerations being made as to how to deal with the problem, including increased counseling requirements, completion of anger management classes, and other ways the Court can compel a parent that needs supervision to seek help.

          If you are facing a need for supervised visitation for your ex, or even for yourself, the experienced attorneys at Parnell, Michels &McKay can assist you in obtaining the appropriate family law relief for your case. Contact us if you need assistance for your case.