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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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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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 is a state that recognizes both fault and no-fault grounds for divorce. The no-fault grounds allege that "irreconcilable differences which have caused the irremediable breakdown of the marriage." In other words, the parties just cannot get along and there is no hope of fixing the marriage.

New Hampshire recognizes the following fault grounds:

• Impotency of either party. 
• Adultery of either party. 
• Extreme cruelty of either party to the other. 
• Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. 
• When either party has so treated the other as seriously to injure health or endanger reason. 
• When either party has been absent two years together, and has not been heard of. 
• When either party is an habitual drunkard, and has been such for 2 years together. 
• When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. 
• When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.

In order to prevail in the divorce on fault grounds, the party alleging the fault must be an "innocent spouse." For example, a party cannot allege that the breakdown of the marriage was caused by the other parties adultery, when that party contributed to the breakdown by being an habitual drunk. Even if a party does not prove fault grounds, they are still entitled to a divorce based upon irreconcilable differences.

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A recent article on CNN highlighted the modern day movement that it called "manimony," where a wife pays alimony to her husband. Historically, alimony derived from the principle that a husband has a duty to support his wife. The ecclesiastical courts in England only recognized judicially approved separations, and so the husband continued to have a duty to support his wife even after a physical separation. Today, that duty to provide support after a legal separation or divorce is gender-blind and the court will award alimony where appropriate, regardless of which spouse pays.

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Once the divorce, either by agreement or court order, becomes final, retirement accounts are often divided by a qualified domestic relations order (commonly called a QDRO) as ordered in the divorce decree. Attorneys must go about drafting the QDRO, getting it approved by the court and the plan, and then have the plan process it. A recent blog by Divorce Law Journal's Diana L. Skaggs warns about plans charging large fees to process QDROs, and even to approve their own sample forms. Attorney Skaggs' is right on the money, so to speak, to advise checking with the Summary Plan Description to determine the fees charged by the plan and who the fee is charged to. Allocating the fee in the divorce decree will save headaches later on when the issue pops us.

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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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An issue to consider when divorcing is how the divorce will affect your ability to get social security benefits through the other spouses records. These issues can be especially important for older divorcing couples who are counting on social security benefits as part of their retirement plans. It is important to consult with your attorney regarding how the divorce may affect your right to receive social security benefits on your spouses record.

Ora Schwartzberg, a New Hampshire attorney and mediator, posted an e-newsletter titled "The Impact of Divorce on Social Security Survivor Benefits" that explains: 

There are two major types of Social Security benefits: retirement benefits and survivor benefits. In general, a divorced spouse who is eligible for survivor benefits would also be eligible for retirement benefits. Retirement benefits are monthly payments that represent a portion of what your former spouse receives monthly and is paid out while your spouse is still living. Survivor benefits are monthly payments that widows and widowers are entitled to when their spouse dies, assuming that the spouse worked long enough to have earned this benefit under the Social Security system.

In order to qualify for retirement benefits, you must have been married for at least 10 years. You can collect retirement benefits on your former spouse's Social Security record if you are at least 62 years old and if your former spouse is entitled to or receiving benefits. Generally, if you remarry, you will not be able to collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment). 

If your divorced spouse dies, you can receive survivor benefits if the marriage lasted 10 years or more. Similar to retirement benefits, you may not be able to collect benefits if you are remarried unless your later marriage ends (whether by death, divorce or annulment). If you are at least 60 years old when you are receiving benefits, the amount of your benefits will not affect the other survivor's benefits amount.

For more information on social security benefits, check out the Social Security Administration's on-line help center here.

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As foreclosures are on the rise, many homeowners are seeking alternatives to protect their credit and move on. One such alternative is a "short sale." A short sale is when the costs of selling the home (i.e. realtor's commission, transfer taxes) and the mortgage payoffs are greater than the proceeds received from the sale. The seller must then either bring funds to the closing to complete the transaction, or work out a deal with their lender to accept less than the amount due on the mortgage.

A recent posting from Barbara Strapp Nielsen on the New Jersey Law Blog titled Short Sales When Loans Exceed the Value of a Home provides insight and analysis on this topic. Attorney Nielsen writes:

Unless a homeowner is able to pay off all of the mortgages which are secured by his property, the homeowner will not be able to convey good title to a buyer.  If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage.  For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan.  This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision.  This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents.  Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS.  This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner.  This was so even though the homeowner received nothing from the sale.  However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007.  This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence.  The amount of the debt forgiveness can be up to $2.0 million.  Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability.   This exemption for forgiven debt, however, is only temporary and expires within three years.

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Reports of the housing crunch are all over the Internet, the newspapers and the television. Here in New Hampshire, foreclosures are on the rise. In 2007, banks foreclosed upon 2,000 New Hampshire property owners, and foreclosures are expected to reach 3,000 for 2008. As of the 2007 fourth quarter, 18,000 New Hampshire loans had past due payments.

What can you expect if you are in the process of divorce and one of the thousands of New Hampshire property owners experiencing trouble making your mortgage payments? The court has jurisdiction under NH RSA 458:16,I (h) to order the sale of the home only if the party residing in home does not have sufficient financial resources to pay the debts and obligations of the property in a timely manner. These debts and obligations include the mortgage payments, taxes, insurance and ordinary maintenance of the home. However, the continuing decline in the housing market can spell trouble for divorcing couples who are trying to stay afloat even when the parties agree to list the home for sale or the court orders the home to be placed on the market. According to the New Hampshire Association of Realtors, home sales in Hillsborough County New Hampshire have dropped 26.8% and the median home price has dropped 7.8%. Although these numbers have not seen as drastic a drop as the national numbers, divorcing couples in New Hampshire need to be prepared to sell at lower prices after a longer stay on the market.

For more information about the current New Hampshire housing market, Laura Knoy recently hosted a program on NH Public Radio that can be found here.

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A guardian ad litem, often referred to as a "GAL," is a person appointed by the court to represent the best interests of an individual. Unlike a guardian, a GAL does not manage the affairs of of persons, nor do they act as their attorney.  

In a divorce or parenting petition proceedings, the GAL is usually appointed to represent the best interests of the children. The court charges the GAL with the responsibility of investigating designated issues and making recommendations to the court. Issues can include parenting responsibility, parenting schedules, ability of either parent, influence of significant others, and special needs of the children. The GAL is a valuable tool for the court since the GAL can gather a lot of information to provide to the court and aid in making a decision regarding parenting rights and responsibilities.

For more information on Guardian ad Litems, the New Hampshire guardian ad litem board has useful information on their site.

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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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A very concerning issue for many people facing divorce is what will happen to the family pet. Currently, the law recognizes pets as property which will be divided in a final divorce decree pursuant to RSA 458:16-a. Property distribution factors were recently discussed here. A court is more likely to permanently award a pet to one of the parties rather than ordering a "shared parenting" arrangement. On the one hand, the law is not able to recognize that pets have strong emotional ties and separation from that pet will be much more detrimental to a family member than the loss of a kitchen table or a television. On the other hand, enforcing a court order with a "shared parenting" schedule and calls for division of vet and doggie daycare expenses could place an additional burden on the all ready over-worked courts.

Attorney Danny Meeks, who publishes the Pet Trust Law Blog, recently wrote about these issues in a posting called  "Is your pet a family member subject to 'shared parenting.'" Attorney Meeks sited interesting pending legislation in Massachusetts that would grant court's the authority to restrain a party from a pet in a temporary domestic violence restraining order.

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New Hampshire law grants courts the authority to order an equitable distribution of property between parties. Although the law presumes that an equal distribution is also an equitable distribution, the court may decide that equitable is not equal when one or more of several factors are present. Some of the factors include the 1) the duration of the marriage, 2) the opportunity of each party for future acquisition of capital assets and income, 3) the need of the custodial parent to occupy or own the marital residence for the benefit of the children, 4) tax consequences of the property settlement, 5) expectations of retirement assets and 6) the fault of either party. The law includes fifteen different factors, including the broad final factor of “any other factor that the court deems relevant.” Click here to read all of the factors listed in the property settlement law.

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