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

The divorce is finally over, and it is time to move on. There are still some loose ends to tie up though, even after the divorce decree has issued. Not every item may apply to your case, but here are the most common things that should be on a newly single person's to-do list. 

1. Update your life insurance and retirement account beneficiaries
2. Prepare a new will
3. Execute a quitclaim deed and record it at the registry of deeds to transfer the title of the house
4. Draft a QDRO, submit it to the court for approval and provide the order to the plan administrator
5. Resume your maiden name, and obtain a new social security card, driver’s license and debit and credit cards
6. Complete required paperwork to implement child support orders
7. Change your vehicle titles
8. Close all joint bank and credit card accounts
9. Make sure that COBRA benefits are in place and the necessary paperwork has been completed
10. Exchange personal property awarded to you or your former spouse

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A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

 

Family Division Rule 1.25-A applies to all new actions in the family division for:

 

·         divorce

·         legal separation

·         annulment

·         civil union dissolution

 

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

 

·         parenting petitions

·         child support petitions

·         petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

 

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

 

The rule obligates each party to provide the following documents to the other party:

 

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

 

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

 

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

 

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

 

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

 

i. The party,

ii. The party's spouse, and

iii. The party's dependent child(ren).

 

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

 

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

 

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).

 

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

 

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

 

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

 

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

 

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Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.  

Pending Legislation

 

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

• HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.

• HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.

•  HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.  

 

Impeachment of Master Cross

 

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

 

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration."  The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

 

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

 

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

 

State Budget

 

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

 

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

 

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

 

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

 

Please write to Governor Lynch, and tell him how his proposed budget affects your family.

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On January 1, 2011, two pieces of legislation will go into effect modifying some aspects of the child support guidelines.

Allowable daycare expenses

 

The child support guidelines allow for a credit to a parent who pays daycare expenses that are “work-related”. Currently, allowable daycare expenses are capped at up to no more than an annual total of $5,000 for one child, $9,000 for 2 children, and $12,000 for 3 or more children. For one child, the cap translates to about $416 per month. HB 1993 expands the definition of “work-related” to include daycare required for a parent’s education and training. In addition, the new law will remove the cap on allowable expenses, allowing a parent to claim all work-related daycare in the guidelines calculations.

 

Self-support reserve

 

Child support orders require that the obligor be left with a self-support reserve, i.e. a sum of money that the obligor will have to support him or her before paying out child support. Currently, the self-support reserve is $903 per month. On January 1, 2010, HB 1216 increases the self-support reserve to $1,038 per month.

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In New Hampshire, more and more parents share joint residential responsibility for children, sharing equally in the parenting time. Many people may assume that if parents share equally in the time with the children, then they will have equal expenses and therefore neither party would pay child support to the other. However, the general philosophy of the court system says not so fast. The law holds that equal parenting time in and of itself will not negate the obligation for child support. If two parents earn substantially different incomes, then the parent with the higher income is often ordered to pay child support to the other parent.

For example, John and Jane are divorcing. They have two children, and will share time with the children in a week on/week off schedule. John is a mechanic who earns $50,000 per year. Jane is a teacher’s aide, and earns $25,000 per year. The New Hampshire Child Support Guidelines, if John were the obligor (person paying the child support) would require child support in the amount of $1,051 per month. If Jane were the obligor, the guidelines would require her to pay $571 in child support per month. Often, a court will look at the difference between those to figures, in this case $480, and order the parent with the higher salary to pay that figure as child support to the other parent. Here, John’s child support liability is probably between $450 and $750 per month, depending on other factors like property division, debt, expenses for the children and alimony.

The statutory frame work for the child support guidelines, and adjustments to those guidelines, can be found at RSA 458-C. The court will consider the following specific factors in making an order for child support:

·         Whether, in cases of equal or approximately equal residential responsibility, the parties have agreed to the specific apportionment of variable expenses for the children, including but not limited to education, school supplies, day care, after school, vacation and summer care, extracurricular activities, clothing, health insurance costs and uninsured health costs, and other child-related expenses.

·         Whether the obligor parent has established that the equal or approximately equal residential responsibility will result in a reduction of any of the fixed costs of child rearing incurred by the obligee parent.

·         Whether the income of the lower earning parent enables that parent to meet the costs of child rearing in a similar or approximately equal style to that of the other parent.

If you are involved in a child support case, it is important to get the facts and information that you need for your case. Often, that means hiring an experienced and knowledgeable attorney to represent you in court. Please consider contacting Crusco Law Office, PLLC to explore your options for representation.

 

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Once a child support order has been approved by the court the modification statute, NH RSA 458- C:7, allows for a petition to modify the child support order after three (3) years have passed. If one party petitions for a modification before the three year mark they must show a substantial change in circumstances that makes continuing the original order improper and unfair.

The NH supreme court released an opinion on In the Matter of Lynn and Lynn on April 24, 2009 which deals with the substantial change in circumstances standard. In this case, when the Mother and Father got divorced, two children began residing with Father and one child with Mother. Mother became obligated to pay child support at a rate that deviated from the guidelines due to her limited income. Less than 3 years later, Mother petitioned to modify her child support obligation because she had been accepted to nursing school and was going to have to work part-time. The court granted the modification and ceased all obligations to pay child support.

The trial court specifically found that the Mother’s income while in school was a substantial change in circumstances and that even though the Mother is voluntarily underemployed it is only one factor to consider whether or not modification is warranted.

The Father appealed the decision to discontinue child support. The Father argued that by choosing to go to nursing school the Mother was voluntarily underemployed and therefore she should still be required to pay the child support. The NH Supreme Court held that the trial court followed the statute and therefore the trial court did not err in modifying the child support.

However, the court warned that this particular case is not meant to imply that a parent is entitled to reduced child support obligation whenever the parent has voluntarily reduced his/her income to attend school. The court mused that there could be circumstances when a parent goes back to school voluntarily and even with decreased income they must still pay the initial child support amount.

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

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During a divorce, the tax consquences of a settlement often take a backseat to heated issues such as parenting rights and asset division. However, tax consquences can have a very big impact on the outcome of a case and are an important factor to consider.  Attorney Jason C. Brown of Brown Law Offices, P.A. posted an informative piece on his Minnesota Divorce and Family Law Blog with tax tips for divorcing couples. Attorney Brown suggested the following issues to consider during a divorce:

1. Child Support. Child support is not income to the recipient and is not deductible for the payer. Keep this in mind if your spouse is seeking alimony. Child support payments that they receive are not taxable and, as a result, increase their net income each month dollar for dollar. As a result, the "need" of your spouse will be diminished and you may be able to argue that their imputed gross income exceeds their gross pay coupled with untaxed child support.
2. Alimony. Alimony is income to the recipient and is deductible for the payer. High income earners can reduce their taxable income by paying alimony. If your spouse's tax bracket is low, the government winds up picking up the tab for a good share of the alimony obligation.
3. Sale of Homestead. The sale of the marital homestead usually does not involve a taxable event. Capital gains (up to $500,000) from the sale of your marital homestead are not taxable if you've lived there for two of the last five years. Nor is a transfer of title to the residence, allowing your spouse to keep some or all of the equity. Many couples opt to forego alimony payments in, instead, pay a disproportionate property settlement to their spouse. In other words, they "buy off" alimony by giving a larger share of home sale proceeds, or equity, to their spouse. The result? No tax implications for either. Ideal for alimony recipients in a high tax bracket.
4. Filing Status. The status of your marriage on December 31 of the relevant year determines whether you file as single or married. If you are divorced by that date, you file as single for the entire year. If your case appears to be coming to a close near the end of the year, best to speak with a tax preparer about the consequence of holding up at bit or expediting matters. We find that courts are usually willing to facilitate bringing matters to a close by the end of the year if tax implications in doing so are substantial.
5. Dependents. While the law provides that the custodial parent is entitled to claim the relevant dependency exemptions, most couples agree to share them. Offering a non-custodial parent the right to claim the dependency exemption under the condition that their child support is current at the end of the relevant tax year provides them with incentive to keep current with payments.
6. Child Care Credit. Custodial parents who incur work-related child care costs can deduct up to 30% of the cost. It is for that reason that the child support guidelines usually require a custodial parent to assume responsibility for a greater share of daycare expense.
7. Liabilities and Refunds. Taxes owed, or refunds received, are usually treated as "marital" and are, therefore, split equally among the parties. In the heat of the moment, some spouses will intercept a tax refund and cash it without the other's knowledge. All funds must be accounted for and it is likely that if they do so their share of the final property settlement will be reduced proportionately. Because income is "marital," a tax liability is a shared responsibility.
8. Attorney Fees. Any fees paid to a lawyer for tax advice are deductible. Ask your attorney for to break out all billable time devoted to tax issues and you can save big.

A good family law attorney will point out these and other issues to consider during your divorce. It is also important to discuss your divorce and the tax consquences of any settlement with a knowledgeable accountant.

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Until today, I had never considered child support enforcement as an election issue, especially with all the hot topics in this year's presidential election. Usually issues such as the economy and the war in Iraq get all the press. However, I read a very interesting blog post from Attorney Stephen Worrall on his Georgia Family Law Blog titled Presidential Election 2008: About Child Support that discusses child support and enforcement issues in the election. Although family law matters are usually dealt with on a state level, there are family issues such as child support enforcement or abuse and neglect of a child that the federal government addresses on a national level.  Knowing where each candidate stands on these kind of issues can be an important part of the decision making process.

John McCain does not have child support issues listed on his campaign or Senate website, nor has he introduced legislation regarding it. However, Senator McCain does have a lenghty voting history compiled by Attorney Worrall.

In 1988 he voted in favor of the 1988 Family Support Act, which required each state to build a single, automated system for child support collection and distribution. Eight years later he supported further changes to the child support infrastructure, which were folded into the 1996 bill that overhauled welfare. The bill pressed automation requirements further, expanded states’ authority to establish paternity and toughened enforcement measures.      

McCain also was in the Senate when it passed the 1998 Child Support Performance Incentive Act with unanimous consent. It established five benchmarks for good performance on child support enforcement that states needed to meet to qualify for additional federal funding.

Barack Obama has included child support enforcement in his campaign platform and has directly spoken about issues such as responsible fatherhood. Attorney Worrall discusses a recent bill introduced by Senator Obama regarding child support enforcement:

The Responsible Fatherhood and Healthy Family Act, is sponsored by Obama and Democratic Sen. Evan Bayh of Indiana. In addition to restoring funding, it includes provisions to promote fatherhood and healthy parenting and bars states from treating imprisonment as “voluntary unemployment.” It also ensures all collections go to families, rather than to reimburse the state for money spent on welfare payments to the custodial parent and child.

 

 

 

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The NH Supreme Court released an opinion on August 21, 2008 In the Matter of Joanne Fontaine and Calvin Dunn holding that a parent who is physically or mentally incapacitated cannot be found to be voluntarily unemployed or underemployed and have income imputed to them for the purposes of child support.

The parties, who never married, are the parents of twin daughters. In 2001, the father suffered from a self-inflicted gunshot wound in the face which caused significant injury and several surgeries over the course of many years. In 2005, the mother filed a parenting and child support petition.

The trial court found that the father was physically incapacitated and was therefore limited as to the income he could earn. However, the court decided that his incapacity was caused by his own voluntary act and therefore ordered him to pay child support in an amount reflective of his past earnings. The father appealed, arguing that the ruling was contrary to the plain language of NH RSA 458-C:2, IV(a)

 

RSA 458-C:2, IV(a) states:   

 

The court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

 

Usually, this statute is applied in situations where a child support obligor is voluntarily unemployed or has taken a lower paying job for the purposes of lowering his or her child support obligation. For example, the nurse who takes a job delivering pizzas instead of a nursing position is not employing herself consistent with her earning capacity. The court would likely order the nurse to pay child support based upon her former earnings as a nurse, instead of her income delivering pizza.  

 

Here, the Court held that the plain language of the statute requires the trial court to find that a parent is not incapacitated before reaching the issue of voluntary underemployment. Therefore, the trial court erred in making a finding that the father was incapacitated and then ordering him to pay child support consistent with his earnings prior to his incapacity. Pursuant to the plain language of the statute and this Court’s holding in this case, once a court finds that a party is incapacitated, the analysis stops there and the court cannot find voluntary unemployment or underemployment.

 

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

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I read an interesting blog post today from Attorney Shannon Cavers of the Houston Texas Divorce & Family Law Attorney Blog. The blog reviews the buyer beware issues of do-it-yourself divorce kits. Attorney Cavers warns: "If you received a medical diagnosis requiring surgical intervention, you would not opt to operate on yourself. The same holds true in law."

Just this morning in the 311^th District Court of Harris County, I personally witnessed a pro se litigant present a final decree of divorce. The source of the litigant’s forms were RapidLaw, an internet site offering divorce, adoption, and bankruptcy services across the U.S. 

The family law judges and court staff in Harris County bend over backwards to assist pro se litigants. However, they may not give legal advice to pro se parties. The forms were not prepared to properly dispense with the parties’ 401-K and retirement benefits. Apparently, the documents were insufficient enough to spur the judge urge the litigant to reconsider presentation of the decree as-is. The Judge asked the pro se party where she received the forms. Her response was Rapid Law. The Judge next asked the party if she paid for the forms, and she answered yes. Finally, the Judge directed the bailiff to photocopy the instructions from RapidLaw – presumably to present the information to the State Bar of Texas.

Whether you are downloading forms from one of the myriad of websites offering divorce documents or buying a kit from Barnes & Noble, the consumer should beware that a generic form usually cannot adequately address your unique situation within the confines of your state's specific rules and laws.

If you cannot afford an attorney, consider the following alternatives: 1) Hire an attorney for unbundled services to review or prepare documents for your case; 2) Utilize the New Hampshire Judicial Branch's self-help center for forms and information; or, 3) Call the New Hampshire Bar Association's law line held on the second Wednesday of each month from 6:00 p.m. to 8:00 p.m. at 800-868-1212.

 

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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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