Bar News - January 5, 2007
Family Law Practice Tips from the Trenches
The following is a compilation of recent reports from the Family Law Section listserv, largely based on dialogue at a family law brown bag discussion with marital masters at the Merrimack County Superior Court, a recent marital mediators meeting, and a NH Women’s Bar Association CLE on Family Law developments. Most of the information came largely from a report by Judith Fairclough, of Orr & Reno, with additional comments from Honey Hastings, Counselor at Law in Wilton.
Attorneys in the family law area are closely watching developments as the transition from superior court jurisdiction to family division continues, and as the courts around the state adapt to new laws and processes as well as chronic staff shortages. At recent informal discussions between court administrators, marital masters and family law attorneys, the following pointers were offered to make the best of difficult situations:
Attorneys can help with scheduling issues: Given the current reduced staff, attorneys can help by keeping phone calls to the court to a minimum. For example, do not call to ask when an objection is due. If a call needs to be made, in order to avoid misunderstanding information that is sought or offered, the attorney should call rather than have a secretary or legal assistant call.
Practice and procedures which will increase court efficiency: If you want affirmative relief, do not ask for it in an objection—file a separate motion. Come with a proposed order to all motions’ hearings. This will not only expedite orders but will reduce the need for post-judgment motions for clarification and reconsideration. Do not append documents, e-mails and letters to pleadings, as the clerk’s office will remove them. If you are scheduled for a hearing on a day that you are not available, contact opposing counsel, try to come up with alternative dates, then call the clerk’s office and follow up with an assented-to motion to continue.
Look at the time allotted in your notice-of-hearing and if it is not sufficient, send a letter to the court right away asking for more time. You will either get more time or the clerk’s office will suggest that you file a motion to continue.
Often, there is a flurry of motions filed prior to a status conference or pretrial—do not expect that such motions will be heard at the pre-trial or status conference unless a revised notice has been issued. Consider filing a motion to have the status conference converted to a motions’ hearing if the motions have been filed appropriately in advance. Better yet, do not wait until the last minute to file such motions so that the court can schedule them accordingly. Financial affidavits need to be accurate, not sloppy. Make sure all your numbers are consistent throughout and that expenses are calculated on a monthly basis. Exchange documents and proposed orders with opposing counsel in advance, prior to the hearing, preferably not as the court is convening. If you are appearing at an ex parte hearing, come with information relative to attempts to notify the other side and the results of those attempts. Bring a proposed order.
Consider settling before filing. Before filing a petition, review what court involvement the case needs. Does the case need a temporary hearing, and possibly an automatic restraining order? If the answer to both is “no,” consider trying to settle before filing. This cuts down on court processing time, meaning cases where the answer to either is “yes,” could get handled more quickly. As you are drafting a settlement proposal, contact the other spouse and ask if he or she has counsel. You could refer your client to mediators whose approach and skills you are comfortable with. (And while you’re at it, get the client—and spouse, if possible—to attend the child impact program. (From Honey Hastings.)
Court-referred mediation. As of Jan. 1, 2007, the court can order “no child” cases to mediation. (See RSA 458:15-c). While the mediator cannot dictate whether an attorney can be present, the mediator can control how the mediation is to proceed. The court will try to accommodate preferences for specific mediators. Attorneys and clients need to understand that it is unlikely that a case will settle in the first mediation session and it is more likely that between two and four sessions will be required. However, the court-referred rate applies to future mediation sessions in that case. In advance of the mediation, be sure the mediator has the financial affidavits, a list of the issues, and a copy of any restraining order. Some mediators want proposed orders, others don’t; if you are not sure, contact the mediator. Either bring proposed orders to mediation sessions or provide them to the mediator in advance. Remember that the goal of mediation is not only to settle the case but also to try to teach the parties how to communicate and reach decisions together.
Child Impact Program (CIP) compliance: Make sure clients are aware of the CIP requirement. The best time for your client to sign up for CIP is right after the first consultation with you. The children will benefit more if parents have the information earlier. Superior courts are taking a more active role in enforcement and the Family Division will be even more proactive. While a divorce will not be held up because of non-attendance with CIP, the court will not only seek enforcement but may issue contempt findings. CIP compliance will reduce the court’s need to follow up and enforce the CIP requirement which currently takes up a great deal of the court’s time.
Pro se litigants: Attorneys should not be afraid to approach the pro se litigant prior to a hearing to exchange documents and proposed decrees. Make sure the self-represented litigant has your pleadings, exhibits, etc. prior to a hearing.
Security: Do not be afraid to ask for additional court security for mediations scheduled at the courthouse or at hearings.
New GAL reporting law: Read RSA 490:26-9. Now that the court is to report and fine GALs who don’t submit their reports on time, be realistic about those deadlines and be cooperative with the GAL regarding releases for information. Consider alternatives to GAL, such as mediation.
Editor’s note: Under listserv guidelines, messages are not to be distributed or forwarded to users not on the list. Due to the timeliness and value of this information, the Bar Association staff asked the authors for permission to share their posted comments, and adapted them for this article.