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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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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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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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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When a parent paying child support receives social security benefits, whether disability or retirement, those benefits are considered income for the purposes of determining child support. A dependent child of a recipient of social security receives dependent benefits, and the benefits are paid to the custodial parent. These benefits are an integral part of the parent's social security benefits, as they derive from the parents eligibility for the program and his past contributions into the program.

How are these dependency benefits treated for the purposes of child support? The New Hampshire Supreme Court ruled In the Matter of Denise Angley-Cook and John W. Cook that a parent with a child support responsibility is entitled to a dollar for dollar credit for any social security dependency benefits the other parent receives that are derived from their benefits.

Therefore, the Supreme Court held that the support should be calculated as follows:

"the amount of the . . . dependency benefits should be included in the income of the noncustodial parent and the guidelines should then be applied to that amount." Rosenberg, 697 N.E.2d at 991; see also Miller, 890 P.2d at 578. The noncustodial parent is then allowed a credit equal to the amount of the dependency benefits, and the net amount of the noncustodial parent's support obligation is the difference between the support amount determined by the court to be correct under the guidelines minus the amount of the credit. See Rosenberg, 697 N.E.2d at 991. An exception exists if the support amount determined by the court to be correct under the guidelines is less than the dependency benefits. See id. at 991 n.7 "In such case, the total support obligation is simply equal to the amount of the . . . dependency benefits, and the noncustodial parent would not owe any additional amount." Id.

Basically, the calculation boils down to everyone's income goes into the pot, and if the child support amount is less then the dependency benefits, there is no child support due from the obligor parent.

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The New Hampshire Supreme Court released an opinion today In the Matter of Kevin Gendron and Jody Plaistek that held that a voluntary acknowledgement of paternity executed in Massachusetts must be given full faith and credit and that the trial court erred in ordering genetic marker testing. The voluntary acknowledgement of paternity signed by both parents had all ready established the father as the legal father to the child, and therefore there was no need for further proof of paternity to establish parenting rights and responsibilities.

The court noted that it had made similar rulings in Watts v. Watts, which held that a father was precluded from seeking blood tests to disprove his paternity fifteen years after the children's births. In Watts, the court found that to allow the father to escape liability for support by blood tests would ignore his lengthy, voluntary acknowledgement of paternity. Here, the court noted that although the mother was seeking to disprove paternity, the result should not be any different than that in Watts.

Today's opinion should serve as a warning to anyone who voluntarily signs an acknowledgement of paternity. If there are any doubts or questions regarding paternity, seek legal counsel prior to signing the acknowledgment  because it may preclude the ability to reopen the issue of paternity in the future.

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Besides baseball and daffodils, spring is also the time for college financial aid applications. A recent post from Jennifer Weisberg Millner on the NJ Family Legal Blog regarding the responsibility of parents for their children's college expenses highlighted how different laws are from state to state. Although parents in New Jersey may be ordered to pay for their children's college tuition and expenses, in New Hampshire, no court order shall require a parent to pay for educational expenses beyond high school. However, under the NH Supreme Court's decision in Donovan, a court may enforce orders made prior to February 2, 2004 (the date that the law went into effect) that required a parent to to pay for college.

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