The United States Supreme Court issued an opinion on January 26, 2009 for Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, a rare family-law related case heard by the Court. This case is an important reminder to all parties in a divorce action to change your beneficiaries in your retirement plans and life insurance policies after your divorce has been finalized, or your ex-spouse could inherit the funds.

William Kennedy participated in his employer DuPont’s savings and investment plan (SIP) which is covered under the Employment Retirement Income Security Act. ERISA is a federal law that sets minimum standards for most private industry pension plans. This plan gave William the power to both designate a beneficiary to receive the funds upon his death and to replace or revoke that designation. If there is no surviving spouse or designated beneficiary at the time of death then the distribution of funds goes directly to the estate’s executor or administrator.

Upon William’s marriage to Liv, William designated Liv as his SIP beneficiary but did not name a contingent beneficiary. When the couple divorced some years later the divorce decree divested Liv of her interest in William’s SIP benefits.  However, the decree did not call for the execution of a Qualified Domestic Relations Order (QDRO) which would have been one way under ERISA to address the elimination of a spouse’s interest in plan benefits. In addition, William did not execute any documents with his SIP removing Liv as the beneficiary. Nor did Liv follow the SIP’s specific method for disclaiming her interest.

When William died his daughter Kari was named executrix of his estate. Kari asked DuPont to distribute the SIP funds to William’s estate. However, DuPont relied on William’s designation form and paid the funds to Liv. Kari, as executrix of William’s estate, filed suit arguing that Liv had waived her SIP benefits in the divorce and therefore DuPont had violated ERISA by paying the distribution to Liv.

The district court held that the SIP funds should be awarded to William’s estate. However, the court of appeals reversed that decision by holding that while the divorce decree purported to divest Liv of her interest it was not a QDRO and therefore under ERISA it could not be used to waive Liv’s interest. Therefore, the funds were properly distributed to Liv as designated by the plan documents William executed naming her as beneficiary.

The Supreme Court agreed with the court of appeals and held that DuPont had a duty under ERISA to follow the SIP participant’s beneficiary designation even if the waiver incorporated into the divorce decree was conflicting. The incorporated waiver did not amount to a QDRO and the SIP is bound by the plan documents. Therefore, Dupont properly distributed the pension benefits to Liv pursuant to the beneficiary designation form and despite the divorce decree waiver.

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

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.

 

The Goffstown Family Division has opened in the new courthouse located at 329 Mast Road, Goffstown, New Hampshire. The Goffstown Family Division is the first Hillsborough County location to open, with Jaffrey/Peterborough and Manchester to follow later this year.  The court will serve the towns of Francetown, Goffstown, New Boston and Weare and Judge Paul Lawrence is the presiding justice.

The Family Division courts have subject matter jurisdiction over a range of cases in family matters listed in RSA 490-D:2. The family division hears actions for divorce, legal separation, civil union dissolution, parenting, domestic violence protection, delinquency, CHINS, abuse/neglect, termination of parental rights, guardianship of minors, and adoption actions which relate to any of the following: abuse/neglect, guardianship, or termination of parental rights proceedings.

Check the Family Division website to find out where your case will be filed.

The end of January in New England can bring about a bit of cabin fever. More than ever, if you are a parent who has supervised parenting time or visits in the community, finding fun, indoor activities that do not break the bank can be a difficult task. Even for those parents without visitation restrictions, getting out of the house during the winter on a budget can take some planning. Here are some ideas to help keep the cabin fever at bay.

Local Library: Your local library can be a great resource for fun, free programs. With a library card, you can also often obtain free passes to local museums. And of course, the library has lots and lots of books to read together as a family.

 

·         Manchester Public Library

·         Concord Public Library

·         Nashua Public Library

·         Portsmouth Public Library

·         Keene Public Library

·         Database of New Hampshire’s over 230 libraries

 

Manchester Boston Regional Airport: Kids love airplanes, and luckily you do not have to buy a plane ticket for your children to enjoy them. Manchester Boston Regional Airport has an observation deck that is the perfect place to watch the planes land and take off together. Additionally, on the airport grounds is a free aviation museum in an old 1937 airport terminal.

 

·         Manchester Boston Regional Airport

·         New Hampshire Aviation Museum  

 

Local Museums: Although most museums in the area charge an admission, many often have a free family event/night. For example, although The Children’s Museum of New Hampshire charges a $7 admission, the museum is hosting a Free Family Fun Night on Friday, February 6, 2009 from 5:30 p.m. to 8:00 p.m. Check with your local museums about their free or discounted activities.

 

·         Currier Museum of Art, Manchester, NH

·         Enfield Shaker Museum, Enfield, NH

·         Kaleidoscope Children’s Museum, Concord, NH

·         The Children’s Museum of New Hampshire, Dover, NH

·         Strawberry Banke, Portsmouth, NH

·         Millyard Museum, Manchester, NH

·         Wright Musuem, Wolfeboro, NH

 

Indoor Play Places: There are several indoor play places through the state that don’t cost a thing. The Mall of New Hampshire recently installed a new, enclosed playground in the food court with slides and puzzles. Chuck-E-Cheese’s is admission free, and has great skytubes and play areas for kids to run and jump. And of course, McDonald’s and other fast food restaurants offer play places for kids to let loose.

For litigants and practitioners in the Hillsborough North Superior Court, the following notice has been posted by the court:

Due to a plumbing emergency, the clerk’s office at Hillsborough County Superior Court North in Manchester today is accepting pleadings and addressing emergency matters only. Court proceedings and hearings are going forward as scheduled. The clerk’s office expects to return to a normal schedule by Thursday January 15, 2009. 

Address any questions to Superior Court clerk John Safford at 669-7410.
 

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.

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.

Attorney Steven Ballard’s Massachusetts Divorce & Family Law Blog gave a recent shout out to Wicked Local Parents, an online parenting resource that also publishes a free monthly parenting magazine called P&K. Wicked Local Parents is filled with great content, with ideas for family fun to a wide array of parenting advice columns. You can also pick up your free copy of P&K in several locations through Massachusetts.

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.  

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.