Tuesday, October 21, 2014

When do I need a divorce or family law attorney?

At Hamblett & Kerrigan we have the resources and experience to provide you with high-quality legal representation in even the most complex family law matters. We handle divorces, same-sex divorces and family issues, nontraditional family issues, post-divorce modifications, complex parental rights issues (custody and visitation issues), grandparent visitation issues, family business divisions, alimony awards, child support matters, adoptions and domestic violence issues.

We have extensive experience in handling such matters as valuing professional and closely held business, division of pensions and retirement accounts, dealing with alimony and child support issues, and negotiating workable, lasting parenting arrangements. We also have extensive experience in both prosecuting and defending against fault-based divorces, such as adultery, habitual drunkenness, conduct to injure health and/or reason and extreme cruelty cases. Our attorneys provide sensitive and caring representation in the most difficult cases involving domestic violence. At Hamblett & Kerrigan, we understand that family law matters often involve emotional, personal and financial stress, changes in family structure, and in some cases can involve your physical safety. All of your communications with our office will be held in the strictest confidence and handled with the utmost propriety and sensitivity.

Allow Hamblett & Kerrigan to be there, by your side, to give you a legal advantage.

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Monday, October 20, 2014

How To Prove Adultery In New Hampshire

Many people are under the misconception that in order to prove adultery there must be either photographic or videotape evidence of the sexual intercourse. This is not so. While video and photographic evidence is helpful, it is not required. Instead, circumstantial evidence of both opportunity and inclination are considered sufficient evidence on the issue of adultery.

The New Hampshire Supreme Court has outlined that adultery is "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband." Accordingly, a divorce may be granted if it is shown that one spouse engaged in an adulterous relationship, and the adulterous relationship was the primary cause of the breakdown of the marriage. In describing what is required to prove adultery, the New Hampshire Supreme Court has stated “it is a matter of common knowledge … that eye witnesses are not usually available in adultery cases so that circumstantial evidence of both opportunity and inclination is considered competent evidence on the issue of adultery.”

Inclination is nothing more than establishing that the cheating spouse had the desire to engage in sexual intercourse with another not his or her spouse. This is often time established by evidence of e-mails and text messages between the parties or through cell phone records establishing contact of long duration or during unusual hours. Evidence of inclination can also be established by testimony of witness who have observed inappropriate comments and/or contact between the spouse and his/her lover.

Evidence of opportunity may be established by evidence of the cheating spouse and his or her paramour either entering or exiting house or hotel; or spending time alone in an automobile in a secluded place. This evidence is often derived from an eye witness testimony, whether it be a friend, neighbor or a private detective. Evidence of opportunity can also be established by e-mails wherein the cheating spouse acknowledges being alone with his or her paramour, even if it does not state that they had sexual intercourse. Courts have found such e-mails sufficient circumstantial evidence in order to grant a divorce on the grounds of adultery.

Even though you may have significant evidence of inclination and opportunity, that is not sufficient, by itself, to obtain a divorce on the grounds of adultery. The innocent spouse also must prove that the adultery was the primary cause for the breakup of the marriage. While most marriages experience difficulties, these difficulties, in and of themselves, are often not sufficient to defeat a claim of adultery. Sometimes, however, a marriage may be broken down well before the adulterous act. In such cases, the court may not grant a divorce based upon adultery.

Even if a spouse proves the existence of an adulterous relationship and that the adulterous relationship is the primary reason for the divorce, the innocent spouse is also required to prove that the adultery caused either substantial emotional harm to him or her, or resulted in a substantial financial loss to the marital estate.

If you have any questions regarding an adultery claim, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Wednesday, October 8, 2014

Wrongful Termination

Employers seek to hire and retain workers who not only can do the job, but show enthusiasm while working and perform the job effectively. Some workers shortly after being hired and others, perhaps later, become lackadaisical related to their job performance. When dealing with such a worker, it is best to provide a clear review identifying the dissatisfaction that management has with the worker’s performance along with identifying what the worker is doing well. Not only is this fair to give that worker an opportunity to “shape up or ship out”, it also protects the company when, after firing that worker, he claims it was because of some legally protected right of his; whether it be race, religion, gender, disability, or taking statutorily protected medical leave.

In the case of Alex D. McMillen v. Concord Hospital, the New Hampshire federal court trial judge on September 22, 2014 found that Alex McMillen’s claims violations of the federal Family and Medical Leave Act (FMLA) and wrongful termination against Concord Hospital could not go to a jury and granted the hospital summary judgment after it showed a clear record of informing him of his the performance deficits and treating him fairly. McMillen had been employed as a security officer prior by Concord Hospital. He had a motorcycle accident and thereafter took FMLA leave. He later claimed that he had become depressed because his injuries precluded his goal of later going into law enforcement. In a very well detailed and documented performance evaluation he was informed about his “I don’t care” attitude and noted that when McMillen was interested and motivated he was a capable, if not laudable, employee, yet he had become disinterested. Ultimately, McMillen was fired for being insubordinate in failing to follow a clear policy to not be seated when dealing with a volatile patient; an action that was similar to the prior negative performance reviews of his lackadaisical attitude. The policy was in place so that the security guard would be ready to act if the volatile patient got out of control and so that his own seat could not be used as a weapon by the patient. For all of us that have been in a hospital when a volatile patient needs to be restrained, the common sense of this policy is obvious. McMillan’s firing was deemed by the trial judge as justifiable upon which no reasonable jury could conclude otherwise, notwithstanding his claim that it was a result of him previously taking medical leave and his perception that the Hospital was fearful that he would take leave again for complications related to that accident. The Hospital’s performance evaluation had clearly pointed out that McMillen was capable of doing his job when he was interested, yet his lackadaisical attitude was unacceptable.

When an employee has been suspended, fired, or has another adverse employment action taken against him because of his lack of effort that is clearly documented, the company is generally in a good position to protect itself from a claim brought by that worker, as was Concord Hospital. Even though McMillen argued that his performance issues were because of his depression that did not relieve him from trying to perform his job.

Lastly, the Court also addressed a non-statutory wrongful termination claim under state law. To prove such a claim, McMillen would have had to show that he was terminated out of bad faith, malice, or retaliation and that Concord Hospital terminated his employment because he performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn. The fact that McMillen was insubordinate in directly violating the rule he was aware of did not support a wrongful termination claim. McMillen also stated that he was fired because Concord Hospital perceived that he might take medical leave in the future because of his motorcycle accident. However a New Hampshire non-statutory wrongful termination claim cannot be based upon a worker’s status, but the actions that he took or refused to take.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Monday, September 29, 2014

How to Calculate Income of a Sole Shareholder in a Subchapter S-Corporation or a Limited Liability Company for Child Support Purposes

The issue that predominantly impacts cases involving the calculation of child support with pass-through entities is the amount of income to be used for child support purposes. Businesses with pass-through income are entities which are not taxed itself. Instead, the entity's income is "passed-through" to the shareholders or members of the entity. Subchapter S-Corporations, limited liability companies, partnerships, limited partnerships, etc. are examples of “pass-through entities”.

As outlined in a prior article, federal income tax returns may not be appropriate in determining the income to be used for child support purposes. Instead, the New Hampshire Supreme Court has determined that the proper measure of gross income for child support purposes is deducting legitimate business expenses from the total revenue received. The New Hampshire Supreme Court has stated that business expenses must be actually incurred and paid, and must also be reasonable and necessary for producing income in order to be deductible from business income. The New Hampshire Supreme Court stated that the trial court must scrutinize the parents' financial situation closely and exclude as a business expense any expenditure which the court, in its discretion, finds will personally benefit the parent. When the person who is obligated to pay support is able to control the retention or disbursement of funds from a business, the decisions mandates that such parent has the burden of proving his/her actions were necessary to maintain or preserve the business.

Great care is needed when handling cases of self-employment income or income from pass-through business entities. Please consult with an attorney at Hamblett & Kerrigan if you have any questions in this regard.

If you have any questions regarding the calculation of child support, whether in Massachusetts or New Hampshire, please contact an attorney at Hamblett & Kerrigan to discuss. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Friday, September 26, 2014

Use of Adjusted Gross Income From Federal Income Tax Return Is Not Appropriate in Calculating Child Support

In the Matter of Maves and Moore, the trial court calculated child support using the father's Adjusted Gross Income figure from his federal income tax return. On appeal, the New Hampshire Supreme Court overturned the trial court's use of the Adjusted Gross Income figure, finding "how federal income taxation statutes define income is of little relevance to the interpretation of gross income under the Child Support Guidelines". In support of its finding, the New Hampshire Supreme Court noted that use of the Adjusted Gross Income is inappropriate as it includes deductions for such things as depreciation, discretionary retirement contributions for the father and his current wife, and non-business related rental property losses that were not necessary for producing income. Accordingly, the Maves decision demonstrates that proper knowledge of how to read a federal income tax return is important in a child support calculation.

If you have any questions regarding the calculation of child support, whether in Massachusetts or New Hampshire, please contact an attorney at Hamblett & Kerrigan to discuss. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.