New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

Clients often ask about including in their parenting plan a provision requiring both parents to contribute to a child’s extracurricular activity expenses and uninsured medical expenses. These issues were brought before the New Hampshire Supreme Court In the Matter of Cheryl Anne Coderre and Paul A. Coderre on September 30, 2002. The father appealed an by the trial court that ordered him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to the child support ordered under the child support guidelines.

First, the Court determined that uninsured medical expenses are extraordinary expenses that are not included in child support guidelines. The Court looked at the statute regulating child support RSA 458-C and determined that the calculations under the guidelines are presumed to be correct but that the court may adjust the guidelines either upward or downward if it deems this deviation is warranted. More specifically looking at RSA 458-C:5, I(a) which states that the trial court “may deviate from the guideline support amount if it finds that a child will incur ongoing extraordinary medical expenses.” Therefore, the Court upheld the trial court’s order for payment of uninsured health insurance.

Additionally, the Court held that “extracurricular activity expenses are part of basic guidelines support” because they fall into the same category of such basic support as food, shelter and recreation. Because there is no language to the contrary in the guidelines the Court concluded that extracurricular activity expenses are included in the parties’ total support obligation. Therefore, the Court reversed the trial court’s decision on this matter.

In sum, a court has discretion to award uninsured medical expenses that are separate from the child support award determined by the guidelines. On the other hand, extracurricular activity expenses are considered to be included in the child support guidelines and may not be awarded separately.

Blog credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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Summer is finally here with vacation plans, summer camps and trips to the grandparents in the works.  I read a great blog today by Attorney Robert L. Mues of the Ohio Family Law Blog reminding parents who will be away from their children to sign a medical authorization for caregivers. Although doctors may provide treatment in a truly life threatening situation, the medical authorization will insure that your child will receive the medical treatment he or she needs in a timely manner without lots of red tape.

Attorney Mues was kind enough to share his emergency medical authorization with readers.

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On this blog, we review new domestic relations cases that are issued by the New Hampshire Supreme Court such as the recent Lemieux and Gendron and Plaistek opinions. However, there are many older opinions which are worth reviewing periodically. Here, we will review the case In the Matter of Tatjana A. Donovan and Robert F. Donovan which was issued on April 1, 2005.

The major crux of the case deals with a section of the stipulation which required both parties to contribute to their children’s educational expenses through college in an amount proportionate to their respective incomes. Robert asked the trial court to strike this portion of the parties divorce decree in light of the passage of House Bill 299, which provided: "No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school." RSA 461-A-14, V. The trial court refused, and Robert appealed the order.

The New Hampshire Supreme Court determined that as general rule statutes apply prospectively rather than retroactively. In other words, orders made prior to February 2, 2004, the day that the new statute became effective, that required a parent to contribute to a child’s college expenses were enforceable. Therefore, although no new orders may require contribution by a parent to a child’s college expenses, orders made prior to February 2, 2004 remain effective.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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Child support in New Hampshire is calculated according to a formula set forth in RSA 458-C:3. The percentage of the parties’ income that will be the root of the calculation is based on how many children are receiving support.

Number of Children Percentage of Net Income 
1 = 25 percent 
2 = 33 percent 
3 = 40 percent 
4+ = 45 percent 

·           The total support obligation is calculated by multiplying the parents’ total net income by the percentage allocated for each child. You can find the definition of “net income” under RSA 458-C:2 VI.

·           Once the total support obligation is determined that amount will be divided between the parents in proportion to their incomes.

·           Parents’ income is adjusted in the formula for certain expenses that are allowed under the statute, such as child support obligations for other children, health insurance paid for the child(ren), state income taxes, and daycare expenses.  

·           There is a “self-support reserve” when calculating child support. The “self-support reserve” means the poverty level standard of need as established by the department of health and human services for a single individual living alone. If the paying parent's gross income is less than the self-support reserve and the court has determined that the parent is not voluntarily unemployed or underemployed, the court will order the minimum support order, which is $50.00. Additionally, if the paying parent’s gross income is greater than the self-support reserve, but the calculated support payment reduces the paying parent’s income below the reserve, the paying parent’s share is presumed to be the difference between the self-support reserve and the adjusted gross income but no less than the minimum $50.00 support order.

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Can a same-sex couple adopt a child together in New Hampshire? The question, although simple, does not have a simple answer. Currently, the laws in New Hampshire leave the question open to interpretation.

As I have blogged about previously, New Hampshire is one of four states that recognizes a civil union. New Hampshire's civil union statute confers "all the rights and [is] subject to all the obligations and responsibilities provided for in state law that apply to parties who are joined together" in marriage.  However, the adoption statute allows for a "husband and wife together" or an "unmarried adult" to adopt. The adoption statue, when strictly interpreted, does not reflect the changes in the law regarding civil unions.

At this point, different judges have different interpretations of the adoption and civil union statutes. Until the legislature addresses the issue and revises the adoption statute to reflect the new civil union law or a case goes up to the supreme court, a same-sex couple may encounter a bump in the road towards adoption. For those proactive about such issues, you can contact your local state representative and bring the issue to their attention.

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On June 13, the NH Supreme Court released an opinion on In the Matter of Richard R. Lemieux and Joanne Lemieux. In this case, Richard and Joanne were divorced in 1990. Their final divorce decree included stipulations regarding Joanne’s portion of Richard’s pension plan benefits, including the percentage each spouse would be awarded and the date that it would be divided. In 2001, Joanne filed a claim with the U.S. Office of Personal Management (OPM) and was awarded a monthly amount based on the date upon which Richard became eligible for retirement.

Richard challenged OPM’s decision by arguing that the monthly amount is based on the value of the pension when the initial divorce action was filed, not when Richard became eligible for retirement. Richard’s position is that the stipulation in the divorce decree should be reformed due to a mutual mistake of law.

The Court states that, “It is well established that courts may grant reformation in proper cases where the instrument fails to express the intentions that the parties had in making the contract.” The Court acknowledges that there is a mistake of law and rules that the parties intended to award Joanne a portion of Richard’s pension as of the date of the divorce decree and not as of the date of his eventual retirement.  

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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New Hampshire law categorizes parenting rights and responsibilities into two groups: decision making responsibility and residential responsibility. These are the new terms for what used to be called "legal custody" and "physical custody," and have been called such since October 1, 2005 when the new statue went into effect.

Decision making is defined as the "responsibility to make decisions for the child." Basically, they are the major decisions about how the child will be brought up. The decisions include the choices a parent makes about a child's education, medical care, religion. Parents may be awarded joint decision making responsibility, so that the parents should agree on the care and upbringing of their child. Alternatively, one parent may be awarded sole decision making responsibility.

Residential responsibility means "a parent's responsibility to provide a home for the child." The parenting schedule will determine what type of responsibility each parent has, whether sole, primary or shared responsibility. The day to day decision making, including the ability to make emergency medical care decisions, rest with the parent the child is with at that time.

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The New Hampshire Supreme Court released an opinion on June 3, In Re Estate of David J. Bourassa that clarified the requirements for Common Law Marriage in New Hampshire. The relevant Statute is RSA 457:39. New Hampshire does not recognize common law marriage. However, what the State may recognize is what can be considered a common law marriage by death. The requirements are in three parts:

1. Cohabitate for 3 or more years preceding death of one partner; and
2. Acknowledge one another as husband and wife; and
3. Generally presumed to be husband and wife in the community

This means that a cohabitating couple who is not legally married who have been together for 3 or more years and hold themselves out to be husband and wife are considered legally married upon the death of one partner. It is the death of one partner which triggers the statute if all other elements are satisfied. A couple who simply cohabitate for 3 or more years is not considered legally married under the law.

In the Bourassa case, the couple, David and Deborah, had cohabitated for 10+ years and had one child together. When David died Deborah filed a petition to be declared David’s common law spouse. The Court determined that Deborah had failed to show that she and the deceased fulfilled the last two prongs of the statute. They had not acknowledged or generally been presumed to be married. On the contrary, they were very vocal in making sure everyone knew they were not married.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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Once the plaintiff has proved that the defendant has abused her within the meaning of the statute, the court may grant a final restraining order that will remain in effect for one year. The court has the authority to order the following protective orders:

• Restrain the defendant from abusing the plaintiff, plaintiff's relatives or plaintiff's household members
• Restrain the defendant from entering the place where the plaintiff resides (except to retrieve personal property allowed by the court and accompanied by a police officer)
• Restrain the defendant from contacting the plaintiff or entering the plaintiff's place of employment, school, or any specified place frequented regularly by the plaintiff or by any family or household member. 
• Restrain the defendant from taking, converting, or damaging plaintiff's property or property he or she may have an equitable interest in
• Direct the defendant to relinquish to the peace officer deadly weapons that are in the possession or control of the defendant

Additionally, the court has the authority to issue orders concerning parenting, support, personal property and use of the family home. These additional orders may include the following:

• grant primary parenting responsibility to either party, and make orders for parenting time
• direct the defendant to pay support to the plaintiff or minor children (if the defendant has a legal duty to support the plaintiff or minor children)
• order the defendant to make automobile, insurance, health care, utilities, rent, or mortgage payments
• order the defendant to pay monetary compensation to the plaintiff for losses directly resulting from the abuse
• order the defendant to take a batterers intervention course or counseling
• grant exclusive use of the family home to the plaintiff (unless the plaintiff has no legal right to reside in the home)
• grant use of household furniture or an automobile to the plaintiff (unless the plaintiff has no legal interest in the property and the defendant has no legal obligation to support)
• order the defendant to pay the plaintiff's reasonable attorney's fees 

Although the court may make these orders in a final restraining, the order is only good for one year. Therefore, after the year has passed, the orders will expire. The plaintiff should take care to make plans to have additional orders in place when the restraining order expires, either through a divorce or parenting petition, to ensure the defendant's continued obligations for support and to make certain there are established parenting rights.

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I recently did a google search to see what came up for answers for "child support and college in New Hampshire." I came across a yahoo answers page in which somebody asked "do I have to pay child support when my child goes to college if I live in New Hampshire." It is a question that comes up often in family law, and a good question to ask.

However, answers at yahoo is not the place to get legal advice. There were a wide variety of "answers," many of which were completely wrong. One responder said "yeah you do because my sisters dad is going to have to pay for college when she goes" while another stated "you have to pay child support until they are done college. This uasually [sic] is standard. I am pretty sure that you only have to pay for only 4 years of college or university."

Generally, the law in New Hampshire is that child support ends when the child turns 18 or graduates from high school, whichever is later.  Yet, the answer to the question is not that simple. Sometimes, there may be a circumstance which can extend child support, for example if your child is disabled. Additionally, did the person asking the question mean to include college expenses as part of support, a question that depends on several things and that  was briefly reviewed in a prior post on this blog.

The correct answer for the yahoo forum, which a few of the responders did advise, is to call an experienced attorney who knows the law and can apply them to the facts in your case.  Do not seek legal advice from anonymous Internet users or your co-worker who recently went through a divorce. You might just get what you pay for.

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In order to prove abuse in a domestic violence petition, the plaintiff must show that the defendant , who is a family or household member or a current or former sexual partner, committed one of the following acts:

• Assault or reckless conduct as defined in RSA 631:1, RSA 631:2, RSA 631:2-a, or RSA 631:3. 
• Criminal threatening as defined in RSA 631:4. 
• Sexual assault as defined in RSA 632-A:2 through RSA 632-A:5. 
• Interference with freedom as defined in RSA 633:1 through RSA 633:3-a. 
• Destruction of property as defined in RSA 634:1 and RSA 634:2.
• Unauthorized entry as defined in RSA 635:1 and RSA 635:2.       
• Harassment as defined in RSA 644:4.

Additionally, the act itself must consitute a credible threat to the safety of the plaintiff. The Plaintiff has the burden to prove the abuse by a preponderance of the evidence, a legal standard that means that it is more likely to be true than not true. Therefore, when testifying at a final hearing, it is important for the plaintiff to give a clear, detailed, accurate account of the actions of the abuser that led him or her to file for the restraining order.

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Attorney Robert L. Mues posted a great blog this morning about the economic stimulus check and child support arrearage. The IRS is treating the stimulus check like a tax refund. If you owe child support, the IRS is seizing or reducing the funds to apply to your arrearage.

Attorney Mues writes:

So what do you do if you and your spouse have filed a joint return and your spouse owes back child support if you want to avoid having the IRS seize your share? Well, you may fall in the category of what the IRS calls an “injured spouse”. To get your share of the stimulus payment, you can file Form 8379, Injured Spouse Allocation. You will then get your share of these payments, and your spouse’s share will be applied to his or her past-due federal or state income taxes or non-tax federal debt such as student loans and child support.

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