Posted on February 19, 2009 by Kysa Crusco

New Hampshire Bar Association's revised public information pamphlet on bankruptcy law is now available

The New Hampshire Bar Association has published its revised public information pamphlet on bankruptcy law. The pamphlet is a great source of information for the public and explains the bankruptcy process and what is can and cannot do for you. However, the pamphlet provides general legal information and should not be substituted for competent legal advice on your specific situation.

The pamphlet explains that:

Bankruptcy is a legal proceeding in which a person who cannot pay his or her bills can get a fresh financial start. The right to file a bankruptcy proceeding is provided by
federal law (Title 11), and all bankruptcy cases are handled in federal court. Filing
bankruptcy immediately stops most of your creditors from seeking to collect debts from you, at least until your debts are sorted out according to the law. Bankruptcy will not stop criminal or government proceedings, nor most domestic relations matters.

It also addresses the common misperception that you will not be able to own anything after filing for bankruptcy:

You can keep your exempt property and anything you obtain after the bankruptcy is filed. However, if you receive an inheritance, a property settlement, or life insurance benefits within 180 days after filing for bankruptcy, that money or property may have to be paid to your creditors if the property or money is not exempt.

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Posted on February 14, 2009 by Kysa Crusco

Governor Lynch plans to close eight New Hampshire district courts to reduce the budget

The Union Leader's Kathryn Marchocki reports that included in Governor Lynch's budget are plans to close eight district courts across New Hampshire. Governor Lynch hopes to save 2 million dollars by closing the courthouses. However, the savings come at the cost of making access to the judicial system more difficult for families. As the Union Leader's article points out, families who would have gone to the Colebrook District Court for relief would have to drive 37 miles to the Lancaster District Court if the plan goes through.

The courts that could close are as follows:

  • Colebrook to merge with Lancaster
  • New London to merge with Newport
  • Claremont transfer operations to the Sullivan County facility in Newport
  • Plaistow to merge with Salem
  • Milford to merge with Merrimack
  • Hooksett to merge with Concord
  • Keene to transfer operations to Cheshire County facility in Keene
  • Hillsborough to merge with Henniker.

New Hampshire district courts have jurisdiction to hear domestic violence petitions, small claims, landlord tenant matters, minor crimes and violations and civil cases in which the disputed amount does not exceed $25,000. In counties that do not yet have family divisions, the district courts also hear juvenile matters. In addition, in the counties that have formed family divisions, many of the district courts house the family divisions that hear divorces, parenting petitions, child support, guardianships, termination of parental rights, abuse/neglect cases, juvenile matters, and some adoptions.

The family divisions that will be affected under Governor Lynch's plan are located in the Colebrook, Claremont and Hooksett District Courts, who will all transfer operations to other county courthouses. Additionally, families in need of a domestic violence protective order would have to travel to other courthouses to gain access to the judicial system.  

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Posted on February 4, 2009 by Kysa Crusco

U.S. Supreme Court in Kennedy v. Plan Adminstrator: Don't forget to change your beneficiaries after your divorce!

The United States Supreme Court issued an opinion on January 26, 2009 for Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, a rare family-law related case heard by the Court. This case is an important reminder to all parties in a divorce action to change your beneficiaries in your retirement plans and life insurance policies after your divorce has been finalized, or your ex-spouse could inherit the funds.

William Kennedy participated in his employer DuPont’s savings and investment plan (SIP) which is covered under the Employment Retirement Income Security Act. ERISA is a federal law that sets minimum standards for most private industry pension plans. This plan gave William the power to both designate a beneficiary to receive the funds upon his death and to replace or revoke that designation. If there is no surviving spouse or designated beneficiary at the time of death then the distribution of funds goes directly to the estate’s executor or administrator.

Upon William’s marriage to Liv, William designated Liv as his SIP beneficiary but did not name a contingent beneficiary. When the couple divorced some years later the divorce decree divested Liv of her interest in William’s SIP benefits.  However, the decree did not call for the execution of a Qualified Domestic Relations Order (QDRO) which would have been one way under ERISA to address the elimination of a spouse’s interest in plan benefits. In addition, William did not execute any documents with his SIP removing Liv as the beneficiary. Nor did Liv follow the SIP’s specific method for disclaiming her interest.

When William died his daughter Kari was named executrix of his estate. Kari asked DuPont to distribute the SIP funds to William’s estate. However, DuPont relied on William’s designation form and paid the funds to Liv. Kari, as executrix of William’s estate, filed suit arguing that Liv had waived her SIP benefits in the divorce and therefore DuPont had violated ERISA by paying the distribution to Liv.

The district court held that the SIP funds should be awarded to William’s estate. However, the court of appeals reversed that decision by holding that while the divorce decree purported to divest Liv of her interest it was not a QDRO and therefore under ERISA it could not be used to waive Liv’s interest. Therefore, the funds were properly distributed to Liv as designated by the plan documents William executed naming her as beneficiary.

The Supreme Court agreed with the court of appeals and held that DuPont had a duty under ERISA to follow the SIP participant’s beneficiary designation even if the waiver incorporated into the divorce decree was conflicting. The incorporated waiver did not amount to a QDRO and the SIP is bound by the plan documents. Therefore, Dupont properly distributed the pension benefits to Liv pursuant to the beneficiary designation form and despite the divorce decree waiver.

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

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Posted on February 3, 2009 by Kysa Crusco

Parents may not waive NH statutory provision prohibiting an order requiring payment of adult child's college expenses

On January 30, 2009 the NH Supreme Court released the opinion for In the Matter of Joseph Goulart, Jr. and Marcia Goulart in which the Court held that parents are not free to waive the provisions of the statute that prohibit any child support order requiring a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school. The Court urged the legislature to reexamine the statutory language regarding approval or enforcement of a stipulated parenting plan in order to take into consideration a situation where the divorcing parties are fully informed, represented by counsel and mutually agree that one or both will voluntarily contribute to their adult child’s college expenses.

Joseph and Marcia divorced in 2005 while their son was still a minor. Part of their final divorce decree incorporated a Stipulated Parenting Plan, negotiated with counsel, which included a provision stating:

 

The parties are aware of the statutory provisions prohibiting the Court from ordering any parent to contribute to expenses for an adult child. Despite this prohibition the parties agree that Joseph shall be responsible for payment of the son’s college educational expenses.

 

In 2007, Joseph filed a motion to define his obligation regarding college expenses for the same reasons he cited before. There was a hearing and the family division ruled that Joseph was expected to assist with college expenses as agreed to in the Parenting Plan.

 

Joseph appealed that decision to the NH Supreme Court, contending that the family division has no authority to enforce the college education funding obligation because the court lacked subject matter jurisdiction to enter such an order under NH RSA 461-A:14, V. The statute reads: “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.”

 

The Court agreed with Joseph that the statute deprived both the superior court and the family division of subject matter jurisdiction to either approve or enforce a provision in a stipulated parenting plan that requires parents to contribute to their adult child’s college expenses. The family division should have modified the parenting plan by striking the college expense provision.

 

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

 

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