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

Proposed bills before the legislator currently range in topics from taxes and zoning issues to memorializing state representatives. Several bills relate to family law topics, and I have compiled a sampling below. You can find the complete 2008 House Proposed Introduction List online.

Divorce: House Bill 1280 proposes to remove what is now called divorce by irreconcilable differences and replace it with divorce based on mutual consent. The most important thing to note about this change is the requirement that if a person seeks a divorce and has also filed a restraining order they must proceed on fault grounds in the divorce. The problem with this bill is that some divorces are not by mutual consent, although there are no fault grounds just simply that the parties from the perspective of at least one spouse cannot get along. Additionally, forcing a person to seek a divorce based on fault grounds is a bad idea. While fault grounds are certainly appropriate in some instances, they are not appropriate in all instances where the fault may exist as it can inflame a situation and lead to unnecessary, protracted litigation.

Parental Notification: House Bill 1495 restores the parental notification law for a pregnant minor seeking an abortion and adds a medical emergency exception to such law. The bill also affords the minor 24-hour access to a judge for waiver of notification. This legislation follows up the protracted battle about New Hampshire's previous law about this matter. In 2003, New Hampshire passed a parental notification law that did not have a medical emergency exception. Litigation ensued and the United States Supreme Court ruled in Ayotte v. Planned Parenthood that the law was unconstitutional without a medical emergency exception. This bill reinstates the parental notification with a medical emergency exception.

Civil Unions: House Bill 1415 proposes that a marriage entered into by two persons of the same sex shall not be recognized as a civil union in New Hampshire. As with some other bills listed here, this is a bad idea. Currently, same-sex marriages entered into in other jurisdictions are recognized as a civil union and the spouses have the same rights as a civil union, such as seeking a dissolution of the relationship. Passing this bill would leave families in legal limbo without the ability to dissolve their relationship without first entering into a civil union.

Parenting Rights: CACR23 is a proposed constitutional amendment that would read "The State shall not abridge the right, role, or responsibility of parents to control the welfare and education of their children.” This legislation proposes that the amendment be put on the ballot in November 2008 for voters to decide.

Parental Consent: House Bill 1169 proposes that "no human sexuality instruction shall be provided to a pupil without the written consent of the pupil’s parent or guardian."

Religious Training; House Bill 1184  proposes that RSA 169:C, the statute relating to abuse and neglect of a child, require the court to make provisions for the child to continue any religious practice's of the child's family if the child is placed outside of the home. These practices can include any related education, dietary requirements, and medical treatment, except if those practices present an imminent threat to the child. Additionally, the bill proposes that no child who is in state custody shall be denied religious freedom.

Parenting Rights: House Bill 1188 proposes that the court be allowed to modify an order for parental rights and responsibilities every three years without the need to show a substantial change in circumstances. This proposed change in the law is just a bad idea. A child should have stability and permanency, unless there is a substantial change in the circumstances that require residency to be modified for the child's best interests. This bill only encourages litigation and would clog the courts with new cases.

Parenting Rights: House Bill 1189 relates to developing and enforcing parenting plans in highly acrimonious cases. The bill dictates that the court may not consider the degree of acrimony between parents to determine the parenting schedule. Parental acrimony may only be used by the court to determine whether the exchanges should be supervised. However, the bill does allow the court to order an evaluation by a neutral third party to determine who is the primary cause of the acrimony and issue orders accordingly.

Child Abduction: House Bill 1383 proposes that  New Hampshire adopt the Uniform Child Abduction Prevention Act. This act allows a court to take certain abduction prevention measures in a child-custody proceeding if the court finds that the there is a credible risk of abduction of the child." The act is quite lengthy, and provides great detail such as the factors the court may use to assess whether a credible threat exists and measures that the court may take under the act.

If you feel strongly about any of the proposed laws, contact your legislator. You can find  your legislator on the NH House of Representatives website. 

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Today the Massachusetts Supreme Judicial Court issued an opinion in the case of Charron v. Amaral that held that marriage benefits for same-sex couples do not apply retroactively to the Goodridge v. Department of Public Health  decision.

The case involves a couple, Michelle Charron and Cynthia Kalish, who began dating in 1990, moved in together in 1992 and subsequently bought a house together and had a child that both partners adopted. The couple also exchanged rings in a private ceremony in 1994 and obtained a marriage license in 2004 on the first day such licenses were available to same-sex couples. Charron sought treatment for a lump in her breast in 2002, was diagnosed with breast cancer in 2003 and died in 2006. The claim arose as a malpractice case for loss of consortium.

The plaintiffs argued that, but for the ban on gay marriage, they would have been married at the time the malpractice claim arose in 2002, and therefore the loss of consortium claim should be applied retroactive to the Goodridge decision. The SJC disagreed, and held that it was clear that Goodridge was intended to apply prospectively because it was such a radical change in the law that it required time for the legislature to act. Furthermore, the court found that:

to allow Kalish to recover for a loss of consortium if she can prove she would have been married but for the ban on same-sex marriage could open numbers of cases in all areas of law to the same argument.

Although this case involves a malpractice/loss of consortium claim, the opinion has ramifications for divorce matters in Massachusetts. It is likely that, as a result of the Charron decision, same-sex couples who are divorcing will be barred from arguing that but for the ban on same-sex marriage, the couple would have had a long term marriage retroactive to Goodridge. The difference between a long term marriage and a short term marriage can have ramifications on the property division and alimony awards.

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Alimony, also called maintenance or spousal support, is payments made to a spouse or former spouse under a court order. Alimony in New Hampshire is "rehabilitative' and is based on the theory that both spouse should be able to provide for their own financial needs. Therefore, when alimony is awarded, it is designed to encourage the supported spouse to establish an independent source of income. However, the New Hampshire Supreme Court has ruled  that this theory is not controlling when the alimony recipient "suffers from ill health and is not capable of establishing an individual source of income, or where the supported spouse in a long-term marriage lacks the requisite job skills to independently approximate the standard of living established during the marriage."

In order to award alimony, the court must find that the supported party lacks sufficient income, property, or both to meet their reasonable needs and be self-supporting and that the paying party can provide for their own reasonable needs and those of the other spouse. The court should also consider the style of living to which the parties have become accustomed during the marriage in determining their reasonable needs.

How much will the court award in alimony? The court relies on several factors to determine the amount of alimony to be awarded, including:

•  the length of the marriage;
• the age, health, social or economic status, occupation, amount and sources of income, the property awarded in the divorce decree, vocational skills, employability, estate, liabilities, and needs of each of the parties;
• the opportunity of each for future acquisition of capital assets and income;
• the fault of either party;
• the federal tax consequences of the divorce order. 
• the economic contribution of each party to the value of their respective estates
• the non-economic contributions to the family unit.

To read New Hampshire's law on alimony, click here.

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Today the California Supreme Court struck down the state’s ban on same-sex marriage in a 4-3 ruling. The court’s ruling stated that “the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes.” Instead, the question the Court answered was whether the failure to designate the official relationship of same-sex couples as marriage instead of the state recognized domestic partnership violates the California Constitution. The Court found that it did.

The decision and its dissents is 172 pages, so there is a lot to digest. I will post more after I have been able to  read through it in full. In the meantime, to read the opinion yourself, you can find it here. There are also posts through the blogosphere today on the issue, including here at Steven Ballard's Massachusetts Divorce & Family Law Blog, here at Family Law Prof Blog, and here at Jeffrey Lalloway's California Divorce and Family Law Blog.

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As tax season is now behind us, many same-sex couples may have discovered that same-sex couples often pay higher taxes because they are not entitled to federal tax benefits regularly given to married couples. Additionally, same-sex couples must file separate federal returns and in most states, separate state returns. States that recognize civil unions or marriage for same-sex couples, such as Massachusetts, may file joint state returns. Here in the Live Free or Die state where we do not have an income tax, couples do not file state tax returns. 

Kevin R. McMurdy's recent post on Tax Implications and Civil Unions on the Employee Benefits Law Blog reviews various tax implications and employee benefits for same-sex couples.

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A civil union is a domestic relationship that provides state-based legal rights, responsibilities and benefits to couples of the same sex. On January 1, 2008, New Hampshire became the fourth state enact laws that recognize civil unions. A civil union entitles the parties to “all the rights and subject to all the obligations and responsibilities provided for in state law that apply to parties who are joined together [in a marriage] pursuant to RSA 457." Some of these rights and obligations include:
· inheritance rights and intestate succession;
· wills, survivorships, or other incidents of the acquisition;
· access to courts under family and divorce law;
· health and auto insurance benefits;
· state family medical and bereavement leave benefits;
· protection against discrimination based on marital status;
· medical decision making powers and hospital visitation rights;
· workers’ compensation dependency benefits;
· standing for wrongful death and loss of consortium claims
· crime victims’ rights;
· marital privileges in court proceedings; and
· vital records

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