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Bar News - February 13, 2009


When Does a Divorce Decree Actually Become Effective?

By:

Heather Krans

The effective date of a divorce depends on whether the case is contested or uncontested. A "contested" case is one in which the court issues a decision after a final hearing. An "uncontested" case is one that is resolved by a permanent stipulation. The rule is clear that an uncontested divorce is final on the date that the judge signs it, unless the court specifies a different date. See N.H. Fam. Div. R. 2.28 (2009); N.H. Super. Ct. R. 208 (2009). Even if a marital master recommends the divorce, the operative date is the date that the judge approves the recommendation. While the application of this rule can be awkward – it often results in the parties receiving the final decree in the mail and learning that their divorce was effective weeks ago – it is reasonably straightforward.

The rules are substantially more complex in the case of a contested divorce action. This can lead to confusion among litigants and even attorneys. Such confusion often results in disputes between the parties. Serious complications can ensue when one party believes the divorce decree has become final and begins implementing its provisions prematurely. Such a situation can be especially problematic where parties begin implementing the terms of a final parenting plan before the divorce is final, and one party appeals the final decree. Depending on how long this continues, when the parties realize their error, it can be difficult to revert to the temporary parenting plan.

  A contested divorce is effective 31 days from the date of the clerk’s notice of decision, assuming that no post-decree motion has been filed. See N.H. Fam. Div. R. 2.28 (2009); see also N.H. Super. Ct. R. 74; 209 (2009). If a timely post-decree motion is filed, the decree will be effective 31 days after the clerk’s notice of the decision on the post-decree motion, assuming there is no appeal. A timely filed post-decree motion stays the running of the appeal period, but a successive post-decree motion will not. See N.H. Sup. Ct. R 7 (2009). If there is a timely appeal, the decree will not become effective until the conclusion of the appeal. See N.H. Fam. Div. R. 2.28 (2009); N.H. Super. Ct. R. 209 (2009).

Thus, a contested divorce will be effective on the later of the following: 31 days after the date of the clerk’s notice of decision, 31 days after the date of the clerk’s notice of decision on a timely filed post-decree motion, or after the conclusion of an appeal to the N.H. Supreme Court. On a practical level, this means that if a final decree of divorce is appealed, the parties are not divorced until the conclusion of the appeal. 

  One reason for the confusion surrounding the effective date of a contested divorce decree is the rule that a motion for reconsideration will not operate to stay a court order. See N.H. Fam. Div. R. 1.26 (2009); N.H. Super. Ct. R. 59-A (2009). Litigants sometimes take the position that a final decree is in effect because it is not stayed by the motion to reconsider that has been filed. A review of Family Division Rule 1.28 or Superior Court rules 74 and 209 make clear that this position is not correct. While a timely filed motion to reconsider does not stay the final order, it does delay the effective date. The final decree is not stayed; it’s just not effective yet.

A related issue is what orders are in effect during the pendency of appeal. Unless the trial court provides otherwise, the temporary orders govern during the appeal period. See Rollins v. Rollins, 122 N.H. 6, 9 (1982). It is clear, however, that the trial court has the authority to make orders as to what level of child support and alimony shall be paid during an appeal. See id. The comments to NH Supreme Court Rule 7-A provide a helpful explanation of this area of law. See N.H. Sup. Ct. R. 7-A.

When drafting a proposed final decree, consider adding a provision specifying the level of support to be paid during an appeal. If there is no such provision in the final decree issued by the court and the case is appealed, consider filing a motion with the trial court seeking to implement provisions of the final decree during the pendency of the appeal as further temporary orders.

Heather Krans is a family law attorney with Wiggin & Nourie in Manchester.

 

 

 

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