As discussed in a previous blog post, in New Hampshire every parent is required to take the Child Impact Seminar within 45 days of the date that the Respondent (formerly known as Defendant) is served with the divorce or parenting petition. I have received a few e-mails recently asking where to sign up, so I thought I would post the telephone numbers and websites for each local provider here. There is also additional information about the Child Impact Seminar available on the Family Division website.

BELKNAP COUNTY          Laconia 524-1100 Genesis Behavioral Health

CARROLL COUNTY          Conway 447-2111 Carroll County Mental Health Services

Wolfeboro 447-2111 Carroll County Mental Health Services

CHESHIRE COUNTY         Keene 355-3071 Cheshire Mediation

COOS COUNTY                Groveton 636-2555 Northern Human Services

GRAFTON COUNTY          Lebanon 448-0126 West Central Behavioral Health

Littleton 444-5358 Northern Human Services

Plymouth 536-1118 Genesis Behavioral Health

HILLSBOROUGH COUNTY Manchester 628-7787 The Mental Health Center

Nashua 598-7155 x 3900 Community Council of Nashua

MERRIMACK COUNTY      Concord 226-7505- x 3262 Riverbend Parent Child Center

ROCKINGHAM COUNTY    Exeter 431-6703 Seacoast Mental Health Center

Portsmouth 431-6703 Seacoast Mental Health Center

Salem 434-1577 CLM Behavioral Health

STRAFFORD COUNTY      Dover 749-3244 x732 Community Partners

SULLIVAN COUNTY          Claremont 448-0126 West Central Behavioral Health

Newport 448-0126 West Central Behavioral Health

 

 

 

 

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

 

My health insurance coverage is through my spouse’s employer. Will I be able to stay on the health insurance plan after I am divorced?

You may be able to continue coverage through a new law (RSA 415:18, VII b) that became effective on January 1, 2008 that allows a former spouse to continue coverage on the subscriber employee’s group health insurance policy for up to three years following the final decree of divorce. The law applies to both medical and dental coverage. Under the provisions, of the new law, a former spouse remains eligible for coverage until one of the following events occurs, whichever is earliest:

 

1)      Three (3) years from the final decree of divorce or legal separation;

2)      Remarriage of either the covered employee of the former spouse;

3)      Death of the covered employee; or

4)      Such earlier time as provided in the final decree.

 

The former spouse has the right to continue coverage under this law only for so long as the employee subscriber maintains coverage under the same group health insurance plan. If the employee is terminated or leaves employment, the former spouse’s eligibility is not transferrable to the new employer.

 

Unlike COBRA and New Hampshire’s continuation coverage statute which allows additional premiums to be charged, the insurers are required to make the health insurance coverage available without additional premiums as if the divorce had not occurred. This is a key aspect of the law, since often times COBRA premiums are cost prohibitive and unaffordable to the family member who needs to continue coverage. Additionally, the employer is required to continue to contribute to the former spouse’s coverage as if the divorce had not occurred. The court may assign or the parties may agree as to how the employee’s portion of the premiums will be paid, either by the employee, by the former spouse, or shared by the parties.

 

As a caveat, the law applies only to group health insurance policies, and employer plans that are self-insured are not subject to the law’s continuation requirements. Several large private and state and federal government employers, such as Wal-Mart, Fidelity, and the State of New Hampshire, are self-insured and so those with former spouses who work for these self-insured employers will not be able to continue coverage under RSA 458:18, VII.

 

This new law supplements the COBRA benefits and continuing coverage statute that are all ready in place. If a former spouse is not eligible, e.g. remarriage of either party or the court has not allowed coverage under this statute, COBRA benefits may still be available to provide health insurance coverage.  

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.

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

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

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

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

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

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

 

 

 

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.

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

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

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

 

RSA 458-C:2, IV(a) states:   

 

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

 

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

 

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

 

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

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 311th 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.

 

The New Hampshire Supreme Court released the opinion for In the Matter of J.B. and J.G. on August 6, 2008 holding that a man, who is not the biological father of a child, has standing to seek parental rights and responsibilities under the New Hampshire statute.

The facts of the case are as follows: The respondent, J.G., gave birth to a child, A.B., in 2001. The petitioner, J.B., was listed as the father on the birth certificate. In addition both parties executed an Affidavit of Paternity at the time of the child’s birth which stated that J.B. was the father. While the parties had never married and did not live together, J.B. had consistently maintained contact with the A.B. and in 2004 J.G. sought and obtained an order of child support against J.B.

After a disagreement about the A.B.’s schooling, J.B. filed a parenting petition in the family division to establish his parental rights and responsibilities. In response, J.G. alleged that J.B. was not the A.B.’s father. The trial court ordered a paternity test which showed that J.B. was not A.B.’s biological father.

Based on the test results J.G. moved to dismiss J.B.’s petition because he was not the biological father and therefore did not have rights under RSA 461-A and that granting him parental rights would violate her constitutional right as a natural parent. The trial court granted her motion to dismiss and then later reversed which prompted J.G. to file this appeal of that decision.

Therefore, the meat of the opinion is the question of whether J.B. may maintain a parenting petition under the parental rights and responsibilities act, when he is neither a stepparent, biological parent, or grandparent to the child? The court examines 461-A:1, IV which states that parental rights and responsibilities are defined as: “all rights and responsibilities parents have concerning their child”. However, it does not specifically define the term “parent”. The court determined that while the DNA testing proves that J.B. is not the biological father that in itself is not fatal to his request for parental rights under the statute so long as he alleges sufficient facts to establish his status as a parent by other means.

The court holds that J.B. meets the threshold to establish himself as a parent for two reasons.

1)      In order to impose an obligation of child support there needs to be an establishment of paternity. Therefore, when J.G. sought and received a child support order she acknowledged that J.B was A.B.’s parent.

2)      Also, according to RSA 5-C:24 paternity may be established when an affidavit is filed with the clerk of the town where the birth occurred. This has a legal effect of establishing paternity without requiring further action.

Finally, the court holds that there is no unconstitutional intrusion of J.G.’s right to raise and care for A.B. because J.B. is also A.B.’s parent and enjoys rights equal to J.G.’s.

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

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