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

In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

Crusco Law Office, PLLC law clerk Dan McLaughlin contributed to this post.

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Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

 

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.  

           

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For the next three months, the 2009 tax season is upon us. For divorcing couples, whether to file separately or jointly, who will claim the children and how to address alimony can add even more stress to the divorce and to tax season. However, Attorney Nancy Van Tine of the Massachusets Divorce Law Montior offers these five simple tax tips:

• Child support is not tax deductible. If you pay the child support, you pay the taxes.
• Alimony is tax deductible to the payor, and taxable to the payee.
• Property settlement, or property transfers, pursuant to a divorce decree are not taxable. However, as Attorney Van Tine points out, this is only true for opposite sex marriages. Same sex marraiges have different rules as Attorney Van Tine blogged about here.
• Transfers of pensions can be transferred without any tax consquences through a Qualified Domestic Relations Order (again, only if your are in a opposite sex marriage).
• The IRS has five tips for recently married or divorce taxpayers regading name changes.  

I would add to Attorney Van Tine's list these tips:

•  If you do not have a court order regarding the child tax credit, then you must follow the IRS rules. Specifically, the parent who has residential responsiblity and parenting time more than 50% of the time is entitled to claim the child.
• If your divorce decree has not been issued prior to December 31st, you may file jointly or separately. However, if your divorce is final by December 31st, you cannot file jointly. Take a look at IRS Publication 504 for more information.

 

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Unless you have been living under a rock the last few weeks, you have come across the Tiger Woods story. The car crash, the rumors of domestic violence, and, of course, the cheating. According to reports, Elin discovered the affair by going through Tiger's phone records. Jaimee Grubbs, one of Tiger's many mistresses, has come forward with more than 300 flirty, steamy text messages as evidence of the affair. As smartly phrased by Laura Holson of the New York Times, text messages are the new digital lipstick on the collar.

Tiger is not the only person of notoriety to be caught by a text message. Detroit's former major, Kwame Kilpatrick, went to jail after lying about an affair with an aide and then having sexually explicit test messages surface. Senator John Ensign was caught having an affair when his mistresses husband, who was also his aide, found text messages on Senator Ensign's phone. And the list goes on and  on.

Otherwise intelligent men and women seem to believe that the digital evidence of their trysts disappear into the ether with their texts, never to be seen again. That is, until your spouse or her attorney dig it up. Daniel Clement, of the New York Divorce Report writes:

In the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

So, especially in the State of New Hampshire where divorcing spouses may plead fault grounds, sexters beware! Evidence of infidelity in the digital age is easy to find, and divorce attorneys know where to look. The evidence will most likely come to light before or during your divorce. If you do not want to be caught, refrain from the affair.

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I was reading a blog post today by photographer Samantha Warren at Samantha Warren Weddings in which she mused on a tweet by Dita Von Teese that pondered "Did you all know that I only tell you the fun & glamorous things that I do, not the boring & unpleasant things?"  Sam writes in response:

Ms. Teese's tweet summed up one of the significant snags I see with social media, and that is that while you may put your life out there through Facebook, Twitter and blogging, it's life filtered, often for a particular purpose. In musical terms, while social media claims to be a jam session, the control we have over our image through its technology makes it a best of collection.

So true! Most of us using social media from Facebook to Twitter chat and tweet about the happy goings on from our beach vacations to a new job.  However, mix a stressful divorce or parenting rights and responsibilities matter with social media and our emotions can often get the best of us. Instead of the happy face usually broadcast to the world, the anger and hurt rises up and reaches out through our fingertips, sendind out status updates or tweets best kept to ourselves.

Time Magazine's recent article, Facebook and Divorce: Airing the Dirty Laundry, warns domestic relations litigants over the dangers of social media during litigation. Post a picture of your new BMW motorcycle after claiming the poorhouse? Tweeting about your crazy Saturday night party when you were supposed to be caring for the children? Updating your status about your date night with your new girlfriend, before you have separated from your wife? While you are posting about these things, opposing counsel is downloading your personal information from Facebook and Twitter and preparing to use it in court.

The moral of the story? Think before you post. Refrain from commenting about your spouse, his lawyer, the judge, the guardian ad litem. Do not post pictures of any content that can be used against you in court, including partying, gifts to or from new signifcant others or places you should not be. You'll be better off for it, and your lawyer will thank you.

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With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

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Following up on my post earlier this week regarding the New Hampshire Supreme Court's recent decision in Guy, the Union Leader published an article titled "Email fall short for fault-based divorce." The article includes interesting statistics on divorce in New Hampshire based on records from the New Hampshire Division of Vital Statistics Records Administration that shows that 98% of divorces are granted for "no-fault."

	2000	2004	2008
Total Divorces	5,970	5,106	4,913
Irreconcilable Differences	5,920	5,042	4,847
Adultery	26	19	27
Extreme Cruelty	7	9	9
Abandonment	2	1	10

 

 

 

 

As the statistics show, most cases are based on "no-fault" or irreconcilable differences. In 2008, out of 4,913 divorces, only 66 were based on fault grounds (the top three being adultery, extreme cruelty, abandonment). One cause of the low rate of fault ground divorces is that most cases settle before trial and the parties agree to divorce based on irreconcilable differences. 

Additionally, even where fault grounds exist, some parties choose not to pursue them for several factors. Alleging fault grounds can dramatically increase the cost, length, and stress involved in a divorce. When deciding whether to file for fault grounds, it is important to consider the reason for seeking the fault grounds, what the fault grounds will accomplish and whether it will damage a co-parenting relationship.

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The New Hampshire Supreme Court recently held In the Matter of Joni Guy and Daniel Guy on March 5, 2009 that in order to prove a fault-based divorce for endangering health or reason, the innocent spouse must prove that there has been more than just hurt feelings and anger. This holding raises the standard and makes this type of fault based divorce much harder to prove.  

Joni filed for divorce citing the fault grounds (NH RSA 458:7 ) of conduct endangering her health and reason, adultery, and habitual drunkenness. Alternatively, she sought a divorce on the ground of irreconcilable differences. (458:7-a. ) The trial court dismissed the grounds of habitual drunkenness and adultery but granted Joni the divorce on the fault grounds of conduct endangering Joni’s health and reason. The exact language of 458:7(V) is: When either party has so treated the other as seriously to injure health or endanger reason. Daniel appealed the final divorce decree based arguing that the trial court had made an error by granting Joni the fault based divorce.

 

The NH Supreme Court examined the meaning and standard of conduct that would be considered to injure an innocent spouse’s health and endanger their reason. The court determined that any behavior of one party which affects the other physically or mentally is treatment within the meaning of the statute. The opinion goes on to state that while the statute does not require proof of conduct that would have affected an average reasonable person, it does require proof that the health or reason of the complaining spouse was actually affected.  

 

The court scrutinized the conduct that Joni alleged caused her injury to her health and reason. Joni alleged that e-mails between Daniel and a former girlfriend which spoke of their love for each other and were sexually suggestive caused her to feel  “angry, upset and distraught”.

 

The court determined that this type of conduct is insufficient to constitute treatment that arises to the level of seriousness required by the statute. Feeling angry, upset and distraught does not constitute serious injury to one’s health or endangerment to one’s reason. The conduct at issue did not harm Joni’s physical well-being. Nor did it cause her to suffer the type of mental anguish the statute was intended to encompass. Therefore, the court reversed the trial court’s decision and sent the case back  to the trial court for further proceedings.

 

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

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

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

 

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

 

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

 

Joseph appealed that decision to the NH Supreme Court, contending that the family division has no authority to enforce the college education funding obligation because the court lacked subject matter jurisdiction to enter such an order under NH RSA 461-A:14, V. The statute reads: “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.”

 

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

 

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

 

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As Florida family law attorney Christine Bauer points out on her Florida Divorce & Family Law Blog, divorce and family issues have a lot of intersecting areas of law such as real estate, bankruptcy, and immigration. Immigration issues can complicate a divorce, and cause much stress for the dependent spouse about their status in the U.S. Regarding H-4 visas, Attorney Bauer writes:

An H-4 visa is a dependent/spouse Visa that is issued when your spouse has a H-1B Visa. You cannot work with an H-4 visa but you are allowed to remain in the United States with your spouse. The H-4 visa is valid until it expires, and will also terminate when your divorce is finalized. It will remain in effect during your separation period, but upon your final divorce decree, it will terminate. Therefore, you must file paperwork to change your status and request a new visa with a new classification before the finalization of your divorce. If you do not do this, you can possibly be deported or required to leave the country on your own accord.

For more information on immigration issues, the U.S. Citizenship and Immigration Services has an extensive, is somewhat complicated to maneuver, website. Additionally, contacting a knowledgeable immigration attorney can help provide you with information and protect your immigration status through the divorce process.

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Although either parent may apply for their minor child’s U.S. passport, U.S. law requires the signature of both parents, or the child’s legal guardians, prior to the issuance of the passport for a child under the age of 16. Both parents must either appear in person to request the passport, or the non-applying parent may sign a form before a notary public granting permission for the issuance of a passport. Alternatively, the parent applying for the passport must document his/her sole authority to obtain a passport for the child. In order to comply with the law, Passport Services will require evidence of one of the following:

• sole custody
• a court order allowing the parent to travel with the child
• a written statement under penalty of perjury that the other parent agrees to issuance or is unavailable
• a termination of the other parent’s parental rights
• or compelling humanitarian reasons relating to the welfare of the child

Additionally, the law provides two exceptions to the above requirements: (1) for exigent circumstances, such as those involving the health or welfare of the child, or (2) when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.  

For more information, the U.S. Department of State’s website on children and family is a great resource.

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An article in the Boston Globe today exemplified why you should always follow the golden rule when posting on the internet: If you don't have anything nice to say, don't say it all. According to the Boston Globe:

A man accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged with two counts of criminal libel. The The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child. [The man], confronted by detectives at his workplace in August, said he was "just venting," according to court records.

"Just venting" can get you into a lot of trouble, not only with the police as this man found out, but also with the family court. Blogs, status updates and "rants and raves" on Myspace, Facebook and Craigslist often make their way before the court, to the detriment of the posting party. So, however tempting it is to vent to your online pals, don't.  

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Question:

My wife cheated on me and I want to sue her and her new boyfriend for alienation of affections. How do I proceed?

Answer:

An alienation of affection claim is a lawsuit where a spouse sues a third party who is allegedly responsible for the destruction of the marriage. There are three elements that a plaintiff must prove:

1)      The marriage entailed love between the spouses in some degree;

2)      The spousal love was alienated and destroyed; and

3)      Defendant’s willful and malicious conduct contributed to or caused the loss of affection.

However, New Hampshire no longer allows actions for alienation of affection pursuant to NH RSA 460:2 which reads: “No damages shall be allowed to either spouse in any action based on alienation of the affections of the other spouse.” The only states to still allow alienation of affection law suits are: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.

Although New Hampshire does not recognize alienation of affection as a cause of action, New Hampshire is a state that allows fault grounds, such as adultery, in a divorce. Read more here about fault grounds.

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

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On October 8, 2008 the New Hampshire Supreme Court released an opinion for In the Matter of John Salesky and Jacqueline Salesky. The Court held that a guardian, appointed over the person and estate, may maintain a divorce action on behalf of that person with either the express authority of the Probate Court and as an equitable remedy to prevent an incompetent spouse from having no legal recourse to divorce.  

John and Jacqueline were married in 1983. In 2003, after Jacqueline had left to live with her daughter, John suffered a stroke and then named Jacqueline the co-trustee and co-beneficiary of his trust. John also created separate durable powers of attorney for healthcare, property and financial matters which named Jacqueline as his agent.

 

After John’s stroke, Jacqueline began draining and disbursing significant cash assets. John discovered this and at some time after that John and Jacqueline had an altercation where Jacqueline yelled “John, I don’t know what I’m going to do with you, I think I’m going to have to put you in a nursing home”. Sometime in early October 2004, John left Jacqueline and went to live with his brother and sister-in law (the Saleskys).

 

Later in October 2004, John filed a divorce petition on the grounds of irreconcilable differences. Jacqueline objected to this and asked for the petition to be dismissed because John was not mentally competent to bring it. In April 2005 John had a full psychiatric evaluation and the report recommended that John receive assistance in making major decisions regarding his life. After this evaluation, the Saleskys petitioned the probate court to appoint them as co-guardians over John’s person and estate. The court denied Jacqueline’s request to appoint her guardian because the parties’ marital status was in the throes of dissolution and therefore appointing her guardian was a conflict of interest.

 

After a three day divorce trial, the court ultimately granted the petition for divorce stating that the Saleskys as co-guardians had the authority to maintain the action on John’s behalf and that irreconcilable differences caused the irremediable breakdown of their marriage.

On appeal, Jacqueline attacked the co-guardians ability to maintain a divorce action on several grounds:

 

1)      Jacqueline argued that the co-guardians did not have the authority to maintain the divorce action and that the superior court interpreted the probate court’s order to confer implied authority upon the Saleskys to maintain the divorce action.

 

The court determined that the plain meaning of the words used in the probate courts orders expressly granted the Saleskys as co-guardians the right to marry and divorce on John’s behalf. To hold otherwise would mean that both John and the Saleskys lacked the ability to exercise those rights.

 

The court also examined the letter of appointment for the Salesky’s where they are specifically granted “ the authority to exercise all of the rights and powers set forth in RSA 464-A:26, I and II” and under section I, specifically requires the guardians to “prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate’s assets.” Therefore, these documents together expressly conferred the right to divorce to the co-guardians.

 

 

2)      Jacqueline then argued that despite the probate court’s order the Saleskys could not prosecute the divorce action because the statute did not grant them that power.

The court looks at the language of the statute stating that RSA 464-A:25 sets out the general powers and duties of a guardian over a person, and RSA 464-A:26 sets out the general powers and duties of a guardian over an estate.

 

Both statutes include a catchall provision that says: “The court may limit the powers of the guardian… or impose additional duties if it deems such action desirable for the best interest of the ward.

 

The plain meaning of the catchall provisions is that the duties are not exclusive. These provisions expressly give the probate court the authority to impose “additional duties.” The only limit upon the additional duties is that those must be “desirable for the best interests of the ward.”

 

3)      Jacqueline also argued that the legislature could not have reasonably intended, as a matter of public policy, to grant probate courts the authority to allow guardians to maintain divorce petitions.

 

The court examined a number of cases holding a competent spouse would have absolute and final control over the marriage if a guardian could not maintain an action for divorce.  That kind of situation leaves the incompetent spouse without adequate legal recourse against potential abuse. In addition, the court points out that these policy concerns are evident in this case because while Jacqueline had withdrawn substantial funds from John’s accounts while acting under a power of attorney, the Saleskys were merely maintaining a divorce action that John had brought before he was found to be incompetent.

 

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

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After going through the divorce process, for many couples the last thing that they want to do is have regular contact with their ex-spouse. However, for divorcing couples with children, it is extremely important to maintain communication to effectively co-parent your children. Successfully co-parenting means that both parents will maintain an active, stable role in their children's day to day lives and that the children will be happy and healthier for it.

One technique that parents may try is scheduling a weekly parenting phone call. Instead of several phone calls a week that occur at inconvenient times and break down into arguments, focus communication into one business-like phone call per week. Unless there is an emergency, wait to discuss all issues at the parenting call. The parent with the children should make the phone call to insure that the children are out of ear shot, such as after bedtime.

Plan an agenda for the call, including the following topics:

• Discuss the upcoming parenting schedule
• Discuss the children's extracurricular activities and school schedules
• Discuss academic issues such as homework and report cards
• Discuss any behavioral issues
• Discuss any general concerns

 

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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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On August 21, 2008, the New Hampshire Supreme Court released an opinion on In the Matter of Mary Beth Georgakilas and George Georgakilas holding that an approximately equal parenting schedule still entitles one parent to a “primary physical custody” designation.  

The facts of the case are as follows: the parties divorced in 2006 and entered into a permanent stipulation and a parenting plan regarding their son. The parties share joint decision making responsibility (formerly referred to as joint legal custody). The parties also agreed that their parenting time was for approximately equal time and George would have liberal and generous parenting time whenever he was not flying as a commercial airline pilot. In addition, the plan stipulated that for school purposes only, the child’s legal residence was his mother’s home.

 

When the divorce was finalized, the certificate of divorce entered by the court stated that Mary Beth and George had joint legal custody but that Mary Beth had physical custody. George moved to modify the certificate to reflect that the parties had joint physical custody. The trial court denied George’s motion because they interpreted the parenting plan to grant primary residential responsibility to Mary Beth. That because the plan did not state that they shared or had joint residential responsibility, the certificate of divorce correctly complied with the parenting plan and would not be revised. George appealed the ruling to the New Hampshire Supreme Court.

 

The Supreme Court considered the intent of the parties as expressed in their stipulation when deciding this case. Under the plain meaning of the stipulation the parties were to have “equal or approximately equal” residential responsibility of their son. However, the court stated that as a matter of law “approximately equal” is not enough to confer custodial parent status as defined by the statute.

 

RSA 461-A:20 states that: a “custodial parent” is “a parent with 50% or more of the residential responsibility” and a “non-custodial parent” is “a parent with less than 50% of the residential responsibility”. The court determined that a parent with 49% of the residential responsibility is a non-custodial parent by definition.

 

Therefore, because Mary Beth and George chose to use “approximately equal” to describe their responsibilities and George’s absences from New Hampshire due to his job, the court concluded that the trial court did not err when it declined to change certificate of divorce. Unless the parties had agreed to have 50% of the residential responsibility pursuant to 461-A:20, only one of them could be the primary residentially responsible parent.

 

This case boils down to the labels we place upon parenting schedules, whether they be “custody”, “residential responsibility” or “routine schedules.” Often, for a parent the label is very important and that parent wants “sole physical custody” or “joint residential responsibility.” However, what really matters is the schedule itself. Instead of questioning what kind of label has been placed upon the schedule, a parent should focus on whether the schedule allows them ample parenting time and whether the schedule is the most beneficial for their children.

 

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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In 1993 the New Hampshire legislature enacted a law  requiring divorcing couples with minor children or parties in a parenting case to complete a Child Impact Seminar. This seminar, a four hour course, is called “Children First” and addresses the issues of divorce or separation and how they effect the children involved.

As explained on the NH Family Division website, Parents are required to complete the seminar and show the court a certificate of attendance from the program before a divorce decree is issued. The seminar is offered at multiple locations during weekend and evening hours. Parties who do not attend the seminar may be subject to sanctions by the court.

As found on the “Children First” website detailing the course, the seminar discusses several topics, including:

·       Ways to promote self-esteem in your child during this difficult time

·       What you can do to help your children adjust

·       The impact of violence or chronic conflict upon children

·       Behaviors to avoid

·       Helpful communication styles

·       Effective co-parenting skills

·       How to be a role model

·       Alternative dispute resolution

·       Important points to remember

Blog Credit: Marisa Ulloa, Crusco Law Office Law Clerk

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A “First Appearance” occurs in a New Hampshire Family Division court in a divorce involving children or in a parenting petition case. The judge or marital master will talk about the court process, what to expect, and how the parties might settle their issues without litigation. At this time the court may refer individual cases to mediation. Mediation is an alternative process to litigation where a trained neutral third party helps negotiate and resolve disputed issues.

The court will hand out a First Appearance Highlights form that summarizes all of the information given at the First Appearance.

Below are some of the topics covered in a First Appearance:

· Court Process

· Case Management

· Child Impact Program

· Case Manager

· Guardian ad Litem

· Mediation

· Legal Representation

· Parenting Plans

· Child Support

Blog Credit: Marissa L. Ulloa, Crusco Law Office Law Clerk

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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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