1994 SESSION 3442B
94-2138
04/02
HOUSE BILL
AN ACT permitting termination of marriages by agreement without court approval, and requiring binding arbitration of all marital disputes based upon irreconcilable differences.
SPONSORS: Rep. Harwell, Coos 7
COMMITTEE: Judiciary
ANALYSIS
This act:
I. Enables husbands and wives who are residents of this state for the requisite period of time to terminate their marriages unilaterally or by agreement by the filing of appropriate papers with the bureau of vital records and health statistics, department of health and human services.
II. Provides for the binding arbitration of all marital disputes resulting from such terminations.
III. Removes from the superior courts the jurisdiction to grant divorces on grounds of irreconcilable differences, and confers upon them the jurisdiction to compel arbitration of such disputes, to enforce arbitration, to hear appeals from the awards of arbitrators, and to set aside such awards.
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EXPLANATION: Matter added to current law appears in bold italics.
Matter removed from current law appears in [brackets].
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
3442B
94-2138
04/02
HB 1560-FN
STATE OF NEW HAMPSHIRE
In the year of Our Lord
One Thousand Nine Hundred and Ninety-Four
AN ACT
permitting termination of marriages by agreement without court
approval, and requiring binding arbitration of all marital
disputes based upon irreconcilable differences.
Be it Enacted by the Senate and House of
Representatives in General Court convened:
1 New Subdivision; Termination of Marriages by Mutual Agreement or Unilateral Act. Amend RSA 457 by inserting after section 44 the following new subdivision:
Termination of Marriages
457:45 Termination by Mutual Agreement or Unilateral Act. Any person who was married in this state and who has resided in this state continuously since the date of the marriage; any person who has resided continuously in this state for a period of 2 years while married; and any person who has resided in this state for a continuous period of 4 months, provided the spouse has also resided in this state during the same period, may terminate the marriage by giving a sworn and acknowledged notice of marriage termination to his or her spouse in hand or by return receipt mail on forms prescribed by the bureau of vital records and health statistics, department of health and human services, filing the original of such notice with the bureau of vital records and health statistics, department of health and human services. Such notice shall contain a sworn acknowledgment that no action for divorce has been commenced by either party in this or in any other state or foreign jurisdiction.
457:46 Effective Date of Termination. Notwithstanding any other agreement to the contrary, a notice of termination may be revoked by a subsequent notice of revocation signed and acknowledged under oath by both parties to the marriage, provided that such notice is entered with the bureau of vital records and health statistics, department of health and human services, within one year of the date upon which the notice of termination was entered, and the termination shall not be considered effective until after that date.
457:47 Agreement Must Be In Writing. No agreement to terminate a marriage or to settle disputes arising from the termination of a marriage pursuant to this subdivision shall be enforceable unless such agreement shall be contained in a written document executed under oath by both parties, and unless a properly executed notice of termination has been entered with the bureau of vital records and health statistics, department of health and human services.
457:48 Arbitration. All persons whose marriages are terminated in the manner prescribed by this subdivision shall have a duty to submit to the binding arbitration of all disputes arising out of the termination of the marriage by 3 arbitrators chosen from a panel selected by the chief justice of the superior court, one of whom shall be chosen by the husband, one of whom shall be chosen by the wife, and one of whom shall be chosen by the other 2 arbitrators. If the parties agree, all such disputes shall be arbitrated by one arbitrator of their choice from this panel.
457:49 Costs of Arbitration. All parties who engage in arbitration under this subdivision shall share the costs of such arbitration equally unless otherwise agreed, but shall be jointly and severally liable for such costs unless otherwise stated in the determination. The compensation to which arbitrators shall be entitled in such cases shall be determined according to a fee schedule established by the chief justice of the superior court.
457:50 Actions in Superior Court. All termination agreements and arbitration awards or determinations made under this subdivision shall be binding upon the parties and shall enure to their benefit to the same extent as their lawful terms; shall be subject to enforcement in the
superior court by means of action for debt or other damages, specific performance, injunction, protective or restraining order, or other means within the equitable powers of the superior court; and shall not be set aside or modified by any court except for fraud, willful misrepresentation, duress, illegality, collusion, conflict of interest, abuse of authority or discretion by an arbitrator, concealment of assets, incompetence at the time of the award, or mutual mistake. The superior court shall also take cognizance of all actions to require arbitration, to reform or set aside termination agreements, arbitration awards, or determinations, and all appeals of arbitration decisions, and it shall have exclusive jurisdiction of all such actions or appeals arising under this subdivision.
457:51 Appeals. All appeals of arbitration awards or determinations on grounds of illegality, abuse of authority or discretion, conflict of interest, and duress shall be brought within 30 days of the final award or determination. All other actions under this subdivision shall be brought within one year of the date on which the cause of action arose or was discovered by a party exercising reasonable diligence, whichever is later.
457:52 Child Support Guidelines. All termination and settlement agreements, and all arbitration awards or determinations made under this subdivision shall comply with RSA 458-C, and shall provide for the assignment of child support responsibilities between the parties in accordance with the child support guidelines established pursuant to that chapter and in effect at the time of the agreement, award or determination unless such agreement or award is supported by special circumstances in accordance with RSA 458-C:5 that are in effect as of the time of the agreement or award. It shall be the duty of all parents whose marriages are terminated in accordance with the provisions of this subdivision to negotiate in good faith and to arrive at agreement to terms upon which they will divide and share their joint obligations of child support.
457:53 Enforcement by Third Parties. Any valid agreement or arbitration award made under this subdivision may be enforced by the legal guardian of any child for whom support is owed, by any person having lawful custody of such child, by the state of New Hampshire or any agency or political subdivision having cause for the recovery of sums paid for or
services provided to the child of a non-supportive parent under the laws of this state, and by the authorized representative of any foreign state or jurisdiction, agency, or political subdivision having such cause to the extent that such claims are entitled to lawful recognition in this state. No such agreement or arbitration award, however, shall be binding upon the state of New Hampshire, a foreign state or jurisdiction, agency, or political subdivision, nor upon any such legal guardian or person in lawful custody, unless the rights of such parties are proven to derive from the same award or agreement.
457:54 Modification by Agreement. All awards or determinations, and all termination or settlement agreements obtained under this subdivision may be modified by subsequent written agreement of the parties, and shall be enforceable to the same extent as any agreement obtained under this chapter.
457:55 Arbitration of Disputes Arising Subsequent to Agreement, Award, or Decree. All disputes arising out of or involving the modification of a termination or settlement agreement, any arbitration award or determination, or a court decree obtained under this subdivision shall be subject to binding arbitration in the same manner as other marital disputes under this subdivision; provided, however, that such agreements, awards, determinations or decrees shall not be modified through arbitration except to the extent that they involve child custody, child support, visitation, spousal support, or to the extent that divorce decrees are modifiable under the laws of this state.
457:56 Alimony Awards. An arbitration award may provide for alimony to be paid. In deciding upon such awards, arbitrators shall be governed by the considerations of RSA 458:19, and shall make such awards as they may deem necessary to meet the intent expressed by RSA 458:19.
457:57 Action for Divorce. Where cause exists for an action for divorce under RSA 458, it is unaffected by the unilateral termination of the marriage by the guilty party. Such action may be maintained by the innocent party, notwithstanding the provisions of this subdivision, in which case the provisions of this subdivision with respect to arbitration
shall not apply, provided that such action is commenced within 30 days of termination.
457:58 Full Faith and Credit. Any person whose marriage has been terminated in accordance with the provisions of this subdivision may submit a settlement or termination agreement, or arbitration award or determination obtained under this subdivision, to the clerk of court for the superior court of the county having jurisdiction to hear cases arising under this subdivision for purposes of certification by the court, and shall be entitled to have such documents placed on record and certified by the court, after which they shall have the same force and effect as a consent decree and shall be entitled to full faith and credit in foreign jurisdictions.
457:59 Duty of Arbitrators. It shall be the duty of arbitrators selected under this subdivision to dispose of all disputes presented to them in a fair and expeditious manner in accordance with the same criteria and considerations as have previously applied to the dissolution of marriages in this state on grounds of irreconcilable differences.
457:60 Powers in Making Awards. Arbitrators selected under this subdivision shall be authorized and shall have the discretion to dispose of all marital disputes that are presented to them in the same fashion as would a justice of the superior court acting in accordance with the same criteria and considerations as have previously applied to the dissolution of marriages in this state on grounds of irreconcilable differences, and shall be authorized to award such relief as was formerly within the power and discretion of a justice of the superior court under such circumstances.
457:61 Notice; Forms. The bureau of vital records and health statistics, department of health and human services, shall devise forms for the notice of termination of marriage and the notice of revocation specified in this subdivision with the advice and consent of the chief justice of the superior court, and such forms shall contain and call for only such information as justice and the proper administration of government may require.
2 Repeal. RSA 458:7-a, relative to absolute divorce and irreconcilable differences, is repealed.
3 Effective Date. This act shall take effect January 1, 1995.
judiciary.....
HB 1560-FN
LBAO
LSR 94-2138 *
Revised 1/26/94
Page 1 of 2
FISCAL NOTE for an act permitting termination of marriages by agreement without court approval, and requiring binding arbitration of all marital disputes based upon irreconcilable differences.
FISCAL IMPACT:
The Judicial Branch and Department of Health and Human Services indicate that this bill will reduce state revenue by $46,708 in FY 1995, by $93,416 in FY 1996 and by $93,416 each year thereafter. State expenditures will decrease by $33,843 in FY 1995, by $68,485 in FY 1996 and by $68,485 each year thereafter. There is no fiscal impact on county and local revenue or expenditures.
METHODOLOGY:
The AOC estimates that this bill would result in 2,632 divorce cases removed from the Superior Court. However, it is also estimated that 695 new appeal cases will result. The net result is a reduction of 1,937 divorce cases. This reduction in cases would reduce the following revenue generated from filing marital case entities:
Guardian ad litem $56,990
Facility Escrow 4,170
General Fund Revenue 32,256
Total $93,416
The reduction in case load would also reduce by 81%, the percentage of a marital masters time to hear these cases. This reduction in expenditures is calculated as follows:
Salary and benefits of Marital Master $90,639
Reduction in workload 81%
Total $73,418
The DHHS has determined that it will require $1,250 for printing and $4,083 in personnel costs to develop, print, and distribute new forms. Of this expense, $400 would be first year costs for form creation and preparation for distribution. The division further states that it does not have sufficient staff or funding for this effort.
HB 1560-FN
LBAO
LSR 94-2138 *
Revised 1/26/94
Page 2 of 2
The AOC assumes all revenue and expenditure estimates on CY 1992 marital caseload statistics. It is estimated that perhaps 90% of all divorces are brought under "irreconcilable differences" and that 25% of all marital cases involve indigent parties. Although not addressed in this bill, it is assumed that indigent cases will continue to be heard by the Superior Court. The AOC is unable to determine at this time, the cost of establishing a panel of arbitrators, establishing a fee schedule, or estimating the costs of recording and certifying agreements and awards within each county clerk's office.