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Bar News - November 18, 2015


Family Law: When Does a Divorce Decree Take Effect?

By:

“When will I be divorced?” This common question should be easy to answer, but often it is not. The answer controls legal and practical deadlines for liquidating assets, quit-claiming real estate deeds, paying support, completing a uniform support order, and adjusting parenting time. Separate but related issues are when to start counting for an appeal deadline, and what orders are in effect pending an appeal.

Ambiguity can lead to confusion among litigants and attorneys, and sometimes can cause disputes between parties, particularly if one thinks the decree has become effective and begins implementing its provisions prematurely. Depending on how long this continues, when the error is realized, it can be difficult to revert to a temporary parenting plan or unwind property transfers. If there are hopes for wedding a new partner, it even concerns bigamy, which is a felony.

Family Court Rule 2.29 should answer the question, but it is unclear on several points, and two decisions of the New Hampshire Supreme Court further confound. See Gray v. Kelly (2010) and State v. Looney (2007). There may also be a hole in the rule whereby if there are no temporary orders and an appeal is filed, a party can be divorced, but then un-divorced a month later.

Consequently, the Supreme Court Advisory Committee on Rules has proposed amendments to Family Court Rule 2.29. If adopted, the answer to the question, “When will I be divorced?” will hopefully be clear to represented and pro se parties, judges, clerks, and lawyers.

Effective Date in Uncontested Cases Unchanged

The current rule says that the effective date of a stipulated decree is when the judge signs it, unless the court specifies a different time. FAM. DIV. R. 2.29A (2015). While the application of this rule can sometimes be awkward because parties receive the final decree in the mail and learn they were divorced weeks ago, Rule 2.29(A) is straightforward and there is no proposal to substantively change it.

Because of this delay, it may be wise to avoid designating the effective date as the date to divide assets, and agreements can specify some other time the decree will become effective. This is most common, for example, late in the year, when parties may agree to an effective date of “on or after January 1” to allow for joint tax filing. Health insurance coverage, other durational legal requirements, or start of the school year may also be reasons for a later agreed-upon effective date.

Proposal to Make Certain Orders Immediately Effective

For contested cases, the proposed rule takes a categorical approach to finality. Specifically, some types of decrees, such as restraining orders, support, and parenting arrangements, generally should be effective immediately. Others, such as property division and marital and parental status, generally should be effective at the end of litigation. And still others, such as relocation, might depend on the circumstances.

Thus, proposed Rule 2.29(B)(1) provides that, by default, certain orders go into effect immediately “upon the announcement” by the court. These are temporary orders, parenting plans, child support, spousal support, and “provisions concerning the welfare of a child or the safety of a party.” The court retains discretion to specify a different date.

This categorical approach is a departure from the current rule. It is, however, in accord with the legislature’s understanding that orders concerning children involve considerations of timely enforcement, see, e.g., RSA 458-A:29; RSA 461-A:8, and the Supreme Court’s admonition against “the shuffling of a child back and forth between” parents. See In re Kosek (2005). It also reflects judges’ and family law practitioners’ recognition that temporary orders, which may be based on a half-hour offer-of-proof a year earlier, do not reflect children’s present ages or parents’ current finances, and thus that implementation of the most recent intelligence on these matters is in the best interest of children.

Proposal to Make Non-Immediate Orders Effective Later

Proposed Rule 2.29(B)(2) applies to all other types of contested cases, making orders effective on the 31st day, and also continues the current policy, allowing the court discretion to alter effective dates. See, e.g., In re Stapleton (2010).

Cases Involving Post-Decision Motions

Proposed Rule 2.29(B)(3) does not alter any aspect of post-decision motions. The decree goes into effect on the 31st day from the clerk’s notice of the decision on that motion.

As with current law, a timely filed post-decree motion stays the running of the appeal period, but successive ones do not. SUP. CT. R. 7(C) (2015). If a post-decree motion creates a “newly-losing party,” and the newly-losing party timely files a motion for reconsideration, the appeal period is further stayed. Id.; see Petition of Ellis (1993). Post-decree motions that stay the appeal period include efforts to recover attorney’s fees. Van Der Stok v. Van Voorhees (2005), quoting Germain v. Germain (1993).

Also unchanged is that an untimely-filed post-decree motion will have no delaying effect. Sup. Ct. R. 7(C) (2015); Germain v. Germain (1993). The family court may waive the untimeliness, but it must be waived “within the appeal period.” Moreover, the family court’s waiver must be express – merely ruling on the untimely motion does not delay the Supreme Court deadline. Sup. Ct. R. 7(C) (2015). There is no change to the deadline for an appeal, which is “within 30 days from the date on the clerk’s written notice of the decision on the merits.” Sup. Ct. R. 7.

In the Event of an Appeal

Proposed Rule 2.29(B)(4) continues the current policy that if a party files a timely appeal, temporary orders continue in effect. See In re Nyhan (2005); Nicolazzi v. Nicolazzi (1989); Rollins v. Rollins (1982) (“Normally, by timely appealing the trial court’s final decree, the defendant would prevent it from going to judgment and the temporary decree would remain in effect.”).

Proposed rule 2.29(B)(4) changes current policy, however, with respect to those types of immediate orders specified in section 2.29(B)(1) – parenting plans, child support, spousal support, and “provisions concerning the welfare of a child or the safety of a party.” Like temporary orders, they would be in effect during an appeal.

The proposed rule also clarifies that all orders except those listed in proposed Rule 2.29(B)(1), including those on marital or parental status and property division, go into effect at the conclusion of an appeal. This continues the current policy of discouraging bifurcation of marital and parenting cases on the grounds that having to undo a divorce later can be messy and that property divisions cannot be easily undone.

The proposed rule also leaves intact current law which, during pendency of an appeal, allows the family court to rule on matters that are “collateral, subsidiary or independent” to the issues on appeal, and “to preserve the status quo.” See In re Nyhan (2005); Rautenberg v. Munnis (1966). Within that scope, the family court maintains the authority to adjust orders on probably any issue, including child support and alimony to be paid during an appeal, the terms of restraining orders, and disposition of property, even when those issues are part of the appeal. The commentary to Supreme Court Rule 7-A provides a helpful explanation of this authority.

Finally, the proposed rule spells out that after an appeal, the effective date is not the date of decision, but the date of the Supreme Court’s “mandate,” which can be weeks later. SUP. CT. R. 24 (2015); State v. Gubitosi (2005).

Comments Sought on Proposal

The rules on family court finality should make the “When will I be divorced?” question definite and easy to answer. Proposed Family Court Rule 2.29 is available in the rules committee section of the NH Judicial Branch website. Practitioners are urged to review it and make suggestions for improvement. The Rules Committee will hold a public hearing at 12:30 p.m., Friday, Dec. 4 at the NH Supreme Court. Written comments can be submitted to rulescomment@courts.state.nh.us.


Joshua Gordon

Joshua Gordon practices appellate litigation in Concord, NH, before both federal and state courts. See www.AppealsLawyer.net. He is a member of the New Hampshire Supreme Court Advisory Committee on Rules.

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