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James Ogorchock
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James Ogorchock’s Answers

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  • Is this defamation of character? What should I do?

    My soon to be ex husband changed his divorce petition, 4 months after filing, to fault grounds adultery. He has been telling people, along with his lawyer that I cheated on him. It's a lie and he knows it's a lie. I recently got a packet of interr...

    James’s Answer

    Allegations in the judicial process typically enjoy absolute immunity, so his pleadings, unless filed in bad faith, are likely not actionable. Statements to counsel are likely not actionable either.

    However, your question alleged that he had been telling "people." If they are people outside of the judicial process (such as friends), you may have a defamation claim.

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  • New Hampshire Divorce, Petitionee has been served properly, but I expect nothing in return. What then?

    Proper service on a NH divorce has been done. Since then my spouse has disappeared and for reasons I won't go into, I suspect there will be no response at all--just dead air. No hiring of an opposition lawyer, no appearance. I imagine there is ...

    James’s Answer

    Once you file the Return of Service and the other required papers, you can request an expedited hearing, and possibly be done in just a few weeks depending on the court and the circumstances, but you may wish to consider annulment instead of divorce for various reasons if the marriage was only for 44 days.

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  • My sons grandparents on his fathers side are currently taking me to court for grandparents rights. what do i do?

    he has only met them 2 maybe 3 times and that was earlier in his life. he is 15 months now and has no idea who they are. theyve had no contact with him for over a yr and all of a sudden i get court paperwork in the mail about it. my sons father is...

    James’s Answer

    This is an are where you should retain a lawyer to advise you. NH does provide a mechanism for grandparents to seek to assert their rights:

    461-A:13 Grandparents' Visitation Rights. –
    I. Grandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.
    II. The court shall consider the following criteria in making an order relative to a grandparent's visitation rights to the minor child:
    (a) Whether such visitation would be in the best interest of the child.
    (b) Whether such visitation would interfere with any parent-child relationship or with a parent's authority over the child.
    (c) The nature of the relationship between the grandparent and the minor child, including but not limited to, the frequency of contact, and whether the child has lived with the grandparent and length of time of such residence, and when there is no reasonable cause to believe that the child's physical and emotional health would be endangered by such visitation or lack of it.
    (d) The nature of the relationship between the grandparent and the parent of the minor child, including friction between the grandparent and the parent, and the effect such friction would have on the child.
    (e) The circumstances which resulted in the absence of a nuclear family, whether divorce, death, relinquishment or termination of parental rights, or other cause.
    (f) The recommendation regarding visitation made by any guardian ad litem appointed for the child pursuant to RSA 461-A:16.
    (g) Any preference or wishes expressed by the child.
    (h) Any such other factors as the court may find appropriate or relevant to the petition for visitation.
    III. The petition for visitation shall be entered in the court which has jurisdiction over the divorce, legal separation, or a proceeding brought under this chapter. In the case of death of a parent, stepparent adoption, or unwed parents, subject to paragraph IV, the petition shall be entered in the court having jurisdiction to hear divorce cases from the town or city where the child resides.
    IV. If the parent of the minor child is unwed, then any grandparent filing a petition under this section shall attach with the petition proof of legitimation by the parent pursuant to RSA 460:29 or establishment of paternity pursuant to RSA 168-A.
    V. Upon the motion of any original party, the court may modify or terminate any order made pursuant to this section to reflect changed circumstances of the parties involved.
    VI. Nothing contained in this section shall be construed to affect the rights of a child or natural parent or guardian under RSA 463 or adoptive parent under RSA 170-B:20.

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  • My wife and I are getting divorced. We haven't filed yet and still live together. But she dates other men. Is this adultery?

    My wife and I are going to file for divorce next week. We still live together in the same apartment. But during this time, she is dating other men. She admits it and does it right in front of me. Can I claim adultery and/or abandonment during the ...

    James’s Answer

    Keep in mind that dating alone is not adultery. "Adultery" is defined by NH RSA 645:3 which states: "Adultery - a person is guilty of a class B misdemeanor if, being a married person, he engages in sexual intercourse with another not his spouse or, being unmarried, engages in sexual intercourse with another known by him to be married."

    Don't get too excited. Even if you could prove the adultery, no prosecutor is going to bring the case.

    In the divorce context, adultery is one of the fault grounds that, if proven, can alter the property division or have some marginal effect on other issues. Most parties keep their pleadings simple and ignore the fault grounds - proceeing on irreconciliable differences. If you decide that it makes sense to allege adultery, keep in mind that you will have to name the co-adulterer as a party to the divorce and prove that the adultery was the cause of the breakdown of the marriage.

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