The Collaborative Divorce process provides some obvious benefits to those of us who practice family law. Operating outside the court system, we can set our own hours for meetings. So for practitioners who have young children, or who want to work part-time as they near retirement, this flexibility can be a life-saver. Successful and even satisfying resolution of most Collaborative clients’ divorces, usually within less than six months, even with complicated cases, means an increase in referrals by happy “customers.” Also, as awareness grows, and as more clients demand the Collaborative Divorce process, we are ready to answer the call, having been trained in the methods and protocols, and having partaken in the networking and learning opportunities provided by local professional Collaborative Practice Groups.

But what about the benefits of the Collaborative divorce process to other members of the New Hampshire bench and Bar? Can a referral to a Collaborative divorce practitioner or to the website at www.CollaborativeLawNH.org bring positive effects to professionals who do not represent divorcing clients directly? What about strictly transactional practitioners such as estate and taxation attorneys, or business attorneys, and what about those of you who are part of the judiciary?

Business and transaction attorneys know all too well how a protracted and high-conflict divorce can hurt clients. Business owner-clients become distracted and less productive. The books and records of privately-held enterprises are subject to public scrutiny, to the dismay of owners. Competing business appraisers need to be hired, which can greatly diminish the parties’ marital savings. All of these financial and emotional costs can pull billable hours away from the business attorney until the client’s divorce is complete – often a full year and a half after the divorce process begins.

By referring clients to the Collaborative Divorce process, the business and transaction lawyer helps clients avoid the problems of decreased productivity, unwanted public disclosure, and the high costs of dueling experts. The Collaborative process allows clients to achieve a focused, efficient divorce, where 100 percent of the available resources are devoted to settlement, where one financial neutral is hired by the parties, and where all business information remains private.

Non-litigation attorneys who help clients with estate and tax planning see the often devastating effect on the family unit when couples and their divorce lawyers view their break up as a war to be won, rather than a problem to be solved. The Collaborative process helps divorcing clients settle their issues with respectful communication, through the assistance of a neutral divorce coach/facilitator who has also been trained in the Collaborative process. The estate planner who refers clients to, and whose clients choose a Collaborative Divorce, will in the vast number of cases have clients who perceive themselves as part of a restructured family, rather than the victims of a war, filled with allies and enemies.

On a daily basis, marital masters, judges and court personnel experience the harm caused by a clogged and underfunded judiciary. Once in the court system, it is highly unusual for a case to resolve within less than 18 months. Parties often must wait four months before their temporary issues can be resolved. Contested cases often result in a higher rate of post-divorce litigation so the case may continue to drain the system for years. With the Collaborative divorce, once both parties retain counsel a meeting is scheduled, at the parties’ convenience, to address and resolve any immediate issues. By spreading the word about Collaborative Divorce court personnel can help citizens to resolve their family disputes without ever stepping into a courtroom all while helping to relieve the court backlog.

So, what does the Collaborative Divorce look like? For referring attorneys and court personnel, it is important to be able to explain the process to the end user, the divorcing client. At its most basic, the process is as follows.

At the outset, the parties agree that they will sit down with counsel and act in a responsible and respectful fashion toward each other. With Collaboratively-trained attorneys even high conflict cases can be managed once the table is set. The parties need to agree that there will be full disclosure of all assets and liabilities — without the need for formal discovery (and the costs connected therewith). The lawyers agree not to use the court to resolve the issues of the divorce. In fact, if the parties cannot settle their issues, they must obtain new litigation counsel, but this occurrence is relatively infrequent because the parties have invested both time and money in the Collaborative process.

A Collaboratively-trained mental health practitioner is usually hired by the parties and serves as a neutral divorce coach. Their role is to address the emotional underpinnings, work with the parties to address the “he said – she said” aspects of the case and to help the parties efficiently focus on the future, rather than on the past. It is not therapy, but is useful for parties who can’t communicate “on the same page at the same time.” Addressing the emotional challenges and ensuring that each party’s concerns are fully heard goes a long way toward achieving a settlement. The cost for the divorce coach is generally less than having two attorneys go back and forth trying to address emotional issues which are often not fully appreciated due to our lack of psychology education.

Since divorce involves financial challenges and planning for the future, there is little doubt that a New Hampshire Financial Affidavit falls significantly short in helping the parties plan for the future. It merely reflects today’s assets and liabilities, not how food will be put on the table a year from now or the mortgage paid. For this, we usually bring in a financial professional who is also trained in the Collaborative process. This individual, who is neutral, avoids the need for separate experts and works with both parties to maximize their financial resources as a restructured family or even as just ex-spouses without children. The goal is to make the most out of what is available so that both parties are as comfortable as practical after the divorce, taking into account their needs, and when appropriate, the needs of their children.

This entire process is completed before anything is filed with the court. The timeframe is totally controlled by the parties. They move as fast as their emotional needs dictate and take a “time out” when desired. There is no pressure to make snap decisions since there is no court hearing scheduled. It allows the parties to remain in control of the process and to preserve their dignity by putting little on the court record. The Final Decree and supporting documents are filed with the court through the mail. The parties never set foot in the courthouse.

Even the mere possibility of litigation that is present in all other forms of family dispute resolution, including mediation, can cause clients to remain positional and strategic, rather than cooperative and interest-based in their negotiations. A commitment to the Collaborative process frees clients from the threat of litigation and allows them to communicate their real concerns, so that resolution is more likely to occur. If one party feels “entitled”, the other often shuts down and will not compromise. Yet, if the same party expresses a fear of being indigent in the future, a dialogue can occur, with solutions offered by both.

Often, even with the divorce coach and the financial planner, the cost is far less than following the traditional litigation model. Best of all, clients leave the process more satisfied because they have made the decisions as to their future. Judges do a great job, but the court system is clogged and they only hear the filtered version presented by two skilled lawyers who are trained to push for the best for their individual client. No, not every case is suitable for Collaborative practice, but those that aren’t are the minority and are a much smaller group than you might think.

The benefits to clients in stress reduction, schedule management, durability of the agreements, and financial savings are real.

The benefits to family law practitioners in work-life balance, flexibility, client satisfaction and referrals are obvious.

The financial benefits to business and estate planning attorneys, whose clients are facing divorce, may not have been obvious to those of you who practice in those areas, but are real nonetheless.

And for the over-burdened judiciary, any easing of their caseloads should be welcomed.

Perhaps it’s time for you, fellow attorneys and members of the judiciary, to consider referring parties to the Collaborative divorce process. Or, if you are a family-law practitioner, consider obtaining the training to become a Collaborative divorce professional yourself!

Lisa Forberg

Bruce Dorner

Lisa Forberg practices family law with the Law Office of Amy G. Wolfson in Nashua and is on the Board of Directors of the Collaborative Law Alliance of New Hampshire and a member of the International Academy of Collaborative Professionals; Bruce Dorner practices in Londonderry and is trained in both divorce and business Collaborative process and is on the Board of Directors of the Collaborative Law Alliance of New Hampshire.

I’m one of the old guard. I was in the first wave of attorneys trained to serve under Superior Court Rule 170, which became effective Jan. 1, 1987, and was most recently amended in 2003. Maybe my gray hair gives me a little perspective, or maybe my gray hair clouds my memory. I write from a personal perspective, having served in four different venues of the Superior Court since the program started. Within this article, the term “mediator” encompasses all the aspects of a “neutral” under Rule 170.

It has been a privilege to serve the Court in this capacity. As with any volunteer effort, there are differences among those who provide the service, those who schedule the service, and those who use the service. My intent is not to diminish the great work done by all involved in the process but to strengthen the process by increasing sensitivity toward the burdens imposed on the volunteer mediators.

To the attorneys who utilize our services:

Remember that we are volunteers. We forego paying clients to serve the needs of our fellow attorneys and their clients. Do not abuse us by submitting mediation statements three days before the session. Submit them at least 10 days before the session. Please mail them. It’s not good manners to send a fax with 52 pages of attachments and exhibits.

Don’t require us to call the court to chase down your summary. Be sure to include substance in your summary. Don’t send the mediator your case structuring summary with a different caption. The mediation summary should reflect the current status of interaction with the other parties. Also, reciting the text of the pleadings does nothing to help us understand the differences between the parties.

If you are going to settle your case in advance of mediation, please notify the mediator. We don’t want to prepare for a case that is resolved or will be continued.

If your case is not ready for mediation, please notify the court well in advance of the scheduled date. Mediators need to prepare for the session by reviewing the initial pleadings, summaries of the parties, and often need to do some research. If you are going to request a continuance, don’t forget to notify the mediator.

Mediation is a serious process. Treat it with the same respect that you treat a bench trial. Be ready. Be prepared. Please arrive on time. Prepare your client adequately. Let them know that the process is not like anything they have seen on television. It’s not a courtroom and there is no testimony.

Don’t over schedule and tell the mediator that you have a “short motion” to argue and will be right back. We’ve all been there and know that a packed court schedule can turn a short motion into a two-hour wait in the blink of they eye. The mediator has cases waiting. Starting 30 minutes late impacts the rest of those waiting.

Have appropriate settlement authorization. Don’t come to the table with $5,000 “nuisance value” authority when you know that the case is worth far more than that sum. Avoid putting us in a position where we have to spot you the proverbial dime to go make a phone call to a distant adjuster or supervisor. Mediation is not a surprise process. You should already know the position of the opposing attorney and the magnitude of the dispute.

Please don’t come to the mediation and tell the mediator that the defendant’s counsel hasn’t had a chance to depose the plaintiff, and is not in a position to know how to value the case. In the same vein, if you represent the plaintiff, don’t come to the mediation stating that you really can’t settle the case because the plaintiff isn’t at a medical end result, or that you haven’t had a chance to nail down a critical witness or expert opinion. Mediation is not the place for a little free discovery. If you’re not ready, be honest. File your motion to continue and propose a new date when all parties will be ready.

If you have a complex or difficult case, be sure to ask for a half or full-day time slot for your case. You are not limited to only two hours to mediate your case. You will not get extra time unless you make the request.

If you have a unique situation or a difficult client, ask for a private session at the earliest opportunity to share your concerns with the mediator. The only way we know what is on your mind and can help you to deal with any special circumstances is if you share the information.

Mediation is not a trial. Be brief. Be concise. There is no need for theatrics or puffery. A good mediator has read the summaries, noted the differences, and reviewed the pleadings.

If you had a good experience with a particular mediator, feel free to ask the court for a special assignment on your next case. It may not be practical in all situations, but you may ask.

Show your appreciation. Mediators are people too. Say “thank you” for helping to move your case forward. If the case resolves after the mediation, please tell the mediator. Maybe a friendly phone call or note of appreciation is appropriate after the case resolves. Send a copy to the Clerk of Court so they get feedback as to how well the mediator did in handling your case.

To the Clerks of Court:

Remember that we are volunteers. Treat us as you would treat a visiting judge. Don’t simply pass a pile of case folders across the counter and holler out a courtroom number or conference room location. A cup of coffee goes a long way. A parking space at some courthouses goes even further.

Make sure the mediator has sufficient space for a private caucus and the assistance of a bailiff or other court officer. If you know that there are several parties, counsel, adjusters and other camp followers listed on the case, please provide adequate space and chairs for everyone. Know your mediators. Try to accommodate the style of the mediator as you would the style and requests of a visiting judge. And, if we ask for too much, let us know when we overstep our bounds.

Visit the mediation session on occasion to say thanks to the mediator. Watch part of the session if the parties are agreeable. Let the attorneys, parties and mediator know that the Court considers this a very important process. Remember that the attorneys and adjusters do this for a living. The plaintiff and many defendants have never been to court, let alone to a mediation session. They are impressed when a clerk or deputy clerk simply stops in to say hello and shake hands. It spreads goodwill and enhances the image of the court system.

Don’t schedule a mediator for more cases than can be effectively handled in a day. Remember, we have to prepare and review case summaries. Two hours may not be adequate for a four-party case with cross complaints and the like. If the court file is three inches thick, it’s probably a case that needs more time and attention in mediation. In a complex case I have spent in excess of eight hours in review and preparation, only to have the session canceled a day before the mediation. The time commitment to be an effective mediator is significant. Do not abuse mediators by depriving them of otherwise billable hours.

To the Judges:

Effective mediators reduce the load on your calendar and free you up to handle more difficult and complex matters. When you know a mediator is at the court house, stop by, say hello and thanks. It’s nice to know that the judicial side of the equation considers our contribution beneficial to court.

When meeting with the attorneys in the structuring conference, make inquiry as to whether the case needs more than a two-hour assignment before a mediator. Let the attorneys know that if the case expands after the initial assignment is made and they need more time, they should immediately notify the clerk’s office or file an appropriate motion.

When motions to continue a mediation session are filed on short notice, consider whether sanctions are appropriate for abusing the process. If we spent hours preparing for a case and it is continued the day before the session, it diminishes our desire to continue serving the court.

Sometimes the mediators are perplexed about how to deal with a particular situation. Having a judge available for a quick consultation or reality check is invaluable. Mediators don’t have the “back room” experience of a Superior Court judge and would benefit from the knowledge which can be shared (within the confines of Rule 170 and ethical considerations).

To the Mediators:

When you sign up to serve on a particular date, keep it open on your calendar. If you have a conflict, notify the Court promptly.

If you don’t get all the mediation summaries at least 10 days before the scheduled session, call the ADR clerk and ask for assistance. It’s not our role to start calling each attorney in the case and possibly taint our role as a neutral.

If you receive summaries that are late or incomplete, consider whether further contact with the clerk’s office is warranted. In some cases you may feel the need for judicial intervention.

Take the time to carefully read the summaries and understand not only any offers or demands, but the issues, concerns, and positions of each party. Remember, there are real people who don’t have the foggiest idea of the complexities of the legal system. It’s our role to ensure a level playing field so that the parties can conduct the mediation in an open and frank fashion with the intent of allowing them to settle the matter. Mediators don’t determine the outcome. We merely provide the mechanism for the parties to achieve the result.

If the case doesn’t settle at the table, be sure to leave the door open for further discussion by the parties. Don’t consider mediation as failed just because a stipulation isn’t signed at the session. Many difficult cases simply require a little time, and then a settlement can be achieved.

Thanks for hanging in there all these years. Those of us who have served, and continue to serve, know that it improves our skills in representing clients and presenting our cases.

Bruce L. Dorner is an attorney and principal of the Dorner Law Office in Londonderry; he also serves as a mediator.

As frugal Yankees we save money by clipping coupons, buying items when they are on sale, and recycling as much as practical. When it comes to legal matters, no one likes to pay a lawyer more than is necessary to solve the problem. Sometimes, clients don’t share all the facts and background, so as a lawyer, I’m often challenged to find the missing pieces to the puzzle.

Permit me to share some interesting legal maneuvers performed by clients (not all of them mine). Some of these tricks resulted in severe legal wounds to the wallet and some are just amusing.

Consider the dedicated husband who worked in the computer industry and knew that he was learned and wise in the ways of wills and estate planning. He bought an inexpensive program for his computer and ran through the questions to prepare his own will. The result wasn’t bad, but he didn’t realize that having his wife serve as a witness to his signature made the will invalid. Ooops! He also forgot that his wife needed a separate will too!

How about the client who studied his insurance needs carefully and purchased enough insurance to protect his wife and two young children. He wanted his wife to get the money when he died. If his wife didn’t survive him, the money would go to his kids. However, he named all three as beneficiaries. Guess what, his widow got one-third of the money and the rest is now tied up until the minor children reach the age of majority. She can’t use the kids’ portion and now struggles to make ends meet.

I’ve encountered other home-brew estate planning tricks. One estate started with the husband showing me his late wife’s will. It had a provision cutting the husband out of the estate. Well, in New Hampshire, a husband or wife has a right to claim a portion of the deceased spouse’s estate. Even more interesting was that his wife’s daughter had already contacted an attorney to help probate the estate. The attorney was a long term friend of mine and I called her to discuss the situation. I told her I had the original will and would deliver it to her. She paused, gasped and said, “no, Bruce, I have the original will.” Both of us became even more concerned as we realized that there was more than one original of the will. There should be extra copies of wills, but not duplicate signed original documents. It took several months to sort out the mess in probate court to achieve the desired result. Fortunately, both the stepdaughter and husband agreed on distribution.

It’s also interesting as to how many people fill out the forms to create their own Limited Liability Company (LLC) or create a corporation. However, rarely do they have an LLC operating agreement or actually issue shares of stock in the corporation or membership interests in the LLC. In the event of a law suit against the business, it folds like a house of cards. These annoying but formal steps are necessary to protect the integrity of the business entity. After all, you want to protect your personal assets, not increase your liability exposure.

One of my pet peeves is the proliferation of so-called living trusts. You put all your assets into the trust so you don’t have anything to go through probate court when you die. The concept is nice, but the implementation is difficult. I’ve had a number of clients who want to avoid probate, but can’t explain why they think this is important. I see even more estates that have some property owned by the trust, while other assets are still held in their personal name, outside the trust. Unfortunately, if all of the assets are not properly titled to the trust, you still have to go through the probate court. You paid a great deal of money to create the trust, but never fully funded it. The brass ring remains just a few inches outside your grasp. Living trusts are not for everyone.

In the same vein is the use of joint accounts. Grandma loves her little grand daughter and leaves her $10,000 in her will. Grandma is worried where the money will come from to fund the gift so she puts the grand daughter’s name on a Certificate of Deposit worth about $50,000.00, as a joint tenant. Guess what, the little tyke gets $60,000. $10,000 from the will, and all of the Certificate of Deposit. Be careful, joint tenancy is a powerful tool — if used properly. Generally, assets held jointly are not subject to control of the probate court.

So, if you’ve enjoyed hearing some of these war stories, maybe you’ll have a soft spot in your heart for your family lawyer. After all, we’re trying to protect you from these types of errors and prevent you from shooting yourself in the foot.

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

I can’t count the number of clients who ask me to prepare estate planning documents for them. Just about every consultation starts with the client stating, “all I need is a simple will.” I really wish that at least one client would come to my office and ask for a complex will!

The reality is that there is no such thing as a simple will. All wills are simple if they meet your needs and the needs of your family. Some wills are longer than others and some contain more detail as a result of unique family structures or the need for tax planning. The key to good wills and estate planning is to find the right language to accomplish your goals, protect your family and assets, and reduce stress after your death.

The first question is, “do I need a will.” For most people the answer is yes. Here’s a great example of how important a will is to your family security. Harry and Sally have been married for ten years. They have two lovely children age eight and six. Harry works for a company with good benefits and has a growing retirement plan. He forgot to list a beneficiary on his insurance policy. He owned the house in Londonderry before they got marries. All the cars are in his name, along with the boat and a timeshare interest in a vacation cottage. Harry died unexpectedly and left assets that were not held jointly with his wife totaling about $600,000.

Guess what! New Hampshire law provides that if you die without a will and leave a spouse and children of that marriage, the surviving spouse gets the first $250,000.00 and one-half of the balance of the remaining estate. In our example Sally would receive $450,000 and the children would receive the remaining $150,000. The real problem is that the children’s share is now held in trust for their needs and Mom can’t get to that money without permission of the Probate Court. Additionally, that money will be held aside and invested until each child reaches their 18th birthday. Gee, do you really want your 18-year-old child coming into a large sum of money? I can’t think of an 18-year-old who wouldn’t want a fancy sports car!

With a will, Harry and Sally could have avoided the problem by including language that gives all assets to my surviving spouse. Now, Mom is in control of all of the money and doesn’t have to answer to the Probate Court regarding the use of money for her children. On the other hand, and moving into a more detailed provision, maybe Sally can’t manage money and Harry needs to have a portion of his estate held aside for the children. This can be accomplished with designation of a trustee and instructions on how to hold, invest and distribute the funds segregated for the children.

I don’t want to get too involved in tax planning issues as Congress has recently enacted new laws which have significantly impacted traditional planning tools. Suffice it to say that planning for the financial security of the family has become more complex and the need for legal advice and financial planning service has increased. Each family needs to know where they fit in the financial hierarchy so the tax burdens can be reduced. Planning is essential to this goal.

As family structures change, the need for careful estate planning grows. It is quite common to have blended families with “his, hers, and our” children. Often there are issues arising from divorces that require insurance or college funding for children of prior marriages. These factors need to be considered. Also common in the planning scheme is the potential for inheritance from parents and how this might increase your assets to a point where Federal tax becomes a consideration.

Another important component of the planning process, but not part of the will, is a review of financial stability. In our example, if Harry dies, will Sally have sufficient cash flow to make the payments on the house and other tangibles? Will she have enough money to pay all the bills? Harry brought the lion’s share of income to the table, but his passing does not decrease the regular monthly expenses by any significant amount. Is there adequate life insurance to provide for family needs for a reasonable period of time?

It is also important if you already have a will to review it on a periodic basis. I’ve had a number of clients who were too busy to add the name of their last born child to the will. Emotions peek at the passing of a parent and not having that child’s name in the will was a great psychological injury to that child. Of course the wills prepared in our office provide for children who may not be named, but the emotional impact is still there. The lesson to be learned is that wills need to be reviewed on an annual basis to be sure that all the pieces still fit. I urge my clients to read the will from top to bottom and then ask themselves one question, “does this still make good sense today?” If the answer is in the affirmative, then there is likely to be no need for change. If there is any question, then clearly a call to your attorney is in order.

This is only a brief over view of the topic. Estate planning can be rather complex as your assets and family structure change. I have not addressed the use of trusts in estate planning or the technique of segregating assets between husband and wife. In another column I’ll talk about additional documents needed in a basic estate plan including a durable power of attorney, a health care power of attorney, a health care directive or living will, and other items that may be needed to adequately protect your family.

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

What will it cost for…..

In my last column I outlined some of the basic issues relating to wills and estate planning. I received a number of calls about that article and several readers contacted me to either create or revise their wills (thank you very much.)

From these calls I learned that the frugal Yankee spirit is alive and well in Londonderry. Most of those who phoned started with, “how much will it cost for a will?” Well, the answer to that question, in good lawyer-like fashion is, “it depends.” Permit me to clarify.

The cost for legal services, whether it is for wills or any other matter is dependent upon several factors. Often, attorneys charge for their time on an hourly rate. Sometimes the fee is based on a blend of an hourly rate and cost per page for revision to documents the attorney may have used in the past for other clients. The lawyer needs to modify the documents, but not completely rewrite them.

Occasionally, an attorney will agree to a fixed fee for a particular project where the task is well defined and no surprises or curve balls are expected. Another alternative is a contingency fee case in which the attorney receives a percentage of the recovery. This is common mostly in tort cases (traffic accidents, etc.) where insurance is available to pay the claim. In any event, the point to note is that you should have an open and frank discussion with your attorney about the charges you should expect and what events might impact the cost as the matter progresses. It is always best, if the project will take some time, to get the agreement in writing so both the attorney and the client are comfortable with the charges and billing arrangements.

Now, returning to the original question of what will it cost for a will, let’s examine the matter. First, a will is only one document in the estate planning toolbox. Most families (husband and wife) need individual wills. Second, they often need individual powers of attorney and these documents may require additional letters of instruction as to how and when they may be used. Third, many families benefit from a health care directive (living will), which deals with the issue of the end stage of a terminal illness where the patient is kept alive by artificial means (brain dead, etc.). Fourth, we often prepare a health care power of attorney to designate someone to make decisions in the event the principal is temporarily unable to make health care decisions for himself or herself. Fifth, some families benefit from a form to nominate a guardian in the event the principal becomes incapacitated. Sixth, if the estate is large, or if there are family complications we often need to explore the use of trusts or other legal devices to segregate assets for a particular purpose or family member.

Having said all of that, and noting that we’re probably talking about several hours of legal time to meet with the clients, respond to their questions, hold a second meeting (or more) to review all the documents, is it any wonder that we’re talking about a fee in the range of $900 for a basic estate planning package? Gee, most people I know pay more than that for a single year of car insurance and never have an accident. Is $900 (or more) worth spending to protect your family, children and assets? For most people wills and estate plans need to be reviewed every few years. After more than 30 years of helping families with basic estate planning I’d estimate that the average Londonderry family needs to revise wills about every 5-10 years.

Being a frugal Yankee (myself included) is clearly necessary in running a household. Being foolish by not having appropriate legal services is as dangerous as driving without car insurance or failing to have medial insurance. Remember, you hire an attorney to help you write a plan that will assist your family to deal with your death and to provide for their financial welfare and stability. I have several families that I am assisting who did not have wills and supporting documents in place when a loved one died. The cost to correct those errors are far above the cost of a basic plan. Writing a will and preparing a basic estate plan is just like having a fire extinguisher on the wall. You may never need it, but when you do, it better work well!

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

My Warranty Deed is my shield and protector!

“Of course the title to my house is good. I have a Warranty Deed!” Oh, if only that were true. A Warranty Deed in New Hampshire is an affirmative statement by the seller of real estate that, in essence says, “I own it lawfully, that there are no encumbrances except as stated, that I have the right to sell it, and that I, my heirs, executors and administrators shall warrant and defend the title for the buyer and his heirs, successors and assigns.”

Well, isn’t that good enough? In good lawyer parlance, maybe! The issue of a title defect or problem often doesn’t arise for many years after the house is purchased. Most often it arises when you go to sell the house and the new buyer has an attorney or title company check the records at the county registry of deeds to verify the accuracy of the documents leading up to your purchase of the house.

Let’s assume that you’re ready to sell your house and you’ve listed it with a broker, got it all spiffed up, and have the nice magazines and fresh flowers on the table to impress prospective buyers. The diligent broker brings you a contract from a buyer at your asking price and you’re thrilled. The document is signed and the administrative machinery takes over at the buyer’s bank. They ask their attorney to check the title to your house. Two weeks later your broker calls to tell you that there’s a problem. In 1982 the neighborhood where your house sits was subdivided. The deed at that time made reference to rights for the seller of the subdivision and his heirs to draw water from a well on the land. Where’s the well? No one recorded a map showing the location of the well? Is the well on your lot or on one of your neighbors? Does the well still exist? Is the original seller of the subdivision still around? Is he dead? Who are his heirs? And, the one that most home owners state, “who cares if no one has gone looking for the well in more than 30 years!”

This is only one example of the type of problem encountered when examining titles. Occasionally we find that a driveway is on a portion of your neighbor’s land. Maybe a former owner granted an easement for your neighbor to have a garden on that back land which was of no import “way back when.” Maybe there’s an old path or logging road that was used at the turn of the century to get to the “back land.”

These types of items are regularly noted in your deed. However, are they adequately described? Did you REALLY read them, discuss them with your attorney, and get a comfortable understanding of what they mean? Oh, you didn’t hire your own attorney for the purchase of your home! You relied on the bank attorney to do it all for you. I’ll bet you forgot about the document the bank attorney had you sign that said he was representing the bank, not you, and that you may want to hire your own attorney.

There’s no way we can create a perfect world. Real estate title problems will continue to exist as the population increases. You can take steps to reduce the risk. Hire an attorney to represent you before you sign any contracts. Work with your attorney to guide you through the purchase or sale of your home. Ask questions. Purchase an owner’s policy of title insurance. It is regularly offered at the closing and will provide an added layer of protection from many types of claims. Remember that the bank had you pay for title insurance to protect their interest. Why don’t you do the same for your most expensive investment?

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

The voice on the other end of the phone says, “I’m not sure my lawyer is doing a good job on my case, what should I do?” This question is one of the most difficult for an attorney to answer.

After getting some basic information from the voice on the phone, I determine that there is no conflict if I offer advice. The starting point is to determine why the caller feels that the relationship is failing. I inquire, “what did your lawyer do, or not do, that has you concerned?” The most common complaint is that, “my lawyer doesn’t return my calls.” In these situations I urge that the client call the lawyer and ask for a meeting to share these feelings in the hope that the relationship can be restored. Ask your lawyer what is the office policy for returning calls. Sometimes an attorney sets aside a particular time of day to return calls. If the lawyer is too busy to return your calls or to have a sit-down meeting, then it may be time to determine if this lawyer is too busy to handle your case.

Another question raised is that, “I don’t know what’s happening with my case.” A good lawyer sends the client a copy of every document that comes or goes from the office. How else can a client know that you’re working on the matter? If you’re not getting this information, ask the lawyer to send you copies.

A more thorny question is that, “my lawyer doesn’t listen to me.” Sometimes the client wants the lawyer to be a therapist. Although we try to be supportive, our role is not that of a trained therapist. Many legal matters have significant emotional components. It is important for the client to understand the role of the lawyer in the process and for the lawyer to refer the client to counseling, where appropriate. If the lawyer really isn’t listening, and you’ve had a face-to-face meeting, it may be time to consider if it is better to move your case to a more supportive office.

At the same time, a good lawyer does not mean the nastiest courtroom advocate or the one who helped your brother-in-law with his divorce. A good lawyer is not someone with gray hair and the three-piece suit. A good lawyer is one who listens to your problem, provides options and alternatives, and helps you solve the legal puzzle.

When you visit your lawyer’s office, are you greeted promptly? Do you feel welcomed or are you just one more person in the line at the counter? If you don’t feel comfortable, you should share your concerns with your lawyer. Did the attorney identify anyone else to contact at the office if he is not available?

Are bills and letters from your attorney clear and concise? If not, ask questions. Again, if you don’t have a comfortable feeling in dealing with your attorney, you may not have confidence in his or her ability to achieve a good resolution to your case.

Above all, are you comfortable? The relationship between an attorney and his client is a very close personal relationship. You need to feel confident that the lawyer will be able to respond to your needs both in a technical legal sense and in a communication mode that you find appropriate. Is the lawyer talking with you — or to you? From my vantage point it is more important that the attorney regularly handles your type of case than his or her academic credentials.

Remember that it’s your case. You’ve entrusted your attorney with a matter that requires special skills. If you don’t feel supported, you’ll be more worried than is necessary. In the end, the key to defining a “good” attorney is nothing more that finding one who is capable of dealing with your legal problems in the manner you find most appropriate. To some extent, it’s an extension of the Golden Rule — do unto others as you would have them do unto you!

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

The law is ever changing. In 2004 the New Hampshire legislature passed many new laws. Most of them will have little impact on most of us. Some will have major impact, and the majority will be somewhere in the middle. Permit me to explore a few of the new changes that arose during the past session of the legislature.

The Court no longer has the power to order divorced parents to pay for the college education of their adult children. Prior to this revision to RSA 458:17, it was common for the parties to have a hearing to determine what would be a fair and equitable contribution for each parent to make toward college funding. As one would expect, neither parent usually felt comfortable with the amount of money the Court would order paid to the college. The larger question will be how college financial aid packages will be computed if one parent refuses to cooperate with providing data or declines to contribute to college expenses.

Another change in family law was established to modify the standard by which child custody may be changed. It is common for a joint custody arrangement to become more difficult as the children get older and develop their own set of friends and activities. Sometimes parents have disagreements about the terms of the custody order and ask the court to make changes. Now, under the new law, if the parties have joint legal custody and agree to a change, the Court need only determine that the change is in “the best interest of the children.” If the parties are not in agreement, the old law imposed a very harsh standard which required that the moving party had to convince the judge that the children would be harmed if they continued to live under the current plan. The new law is more flexible. It requires the moving party to convince the judge that the “child’s present environment is detrimental to the child’s physical, mental, or emotional health and that the advantage to the child of modifying a permanent custody order outweighs the harm likely to be caused by the change in environment.”

We also have a new law, RSA 644:18, which imposes criminal penalties for holding an underage drug or alcohol party. Watch out! This law says that if you know your kids are having a party at your house and drugs, beer or other alcohol will be consumed, you, the parent, may end up with a criminal record. You can’t escape responsibility by saying that the kids were not going to drive or they were being supervised. If any at the party are less than 21, you’re in trouble! Also, if your high school senior is 18, he or she can also be charged under this criminal statute if five or more friends stop by the house for a quick beer.

On the alcohol and drug front, the legislature also increased the penalty for driving under the influence of alcohol or drugs when you have a person less than 16 in the car (or boat). The new law classifies this offense as aggravated driving while intoxicated. Bottom line, longer loss of license, much greater fine, and a criminal record!

With so many condominiums in Londonderry, we’ve also seen a change in law in that category. Certain disclosures must be made by the seller to the purchaser during the process. The seller must deliver a written notice to the buyer that the buyer has a right to obtain from the condominium association information such as a copy of the declaration, by-laws, any formal rules or regulations, a statement of the monthly and annual fees, and details of any special assessments within the past three years. The buyer needs to sign a copy of the notice. I’m not sure what penalty will be imposed for failure to comply, but it’s easy to avoid the question. I’m sure my friends in the real estate business will be following this condominium notice requirement carefully.

These are just a few examples of what happened in a busy legislative season. Some of these laws don’t go into effect until January. Others are in place now. These short summaries are not comprehensive and are just the tip of the iceberg.

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

“I’m starting a business but don’t want to do any legal stuff as I don’t think I can afford it.” This is a very common and real concern for most people who want to venture forth into the Great American Dream — own your own business!

Unfortunately, almost half of all businesses started fail within the first year or two. Why such a high number — because they fail to plan. Most people believe that they have a great idea and hard work is the route to success. After all, what could go wrong with my idea? Well, how about considering the plan for your business. What market will you serve? Who will be your customers? What will it cost to get set up and running? Will you be able to afford payroll for employees? Who will finance your start-up expenses? What form of a business entity will you use? The questions are numerous and the answers all rely upon the great legal expression, “that depends.”

First, develop a business plan. Get it in writing and detail exactly what your business will do and how it will deliver the service or product. Work up a realistic budget for start-up costs and for ongoing expenses. Be sure to include costs for legal services, accounting, and insurance. Don’t try to do it yourself. Remember that you are a business person, not a lawyer, not an accountant and not an insurance advisor. Do what you do best and pay others to assist. Build a team around you to advise you and to help the business grow.

If you need financial backing, decide if you have the family resources to fund the operation. If not, will you borrow from friends or relatives or seek support from a bank. If you need to go to a bank, it is best to have an attorney and accountant working with you to develop the business plan and to assure the banker that you are committed to making this plan work since you’ve hired these advisors to assist you.

From a lawyer’s perspective the big decision is often what type of business entity to use. The simple sole proprietor is often the starting point for a one person business. The benefit of this business form is the need for little legal paperwork, aside from a trade name registration with the State and a tax identification number (unless you want to use your own social security number). On the downside, if your business fails or if law suits against you arise, then all of your assets are on the table for claims made by creditors. In essence, you are the business.

If more than one person is involved in owning and operating the business, we often form a partnership. Although there are variations on the theme, a partnership still leaves gaps in protection for your personal assets, and you may be held liable for errors committed by your partner — even if it was a dumb decision.

For the above reasons, we often form a corporation or a limited liability company. A corporation is much like giving birth to a child. It has its own name, its own tax identification number, and is responsible for its own errors. The corporation acts through its officers and directors. Even though you, the business owner, may be the President, the corporation does provide some protection for your personal assets. However, much like a child, failure to supervise the corporation (child) may expose you to a personal claim. Corporations require specific legal documents and must conduct business in accordance with state law. Don’t let anyone tell you that filing an annual report is all you have to do to maintain the integrity of the corporation. Lawyers have many tools to do what is called “piercing the corporate veil” for the purpose of getting at your personal assets.

The new, and often favored limited liability company (LLC), is used today to reduce some of the need for corporate formality and to provide some reasonable liability protection. Instead of officers and directors, as in the corporation, the LLC uses members and managers to conduct its business. The structure may be less formal than a corporation, but a detailed agreement of the members is still required, as are registrations with the State of New Hampshire.

What form of business is best for you? Again, let’s go back to the top and simply say, “it depends.” You need to meet with a lawyer and accountant to determine what will be best in the long haul as there are often different views as to the best tax and liability protection for your particular business. Making a mistake at the start of your business career may have far reaching impact when you try to sell your growing enterprise. Be sure to plan accordingly. Who knows, maybe you’ll be the next Bill Gates!

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.

“The landlord gave me a standard lease, is there any reason for you to look at it?” Oh, how I wish there was such a creature as a standard lease! In reality, nothing is standard when it comes to real estate leases. Inserting a caption at the top of the document calling it a “Standard Lease” does not create such a creature.

Leases are like children. There are many similarities, but there are also many differences. Recall the day when you came home from school with a less than stellar report card and your parents commented that you should have done better? You responded that “ALL the kids did badly and mine isn’t that bad.” Then followed the retort from your parents, “we don’t care about the other kids, we only care about YOU!”

Your lease is your “report card.” I only care about YOUR lease.

On the similarity side, all leases have certain basic ingredients. They designate the parties so we can clearly identify the landlord and the tenant or tenants. They describe the place to be leased, and as always, the amount of rent to be paid. Most leases provide for a term, anywhere from one month, to a year or longer. Often there is a provision describing what the tenant can and cannot do in the rental property. After those basics, the lease is limited only by the creativity of the parties and their attorneys.

We usually separate leases into two broad categories. The first is a residential lease for an apartment, condominium, or home to be occupied by a single family. The second category is a commercial lease for operation of a business. Careful drafting of the terms in any lease can create a good relationship between the parties, or it can create a disaster.

Leases often include a provision as to what happens when the rent payment is late. Sometimes there is a penalty which can be quite expensive. Sometimes there is a right for the landlord to evict with force (i.e., kick the door down.) Although the right to evict with force may be in the contract, I haven’t seen anyone enforce by that method in all my years of practice. I think that some leases include that provision to put fear into the tenant.

How long does the lease run? Are there rights to extend or renew the lease? How much notice must each side give to the other if they wish to end the lease? Each of these items requires careful study and understanding of the rights of all parties to the contract.

What amount is required for a security deposit? Where will the security deposit be held, and will it earn interest? What happens if the landlord sells the building? Can the landlord kick me out if she wants to make improvements to the property?

Does the lease require the tenant to pay a portion or all of the real estate taxes? Is there a provision for snow removal, trash pick-up, and lawn maintenance? Any one of these items may create a problem in the relationship.

The items mentioned are but a few of the reasons leases sometimes end up in court. No one took the time up front to really work through a “fair and reasonable” arrangement. No one thought they needed an attorney. After all, it’s only a “standard lease.”

This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.