I have written before of the frustration I feel for my clients who do not understand why Family Court judges in Vermont seem to be reluctant to enforce family court orders. Recently in three separate cases clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client. I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.
What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire? Let’s look at the rules. Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party. In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court. A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.
Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children). Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing. This rule applies in both ongoing cases, and in closed cases.
Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.” Emphasis added.
Thus the rule not only requires costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial discretion on what is a “clear and substantial”. violation. As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial. Here is where I believe the Vermont rule needs to be changed. The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order. Why? Two reasons: First, because as the survey respondents indicated, the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously. Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt. Litigants should not be put in that position.
New Hampshire’s Family court contempt rule has less onerous procedures than Vermont’s. Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding. However, if there is an ongoing proceeding, a New Hampshire litigant need only file a motion with no affidavit, and service need only be by first class mail. There is no provision for a period of time for the alleged contemnor to answer.
Substantively, there is also a large difference between the rules concerning a finding of contempt. New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt “upon a finding of the violation of any Court order”. Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont; merely that the order has been violated.
New Hampshire’s rule makes more sense. First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont. To require an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator. Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders. Americans believe strongly that court orders should be strictly enforced. After all, as one client said to me, if a court won’t enforce its own orders, who will?
Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished, without having to shoulder the heavy burdens imposed by Vermont Family Rule 16.
- http://bescully.com/?page_id=45283 generic antabuse australia “Unbundling” legal services: In the past, if a lawyer was representing a client in family court, the lawyer was required to represent the client in all aspects of the case. This sometimes resulted in duplication of services and additional unneeded legal expenses. For example, while a client may need a lawyer to represent him or her in a child custody matter, the client may not need the lawyer to assist in child support issues. However, the rules used to require the attorney to be present at all hearings and proceedings. Now Vermont Family Proceedings Rule 15 (h) and New Hampshire Family Division Rule 1.19 allow an attorney to file a limited appearance, provided that the requirements of VRFP Rule 15 (h) or NHFDR 1.19 are met. Thus if you believe you need an attorney’s services for only part of your family court proceeding, and are able to represent yourself in other aspects of the case, your attorney can file a limited appearance for the part of the case where you need legal assistance.
- http://sonority-audio.nl/?page_id=72333 lasix dosage Obtaining an attorney’s advice while representing yourself: Most attorneys will be glad to give you advice about your case without requiring you to hire them to represent you in court. You can seek advice during any part of the proceedings, but I believe it is particularly important to talk an attorney about any agreement you have reached before signing the agreement. An attorney can help make sure the language in the agreement properly expresses what you agreed to. More importantly, an attorney will often be able to point out areas which may not have been covered, or pitfalls you may not have thought of. Attorneys can also assist you in drafting pleadings or agreements, but remember in New Hampshire, you must notify that court that a New Hampshire licensed attorney drafted the court pleadings.
- buy generic propranolol 40 mg Educating yourself: Whether or not you hire an attorney, it is good advice to go to the Vermont or New Hampshire Judiciary pages to obtain information. Both the Vermont Judiciary Website and the New Hampshire Judiciary Website have good information for parties involved in family court litigation, and litigation forms that you can fill out yourself here and here.
- Obtaining and organizing financial documentation: Whether you are represented by an attorney or representing yourself, gathering and organizing financial documentation is a sound way to reduce attorney time and costs. In our office, if we are representing clients in Vermont Family Division, we provide the client with Form 813 A and 813 B, the financial affidavits required by the Vermont Family Court, and a checklist of documents we need—generally documents supporting the disclosures on the 813 forms. Vermont Family Court now only requires tax returns, pay stubs, and health insurance information—information necessary for child support determinations. We ask clients to provide the additional documents because they are necessary to determine property division and spousal maintenance. In New Hampshire, the Family Division requires a financial affidavit form and in the near future will also be requiring “Mandatory Initial Self Disclosure” (Family Division Rule 1.25A) which will require the same type of documents this office already requests our clients provide to us. Obtaining and organizing financial documents may seem onerous, but it will save time and money because you will need that information whether there is a contested hearing or a negotiated settlement.
- Where does my property go if I do not have a will?
If you do not have a will, the state will distribute your property by what is called the laws of intestacy.
Each state’s intestacy laws are different.
For example, In New Hampshire, the first $250,000 of your estate, whether real or personal property, would go to your spouse. After $250,000, your estate is divided between your spouse and your children.
In Vermont, only one third of your estate will go to your spouse if you have two or more children; and two thirds of your estate will be divided up among your children.
If you are not married and have no children, in both New Hampshire and Vermont, your estate will go to your parents.
In neither state will your assets go to any unmarried partner who is living with you.
The intestacy laws will distribute your property the way the State believes it should be distributed, not the way you want it distributed.
- Do I need a will to take care of my minor children?
Yes. If you die and have minor children, the other parent will automatically be awarded custody of your children, even if you are no longer married to him or her and custody was awarded to you. However, a will with a trust provision will ensure that the person you designate will be in charge of the property and income that your children receive at your death. In addition, if your children have no other fit parent surviving, the guardian for your children whom you designate in your will, if he or she is fit, will be appointed by the court as guardian.
- Do I need a will to make sure the state does not take my assets?
Generally, no. The only time the state would take your assets is if you have no relatives. The intestacy laws in Vermont provide that your relatives as distant as third cousins will inherit your assets; and in New Hampshire, relatives as distant as first cousins will inherit. Therefore, unless you have no relatives, there is no danger that the state will take your property if you do not have a will.
- Can a will protect my estate from taxes?
Yes and no. A simple will does not protect your estate from federal taxes. You will need a more complicated estate plan, including a will, to minimize your tax burden. As of 2009, there
is no federal estate tax on any estates valued at less than $3,500,000, so most people do not need to be concerned about tax planning. However, the estate tax laws may be changed dramatically by Congress in the near future; therefore it is important to talk to your attorney about those changes.
- Are there other benefits from executing a will?
Yes. You can designate an administrator in your will, and the court will appoint that person. You can also provide the administrator with more powers than allowed under the probate statutes.
In addition, you can set up a trust in the will which will control how your property is managed after your death.
Finally, you can make it easier for your heirs to divide up your household and personal effects. This is often the least valuable property in your estate, but is often the property that your heirs will more likely argue over because your personal effects have sentimental value. Giving your administrator power to make a final determination as to how to divide such property can save everyone time and emotional heartache.
- Are there any disadvantages to making a will?
Yes. Once you make a will, its provisions will govern how your property will be divided after your death, no matter how your circumstances change. There may be deaths or divorces in your family; you may have a child who has special needs, your assets my have grown so that tax planning is necessary. Finally, the laws may change so that your will does not protect your assets as you planned when you executed the will. A good example is the tax law, which is slated to change dramatically in the next few years. It is best, then, to review your will every three years, and every time there is a major change in your family circumstances or assets. Your lawyer should be reminding you to update your will every few years, or whenever there is a major change in the law.
- Where should I keep my will?
You should keep it where your heirs can find it immediately after your death. For example, a safe deposit box or a locked safe is not a good place for a will if your heirs do not have access to the box or know where to find the key to the safe. So it is best to plan to put your will in a safe place that will be accessible to your heirs after your death. Your attorney may offer to hold your will in his or her office. In that way, the attorney can notify your heirs at your death as to the location of the will.
- Do I need an attorney to help me with my will?
Generally, yes. While there are good online programs for drafting wills, a lawyer will review in depth your assets, your wishes, and talk to you about any potential pitfalls. A will is drafted to take into account, as much as practicable, what may happen in the future, and a review by a lawyer of your circumstances will can better help you predict and take into account any future contingencies when drafting your will.
In addition, a lawyer will be able to let you know if you need more complicated estate planning for either tax purposes or Medicaid planning. Finally, most lawyers will safeguard your will, and remind you of any legal issues that may come up in the future that will affect your will.