Are You Facing a Payment of Judgement Hearing?
If you have been notified to appear in court for a payment of judgment hearing, you may want to take a look at the New Hampshire statute 524:6-a entitled “Periodic Payment of Judgments.” This can be found on the State of New Hampshire Legislative Branch website.
First and foremost, make every effort to attend the scheduled hearing.
Debtors’ prisons are a thing of the distant past, so you should have no fear of being incarcerated simply because you cannot pay your bills. However, it maybe a different story if you fail to comply with a court order to attend a payment of judgment hearing or if you fail to comply with a court order for payment issued as a result of a payment of judgment hearing.
You will be asked to fill out a financial affidavit which will be either included with the notice of the hearing or provided to you when you arrive at the court. Be prepared to fill out the financial affidavit in as much detail as possible as it will be the basis of any order the court will make regarding your ability to pay. You may also be approached by the creditor or the creditor’s attorney at the courthouse prior to the hearing with an invitation to enter into discussions for a possible payment agreement between you and the creditor.
If an agreement is reached in this manner, it is submitted to the court for approval usually without a court hearing. If you do end up having a hearing before a judge, you may be asked questions about the financial affidavit you completed and possibly additional questions about your financial ability.
April 26, 2013 at 10:44 pm | General | No comment5 Things to Consider Before Starting a Family Business
The SBA says that 90% of all American businesses are family owned or controlled. When small businesses are owned and operated by families, family values and business goals must be balanced. Each family owned business needs to address the issues in their own personal way. However, it is important to keep communications open, identify the issues and develop strategies to advance the family values and the business goals.
A good professional advisor is a tremendous value in aiding families who own and operate small businesses. A thoughtful advisor can lend an objective point of view, act as a neutral stabilizing voice and offer strategies without the emotions of the family relationships. At Welts, White & Fontaine, P.C. we urge family businesses to consider five areas: the business strategic plan, the family strategic plan, a succession plan for the business, the entity structure for the business and the estate plan for the family. Each component must work together and each component balances the values of the family with the goals of the business.
The relationship between the family’s values and mission, and the business goals is a relationship that must be thoughtfully considered. Some families elect to keep the family mission separate and distinct from the business vision. The business is a source of income, but not an integral part of the family reputation and values. Other families adopt the business as the “face” of the family. It serves not only as the funding for the family but also the foundation of the family image.
As a family owned business, the operation of the business must accommodate or incorporate the family mission. The business plan must be balanced with the family strategic plan. What is the family mission? What are the business goals? How does the family business fit into the overall family mission? Who will work for the business? What are the personal and professional goals of each individual family member? Which family members are viable as management? What is the selection process? Are all family members assured of a job? These are many questions that must be answered as a part of the business discussion.
In operating a family owned business, attracting and retaining non-family employees is an important issue. It is important to set an appropriate tone for the business. Businesses need good employees who can expect fair treatment. It is important to establish strategies and guidelines to provide for impartial, fair treatment and to help family members and non-family members know and understand what to expect.
April 19, 2013 at 6:25 pm | Business Law | No commentA Sinkhole of a Different Kind
With all the discussion of sinkholes in the news, I started thinking about a different kind of sinkhole: the financial sinkhole. Perhaps you own a small company and have problems collecting on your receivables or you have made loans that you can’t get repaid. If your customers don’t pay, it can become like a financial sinkhole where you are owed more and more money until you can’t pay your own bills.
Often we try to see the best in people and are open to giving people second chances and then maybe third and fourth chances too, but at some point it becomes necessary to make sure that invoices are accounted for and payments are made. Otherwise, you or your business risk spiraling into a financial sinkhole. Moreover, you may be at risk for never being able to collect the money that is owed to you if you are beyond the statute of limitations period. The statute of limitations is just as its name suggests: a limited period of time in which the law dictates that you have before your time is up to take action. This means that if someone owes you money and doesn’t pay you before the statute of limitations period expires, you may be unable to ever collect that money even if it is owed to you.
If an individual or business owes you or your business money and you have been unsuccessful in getting them to pay you back, then it may be time to contact an attorney who can assist you and advise you on the best way to proceed.
Author: Davi Peters, Esq.
April 4, 2013 at 1:51 pm | Business Law | No commentImportant Changes to the NH Child Support Guideline
Changes to the New Hampshire child support guidelines that take effect on July 1, 2013 will allow higher wage earners to pay less child support than under current guidelines. Under the current guidelines, child support is payable at a consistent percentage of the parties’ net income solely based upon how many children were to be supported. More specifically a parent paying child support under the current guidelines would pay: 25% of the net income for one (1) child; 33% for two (2) children; 40% for three (3) children; and 45% for four (4) or more children regardless of the paying parties’ income. High wage earner parents have argued for years that these guidelines were unfair to them. For example, if a parent earned $125,000 per year, he would pay approximately $30,360 per year (or $2,530 per month) in child support for two (2) children under the current guideline. Parents in that position have argued that children do not require that much in child support especially if the other parent is also contributing to the children’s support. Under the new guidelines set forth in the following chart, that same person would pay approximately $24,000 per year (or $2,000 per month), a decrease of almost $6,400 per year or $533 per month.
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Net income |
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What Are The Rights Of A “Common Law Spouse” Under NH Trusts and Estates Law?
Recently, a 78 year old client who had been living with his 74 year old girlfriend for several years posed a similar question: Does my live-in girlfriend “have rights” to a claim against my estate when I die? The Answer is: It Depends. Fortunately New Hampshire has some guidance from the courts on this increasingly common and murky estate planning issue.
New Hampshire law (RSA 457:39) generally has been held to provide that people who cohabitate and acknowledge each other as husband and wife, and are generally reputed to be husband and wife in the community for a period of three years, until one of them dies, shall be considered to have been “legally married.” Thus, a person who has satisified the provisions of the statute is entitled to a share of the estate of the deceased spouse. But what does the statute actually mean?
Contempt of Court in a Divorce Case
Following a divorce, many people find themselves in a position of hopelessness when their former spouse refuses to comply with a clear court order. However, New Hampshire law provides that a judge may find a person in contempt “upon a finding of the violation of any Court order”.
Upon a finding of contempt, the judge has the discretion to issue a finding which, literally, compels compliance. Any party may request that another party be found in contempt for violating an order of the Court by way of motion or petition, as the case may require. The applicable court rule states:
(1) Open cases. When a contempt action is brought in an open case, a proper filing includes: A Motion for Contempt that explains what court order is believed to have been violated; what specific conduct is alleged to have occurred in violation of the court order; and what relief is being requested of the Court. No filing fee is required. Notification to all parties may be accomplished by regular US mail.
(2) Closed cases. When a contempt action is brought in a closed case, a proper filing includes: A Petition for Contempt that explains what court order is believed to have been violated; what specific conduct is alleged to have occurred in violation of the court order; and what relief is being requested of the Court. A filing fee and personal data sheet are required. Notice to the party alleged to be in contempt must be accomplished by sheriff’s service in New Hampshire, or by any person authorized to make service if done outside of New Hampshire. Notice to other parties of the original action may be by regular US Mail.
In addition, depending on the severity of the contempt, the judge can order monetary sanctions or even a person to jail. Attachments or arrests and incarceration for civil contempt may be ordered by the Court upon a finding of the violation of any Court order, after notice and an opportunity to be heard. Parties may be arrested upon Court order and required to post bonds for appearance and compliance with court orders in any case where it shall be deemed necessary.
March 4, 2013 at 3:39 pm | Divorce, Family Law | No commentWhat is a Revocable Trust and How Does this Estate Planning Instrument Work?
A revocable trust is one type of trust. Trusts present many estate planning opportunities. The key feature of a revocable trust is that it may be revoked or amended at any time. Other trusts cannot be revoked. These are called “irrevocable”. In some States the revocable trust is called a “living trust.” Some of the purposes of a revocable trust are: To avoid probate at death, including more than one probate if you have properties in more than one state and prevent court oversight and control of the disposition of your assets if you become incapacitated. If your assets are held in a revocable trust, they may be more rapidly distributed to your beneficiaries than through the probate process. A properly drafted revocable trust may reduce or eliminate estate taxes. A revocable trust is difficult to contest and can prevent court oversight of minors’ inheritances. In that instance, you choose who oversees the minor’s monies. It can prevent problems that occur with joint ownership of property, and unintended results upon death. A revocable trust is not expensive to set up.
A trust like this works when you transfer your assets from your name to the trust over which you maintain control during your lifetime. Technically the trust owns everything you transfer into it, but YOU maintain control and can do anything you want to do with those assets during your lifetime. If you become incapacitated, the trust and not the court will control you assets. You do not have to have a separate tax ID for a revocable trust.
However, there are times when a revocable trust may not be a good idea. For example, when you need to protect assets for long-term care needs. This is because the assets in a revocable trust are fully countable, and will have to be spent down before you may seek Medicaid benefits.
Author: Attorney John S. Polgrean
March 4, 2013 at 3:20 pm | Estate Planning, Wills & Estates | No commentDoes Medicare Pay for Long Term Care?
One of the more common questions we are asked by our estate planning clients (usually on behalf of an aging parent or loved one) involves long term care expenses and to what degree they are paid for by “Medicare”?
The short answer is: Medicare does not pay for “long term care”.
But the “short answer” requires some elaboration.
First, Medicare will pay for a patient in a nursing facility when that person is receiving rehabilitative therapy. In that case, Medicare will pay fully for the first 20 days. Second, if that person is still receiving therapy treatments, Medicare will pay a portion of the cost for UP TO the next 80 days. Third, after a total of 100 days receiving therapy has elapsed, and assuming the person did not have a valid long term care insurance policy in place, the person must either go on private pay if they wish to remain in the facility or they must qualify for Medicaid.
There are many issues to be considered to determine whether a person is qualified for or can be qualified for Medicaid benefits. Therefore, it is advisable that the family seek the advice of an estate planning attorney who is experienced not only in trusts and estates but in the area of Medicaid planning.
February 20, 2013 at 4:05 am | Elder Law, Question of the Week, Wills & Estates | No commentShould Your Executor Have Control of Your Social Media Accounts?
Digital assets are a relatively new area to consider when determining how to distribute your assets after death. Social media accounts are considered a digital asset, even though often the content posted by the deceased belongs to the provider, not the former user. There is a growing desire by family and friends to turn Facebook pages into memorials for the deceased where people can share their memories. However, if the deceased hasn’t shared his user information and password, there may be no way to access that information. Further, social media companies, such as Facebook, can choose whether to allow or deny someone other than to decedent to access the deceased’s account.
Some states have attempted to pass legislature to allow access to a deceased’s social media accounts, such as Oklahoma, Virginia, Maryland and now New Hampshire. Recently, a bill was introduced to the New Hampshire House of Representatives , HB116. That bill proposed the following:
“The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website, or any e-mail service website.”
The bill has since been tabled. It may appear to be a good idea to allow your executor or an administrator of your estate to access your social media account, but there are many important issues to consider. One major consideration is privacy of the deceased. If the deceased did not share his account information and password, then perhaps he never intended for anyone to access his personal information. During his lifetime, the deceased was able to limit access to the content of his social media pages, and the executor or administrator of his estate may choose to share information with people the deceased never intended to share information with, or to terminate an account that the deceased would have preferred to become a memorial.
It is unknown if the New Hampshire House will further consider this bill or a similar bill. As a result, it is important to contemplate whether you want to share your social media information and passwords with someone you trust and to express your wishes in regard to your digital assets.
February 11, 2013 at 4:42 pm | Cases in the News, Wills & Estates | No commentGuardianship & Conservatorship Question of the Week: Week 2
“I need information about the process to apply for a Guardianship or a Conservatorship. Can you please provide this information?”
Answer: To initiate a guardianship or conservatorship, an interested party must file a petition to the court. The petition will state the petitioner’s relationship to the prospective ward. The petition also will state facts that show that the proposed ward is incapacitated, and the need for a guardian. The petition should detail the ward’s property and assets. The judge will examine the petition and hold a hearing that the proposed ward must attend. After the hearing, the judge will decide if the proposed ward needs a guardian, conservator or both. Wards have the right to appeal a guardianship or conservatorship determination.
Once appointed, a guardian or conservator must be discharged by the judge to end the guardianship or conservatorship. Reasons for discharge include the death of the ward or conservatee, the ward’s return to capacity or the guardian or conservator’s inability to fulfill his or her duties.
Attorney John S. Polgrean practices in the areas of estate planning/probate and business law, and can be reached at jpolgrean@lawyersnh.com or (603) 883-0797
January 30, 2013 at 4:18 pm | Guardianship & Conservatorship, Question of the Week | No comment