IMO Sheys and Blackburn: When New Hampshire is no longer the home state, can New Hampshire maintain jurisdiction?

The New Hampshire Supreme Court issued its opinion In the Matter of Mary Sheys and Eric Blackburn on July 15, 2015. 

The Facts

Mother and father married in 2005. They had two children during their marriage. When they divorced in New Hampshire in 2009, the parties agreed on a parenting plan providing mother with primary residential responsibility. Father exercised parenting time every other weekend, two afternoons per week and two weeks in the summer. In January 2013 mother told father she was relocating to Natick, Massachusetts with the children to take a new job after having been unemployed since November 2012. Mother moved the following month in February 2013. After the move, father filed in New Hampshire for primary residential responsibility and contempt. The 9th Circuit – Family Division – Manchester denied the father’s requested relief and entered a new parenting plan providing father with parenting time on alternating weekends, summers, school vacations and time in Natick as the father was available.

In December of 2013 father again asked the court to modify the parties’ parenting plan. Mother asked the court to dismiss the matter as she and the children had been residing in Massachusetts for over a year and she had already filed a motion in the Massachusetts Probate & Family Court to modify the parties’ divorce decree and parenting plan. The court granted mother’s motion to dismiss finding that it was appropriate for the court to decline continuing jurisdiction over this matter because mother and the children no longer had a significant connection with the State of New Hampshire.

The Appeal

The father appealed arguing that the trial court erred when it ruled that the children did not have a significant connection with New Hampshire

The Holding

As a matter of first impression, the New Hampshire Supreme Court held that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) New Hampshire had continuing exclusive jurisdiction to deal with the post-divorce parenting matters. The Court agreed with the majority of jurisdictions in finding a child has a “significant connection” with New Hampshire when one parent still resides in state and exercises more than de minimis parenting time in New Hampshire. The Court noted that although the mother asked the Court to affirm on the alternative grounds of inconvenient forum, this issue was never argued and the trial court never considered it.

The Takeaway

This case provides clarification that New Hampshire will continue to hear parenting matters even after New Hampshire is no longer the “home state” of the child. The UCCJEA takes a broad view. The opinion notes that most states have determined that the “significant connection” requirement in the act can be met so long as the parent that remains in the state exercises some parenting time. For example, a Georgia court found a significant connection for parenting time that was exercised every other weekend and 8 weeks in the summer. Here, the Father exercised parenting time in New Hampshire on alternating weekends, two non-consecutive weeks in the summer, five days during April vacation in even years and five days during February vacation in odd years.

This holding may make it more difficult for a custodial parent to litigate from their new state. However, the Court left open the issue of whether New Hampshire may be an inconvenient forum under RSA 458-A:18. Custodial parents may still be able to transfer the case to their new state with an inconvenient forum argument.

 

Guardian ad Litem Reports are Confidential

After you receive the GAL report and read it, your first instinct might be to share the document with family, friends and perhaps professionals such as therapists or teachers. It is important to hold back on this urge because the GAL report is confidential.

Circuit Court Rule 2.15 states: “Written reports of the guardian ad litem shall be kept in an envelope marked confidential within the court file, and shall only be disclosed to parties or attorneys to the action.” The GAL Report is not part of the public court file that is accessible to any person with enough curiosity to travel to the courthouse to review the file. Thus, makes sure you obtain either agreement from any other party to the case or a court order allowing the GAL report to be disseminated.

Lessons from the Superbowl on Co-Parenting

A court will look to many factors under RSA 461-A:6 when making an initial determination of parental rights and responsibilities. Provided that each parent is capable of providing a safe, loving home, one of the most important factors that will be considered is the ability of each parent to support the relationship of the children with the other parent. Three specific factors under the statute read:

  • "The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent."
  • " The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent."
  • "The support of each parent for the child's relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent."

Following the Patriots amazing Superbowl victory (Yayyyyyy Pats!!!!), I came across an article commending actress Bridget Moynahan, Tom Brady's ex-girlfriend and the mother of his oldest child, for her gracious congratulatory tweet sent out while her son was celebrating on the field with his dad, stepmother and half-siblings:

Christine Coppa, the article's author and a single mom writes about the difficult journey a parent must go through to come out on the other side a supportive co-parent. She observes:

Moynahan has “moved past the bitter parts that most breakups create, and onto accepting their relationship as a unique family,” relationship expert Amy Spencer, author of Meeting Your Half-Orangeand Bright Side Up, tells Yahoo Parenting. “Her son should be damn proud of his dad, and that tweet is a beautiful sign that Bridget wants to support her son that way.”

Supportive co-parenting allows the child to see her parents as a team rather than as opponents, and that is critical to their adjustment and development. As mentioned above, it can also be the decisive factor for a court when determining residential responsibility. There are numerous resources available to assist parents in the co-parenting journey. Here are some of my favorites:

 

Spenard: Voluntary Unemployment, Financial Affidavits and Post-Trial Evidence

In the Matter of Susan Spenard and David Spenard was decided on October 17, 2014

The Facts
Husband and Wife married in 1998. During the marriage the Husband worked in real estate and owned several businesses and the Wife worked as an entertainer. Before the parties’ divorce decree was issued, the Husband sold a promissory note that he had failed to disclose on his financial affidavit. During the divorce trial, the Wife argued that she could no longer work at all due to medical issues. She failed to present any expert testimony to back up her claim, however, and the Court found that she was voluntarily unemployed. The Wife filed a Motion to Reconsider and sought to present new evidence of her medical issues. The Court denied her Motion.


The Appeal
The Wife appealed on three grounds. First, the Wife argued that RSA 458-C:2 requires an express finding of under or unemployment when presented with evidence supporting such a claim. Second, she argued that the lower Court erred in refusing to reopen her case based on her newly discovered medical evidence supporting her claim that she cannot work. Third, the Wife argued that the Husband’s promissory notes were marital property, and, therefore, subject to equitable distribution.

The Holding
First, the Court held that whether or not a party is voluntarily under or unemployed is a question of fact for the fact-finder, and RSA 458-C:2 does not require an express finding of voluntary under or unemployment when presented with evidence of such a claim. Second, the Court held that a party who seeks to reopen a case to submit new evidence must demonstrate that s/he was not at fault for failing to present such evidence at the hearing. Mere difficulty or financial expense of obtaining such evidence is not sufficient to overcome this burden. Third, the Court held that promissory notes are marital property and thus must be listed on financial affidavits and are subject to equitable distribution.

 

Courthouse Divorce File: What's Private?

“All human beings have three lives: public, private, and secret.” 
― Gabriel Garcí­a Márquez, Gabriel García Márquez: a Life

The public thirsts for gossip, apparent in websites like TMZ and Perz Hilton. Celebrity splits are big news such as Tom Cruise and Katie Holmes to Mariah Carey and Nick Cannon. While most of us do not enjoy celebrity status, the small town rumor mill can be just as virulent as celebrity gossip. Divorce litigants should beware the rules regarding public access to their divorce file. Anyone can head down to the local courthouse and view all the happenings in the neighbor's divorce or co-worker's custody battle.  

The prominent case on this issue is the Petition of Keene Sentinel issued by the New Hampshire Supreme Court on August 27, 1992. During the 1990 political campaign for New Hampshire’s Second congressional seat, The Keene Sentinel sought to gain access to one of the incumbent’s, Charles Douglas III’s divorce records. The clerk granted the Keene Sentinel only some of the divorce records, citing privacy concerns. The Keene Sentinel brought suit and Charles Douglas III sought to intervene, asking the Superior Court to dismiss the suit. The Superior Court ultimately denied the Keene Sentinel’s request.

The Keene Sentinel appealed, arguing that “disclosure should have been permitted pursuant to RSA chapter 91-A, the Right to Know Law.” The Supreme Court held that a party in a divorce proceeding cannot have the records sealed simply for the sake of general privacy concerns.  The Court held that “[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists.” If a trial judge does make such a determination, it must use the least restrictive means available to secure the parties’ privacy rights.

This generally requires that the orders, pleadings and other materials in the file are open to the public for viewing. An exception is a financial affidavit. A party is required by the court to complete and submit a sworn financial affidavit, detailing all income, property and debts. This document usually contains very personal information such as social security numbers, bank information and paystubs. Family Division Rule 2.16 and RSA 458:15-b requires financial affidavits to be confidential for non-parties. In practice, this means that the court file contains an envelope which the clerk will remove if you are not a party to the case. Financial affidavits filed in divorce, legal separation, annulment, or parenting petition cases shall be confidential to non-parties. Access to such financial affidavits shall be pursuant to Family Division Rule 1.30. However, a person not otherwise entitled to access may file a motion under Family Division Rule 1.30 to gain access to the financial affidavit. 

The Associated Press v. NH gives some context to the rule regarding financial affidavit confidentiality. The New Hampshire Supreme Court issued its holding in this case on December 30, 2005.   After RSA 458:15-b took effect on August 10, 2004, which, inter alia, made financial affidavits in divorce proceedings only accessible to parties to the proceeding and their attorneys of record, the Associated Press filed suit claiming the law was unconstitutional. The Associated Press argued that the law “violated the public’s right of access to court records” under the State Constitution, and that it was an impermissible restraint on freedom of speech per the State and Federal Constitutions.  The trial court determined that the law was not unconstitutional, and dismissed The Associated Press’ suit. The Associated Press appealed the trial court decision, arguing that the trial court erred in finding that the law was constitutional.

 The Supreme Court agreed with the trial court, and finding RSA 458:15-b constitutional. The Court ruled that although the public has a right to access government documents, including court documents, the right is not unlimited.  It opined that "the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified,” which included the compelling interest to prevent exposing divorce litigants to identify theft and fraud. The Court’s ruling was narrow, however, and only applied to keeping financial affidavits sealed. 

In general, the Court may upon request consider keeping confidential case-related materials for collateral cases that are already confidential pursuant to New Hampshire law. These include termination of parental rights, adoption, juvenile criminal records and abuse/neglect cases and DCYF records.  

 

Maves and Moore: What Constitutes Income for Child Support Purposes?

The New Hampshire Supreme Court issued in the Matter of Janice E. Maves and David L. Moore on August 14, 2014

The Facts

Husband and Wife divorced in 2004.  At the time of the divorce, Husband was awarded the parties’ Farm, which was initially used as a commercial campground and contained condos that were rented seasonally. The Farm was an S-type corporation, with Husband as primary shareholder.  At the time of the divorce, Husband was ordered to pay $650 per month in child support for their only child, which was increased to $950 in 2008.  The parents shared parenting time.

In 2011 Husband changed the Farm’s business model to condo sales.  As a result, the Farm’s 2011 tax return showed an income of $1,000,389 as capital gains.  Husband gave himself a line of credit from the corporation.  As a result of the increase in the Farm’s capital gains and the extended line of credit, Wife sought an upward modification of child support based on materially changed circumstances.  Husband argued that capital gains are not income for the purposes of child support, and even if they were, the Farm, not Husband, earned the capital gains.  Family court disagreed with Husband and increased his monthly child support payments to $2,411.  The Court also ordered Husband to pay $9,644 in arrears.  The Court based this finding on a conclusion that the Farm’s capital gains were irregular income that should be included in Husband’s gross income.  The Court used Husband’s adjusted gross income to calculate support.

The Appeal

Husband and Wife both appealed.  Wife argued that the line of credit should be counted as income, the capital gains should be “regular” income, and family court should have used gross income minus legitimate business expenses in determining Husband’s income, not adjusted gross income.  Husband argued that the Farm’s capital gains were not his income or personal profits, the Farm was part of the divorce settlement and therefore not able to be the basis for child support payments, that capital gains were not income for the purposes of child support calculations, and that the amount he was ordered to pay was grossly excessive.

The Holding

The Supreme Court held that capital gains are considered income for the purposes of child support calculations. The Court also held that the line of credit was not income, because “[t]he capital gains were treated as [Farm] funds, which, in turn, [Husband] drew down as a line of credit.”  The Court further held that although the Farm was awarded to Husband as part of a property settlement, it was a business, and therefore any capital gains were income for child support purposes.  Lastly, the Court held that courts should not solely rely on a payer’s adjusted gross income on tax returns to prove income.  Rather, the Court held that the “proper measure of gross income is to deduct legitimate business expenses from business profits.”

The Takeaway

There have been many cases over the years arguing about what income may be used for child support purposes. It is worth reading the definition provided in RSA 458-C:2,IV.   

"Gross income'' means all income from any source, whether earned or unearned, including, but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, alimony, business profits, pensions, bonuses, and payments from other government programs (except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security income, food stamps, and general assistance received from a county or town), including, but not limited to, workers' compensation, veterans' benefits, unemployment benefits, and disability benefits; provided, however, that no income earned at an hourly rate for hours worked, on an occasional or seasonal basis, in excess of 40 hours in any week shall be considered as income for the purpose of determining gross income; and provided further that such hourly rate income is earned for actual overtime labor performed by an employee who earns wages at an hourly rate in a trade or industry which traditionally or commonly pays overtime wages, thus excluding professionals, business owners, business partners, self-employed individuals and others who may exercise sufficient control over their income so as to recharacterize payment to themselves to include overtime wages in addition to a salary. 

 

It is certainly an interesting argument to make that income derived from a business awarded to a party in a divorce is not income for the calculation of child support but rather property settlement. It was doomed to fail though, as the result would produce absurd result. Any self-employed person would avoid having their income considered for child support. A person’s investments that derive income would similarly be discounted. The intent and plain meaning of the statute is to capture all income for the purposes of child support. 

 

In Re Serodio and Perkins: You May Enforce a Prenup without a Copy of the Prenup

In the Matter of Cheryl Serodio and Arthur Perkins: Existence of Prenuptial Agreements can be proven without providing the written, executed agreement. The New Hampshire Supreme Court issued its opinion on August 22, 2014.

The Facts

Wife filed for divorce from Husband in 2010.  In 2011, Husband filed a motion to have a prenuptial agreement enforced.  Husband did not present the family court with a copy of the agreement with Wife’s signature, because he alleged that Wife held the sole, signed copy, and she had lost it. Wife filed a motion to dismiss Husband’s claim, arguing that she never signed a prenuptial agreement.  Wife also argued that even if she had signed a prenuptial agreement she did not do so voluntarily because she was coerced.  The trial court granted Wife’s motion to dismiss.  The trial court granted Wife’s motion on two grounds.  First, the Court held that a prenuptial agreement that is not signed by the party charged is unenforceable.  Second, the Court stated that even if the parties had an oral prenuptial agreement, oral prenuptial agreements are unenforceable.

The Appeal

Husband appealed and argued that the trial court did not apply the correct standard of review to Wife’s motion to dismiss. He argued that the real issue that trial court should have considered was whether a properly executed agreement existed before he and Wife were married, not if the properly signed agreement existed now.

 The Holding

The Supreme Court agreed with Husband and reversed the family court’s decision.  The Court held that, while RSA 506:2 requires that any agreement made in consideration of marriage be in writing, the actual writing need not be produced to prove its existence.  A Court can find that a prenuptial agreement existed based on extrinsic evidence, including testimony.

The Takeaway

Make sure you keep your important documents such as prenuptial agreements and estate plans in a safe place. Upload a copy to your icloud, give a copy to several relatives, or keep it in a safety deposit box. The good news is that the Perkins holding will allow you to attempt to enforce the prenup anyway. The bad news is the effect of not being able to produce a copy of the agreement is a very expensive trial. 

 

 

Proposed Changes to a Parent's Right to Counsel in Abuse/Neglect Cases

A few years ago, during the state's fiscal crisis, the legislature did away with the statute requiring that any parent accused of abusing or neglecting their child in a child protection case be appointed an attorney to represent them. I posted here about my view that all parents should be entitled to counsel in abuse neglect proceedings. The issue was argued before the New Hampshire Supreme Court in In Re C.M, where the Court held that parents do not have a constitutional per se right to counsel, though appointment of counsel should be considered on a case by case basis. In July 2013, the legislature reinstated the statutory authority under RSA 169-C:10, II (a) requiring court appointment counsel for indigent parents. 

Now, there are proposed changes to a parent's statutory right to counsel which would require the attorney to withdraw following the dispositional hearing unless there was a court order noting the specific duration and purpose of the continued representation.. The New Hampshire Supreme Court Advisory Committee on Rules has requested comment from the bench, bar, legislature, executive branch or public. The report on the rule changes can be found here

A colleague of mine, Lucinda Hopkins, who is an experienced abuse neglect attorney, wrote to the New Hampshire Supreme Court Advisory a wonderful letter expressing why this rule change is ill advised. She has given me permission to share. I hope you will take a moment to read and perhaps reach out to the committee yourself to express your opinion. For more information on how to contact the committee for comment, see here


Date: 5 September 2014

To: New Hampshire Supreme Court Advisory
Committee on Rules
From: Lucinda Hopkins, Attorney at Law,
NH Bar ID # 1193
Re: Proposed Rule Change deeming parent's legal counsel withdrawn after neglect or abuse dispositional hearing

Dear Committee Members,

Let's start with the premise that a parent in a neglect or abuse matter should have legal representation. In a world where money is no object I doubt most people would object to legal representation for parents in a neglect or abuse proceeding. Thus, encroaching on legal representation for a parent in a neglect or abuse matter stems from financial considerations.

The second premise is the child is the paramount consideration in a neglect or abuse proceeding. I went to law school to advocate on behalf of children. After 30 plus years of practice I have a fair amount of experience which I hope will shed light on how legal counsel for parents not only serve to promote and protect the interests of the parents but also serve to safeguard the interests of the children.

The state's role is driven by policies that may coincide with the a child's interest but may also diverge. Otherwise, we would not need judicial oversight: the child protection system could act administratively. Removing children from their homes and severing family ties, however, carries significant societal implications. The court system serves as the proper forum when the state takes such actions.

Federal laws impose on the state agency the ideal of "permanency" and enforce this ideal by monetary incentives. This agency perspective may override what the child needs. Further, neglect and abuse law--as with all aspects of law--fluctuates. What is laudable today may--often through the efforts of legal advocates--come to be recognized as unacceptable.

A Guardian ad Litem, a party along with the state and parent, is not a legal advocate, most often not trained as a lawyer, and does not have the expertise or the role to legally advocate for a child. Neither the state nor the Guardian ad Litem possess the intimate knowledge and bond with the child that a parent does.

Since neglect or abuse proceedings are confidential, how children fare in the child welfare system remains a mystery. I know from my own experience that "permanency" has not always lived up to its ideal. I have heard from foster parents who adopted children, now adults, who I represented that when the children reached the age of majority sought out their birth parents and went to live with them. I have stayed in touch with children, now adults, who I represented who sought out and maintain contact with their birth parents. I have represented a parent in a neglect matter who lost her child to an adoptive family, where the child was abused and ended back in the system traumatized and psychologically damaged. I have been involved in a matter where the state confidently assured the court that a child was adoptable, a termination of parental rights was granted, and the child remained (at least during the time I was aware) unadopted and without any family whatsoever. I recall another case where the child eloquently expressed wanting both the parent and the foster parent to be part of the child's life.

I present these anecdotes to emphasize that the state and the Guardian ad Litem are not necessarily the ones speaking for what the children want. To the contrary, as they so often state, they are driven by the goals of permanency. I ask the committee to seriously consider how crucial legal representation is for questioning public policy and decisions permanently affecting and altering individual lives.

I would be astounded if the vast majority of neglect or abuse court cases did not involve individuals with minimal financial resources, disabilities, childhood trauma, dysfunctional family backgrounds, and scant education. Post-dispositional hearing is where legal advocacy most helps a parent. Some--but not all--of the critical issues that arise where a parent needs legal expertise and result in reunification or termination of parental rights include:

 

  • Whether the state needs a psychological evaluation and if so how to ensure an evaluation is fair and thorough or lacks validity.
  • How to navigate housing requirements by the state that the parent have a certain amount of bedrooms for the children's return home when the parent does not have custody of the children.
  • Whether a bonding assessment is necessary and if so, how a fair evaluation can best be conducted.
  • Whether a parent aide is accommodating a parent's disability, and if not, what accommodations are needed
  • Whether the siblings' bonds are appropriately considered.
  • Consideration of how best to address siblings' differing wants and needs.
  • How to address domestic violence issues and their effect on permanently severing a parent's rights.
  • How to address substance abuse issues and their effect on permanently severing a parent's rights.
  • How to address medical issues and their effect on permanently severing a parent's rights.
  • Holding the state accountable for implementation of services that are reasonable and appropriate.
  • Countering the presentation of evidence as relevant or material and presenting relevant or material information that may not be disclosed.
  • Understanding how other laws, such as the American with Disabilities Act, guardianship statutes, and domestic relations and immigration laws relate to a neglect or abuse proceeding.
  • How incarceration relates to compliance with neglect or abuse dispositional orders.
  • Whether visitation provisions are unduly restrictive and if so, whether the court or the state has the discretion to decide visitation.
  • Whether a child should have legal counsel.
  • Whether the state has to comply with an order for mediating an alternative long-term living arrangement for the child or an open adoption.
  • Whether an interlocutory appeal or writ of certiorari should be filed to protect a parent's rights before a termination of parental rights is filed.
  • Ensuring that discovery is forthcoming in order to assess a parent's compliance with dispositional orders and to counter disputed representations.
  • Understanding and ensuring compliance with the state's policies for neglect and abuse matters.
  • Investigating and advocating in relation to relative placement particularly when such placement is disputed (either by the agency or the parent).
  • Understanding the inner workings of the Interstate Compact on Placement of Children Act: how to facilitate the administrative process in each state.
  • Understanding how the Indian Child Welfare Act may impact a neglect or abuse proceeding.
  • Analyzing jurisdictional issues relating to a neglect or abuse proceeding with another proceeding relating to jurisdiction of the child.
  • Understanding how the Uniform Child Custody and Jurisdiction Act relates to a neglect or abuse proceeding.
  • Understanding available resources, such as shelters, what shelters are appropriate, and alternatives when factors prevent access.
  • Understanding mental illness, treatment, and medication needs.
  • Understanding substance abuse, treatment, and compliance.
  • Understanding parole or probation conditions in conjunction with dispositional orders.
  • Knowledge and appreciation of a parent's constitutional rights and the ability to argue those rights.

Lest you think I went through some kind of checklist or reviewed laws relating to neglect or abuse proceedings, the following list was written off the top of my head from memory. I have encountered each of these issues. From conversations with fellow practitioners they have grappled with these along with other issues after a dispositional hearing. The list is nowhere complete.

I hope I have conveyed the ultimate difference legal representation can make in a neglect or abuse proceeding post-dispositional. I also hope I have caused you to consider that the state and the Guardian ad Litem are not necessarily always right when it comes to promoting a child's interest. If this were so, we could dispense with court proceedings.

I ask you to consider also that a parent, the one who has been most intimately connected to the child, trusts her or his lawyer. The parent will confide in the lawyer and divulge information to the lawyer that the parent may not convey to the state, the Guardian ad Litem, or the court. The parent often does not appreciate the need for advocacy. The lawyer also will help the parent when that parent is not up to the responsibility of adequately caring for a child by counseling the parent to engage in the process in a way that minimizes the suffering for everyone.

Most importantly, the child did not come into world alone. I have found it best to be humble in expecting prevailing laws to have all the answers. To remove a parent's lawyer from a neglect or abuse proceeding when the lawyer's services are most needed, removes the opportunity to question laws and decisions that need to be challenged. The court needs a full adversarial system to get the full picture. Neither the state nor the Guardian ad Litem compensates for the parent's voice. Parents need legal representation for their voices to be heard. Children, the paramount consideration, need--as much as the voices of the state and Guardian ad Litem--to have the voices of their parents heard.

Sincerely,

Lucinda Hopkins
603.361.8168
www.nhlawhelp.com

Norberg v. Norberg: Alimony Cannot Be Waived By Agreement

When negotiating a settlement, it is important to keep in mind that New Hampshire law does not allow parties to waive future alimony. The 1994 case of Norberg v. Norberg is controlling. It explains that although property division is not modifiable, alimony is an entirely different matter. Even if the parties enter into an agreement that expressly waives their right to seek alimony, the court retains the authority to revise its orders under RSA 458:14

How this factors into settlement negotiations will depend on the facts of your case. First, whether you go to trial or reach a settlement, the court will retain the authority to modify alimony. It should be carefully considered when providing the other party with  a larger division of the assets or taking on additional debt in exchange for a reduced term or amount of alimony. Knowledge of the standards for modification, especially in light of the recent Lyon decision, will also be important to come to a knowing and voluntary settlement. 

In Re Lyon: Extension or Renewal of Alimony to be Made as Justice Requires

On May 30, 2014, the New Hampshire Supreme Court issued an opinion In the Matter of Lyon. This decision clarifies the standard to be applied in requests to extend or renew alimony. 

The Facts

Husband and Wife divorced in May 2007. They entered into a permanent stipulation that was incorporated into their divorce decree that required Husband to pay to Wife $3,000 per month in alimony from January 1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1, 2007, through June 30, 2012, “or until the death of either party, whichever first occurs.”

A month before the scheduled termination of the alimony, the Wife petitioned for an additional three years. She alleged that her newly diagnosed attention deficit hyperactivity disorder necessitated an extension of alimony so that she could afford her medication and finish her education. The Husband filed a Motion for Summary Judgment, arguing that the Wife had failed to establish an unanticipated or unforeseeable substantial change in circumstances. The trial court granted the motion and dismissed the petition.  

The Appeal

The Wife appealed and argued that the trial court erred by applying the standards that govern a motion to modify alimony to her petition to extend. Although the standard to modify required a person to prove that a substantial change in circumstances had occurred since the original award that made the amount of alimony either improper or unfair, she argued that she was not required to meet that test. Instead, she said that she was subject to the same standard as an initial award of alimony.

The Holding

The Supreme Court held that when a party seeks to extend or renew, either in modified or unmodified form, “the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount[,] . . . in the light of all the circumstances then existing.”

The Takeaway

The standard articulated in the Lyons decision will be easier to meet for alimony recipients as opposed to a substantial change in circumstance test.  This has the potential to create a chilling effect a person’s willingness to agree to pay alimony as one can be less certain of the end date for the payments. Even so, the recipient must still prove that justice requires an extension. While the facts do not require a substantial change in circumstances, it seems likely that the trial court would still examine all of the circumstances to determine why, if short term alimony was awarded, the recipient has not put him or herself into a position to be self-supporting.