It comes into force on January 1st and provides a new framework for determining payments
In June, Governor Sununu signed legislation fundamentally changing New Hampshire’s child support law. The law takes effect for cases filed on or after January 1, 2019.
State maintenance law does not currently have any formulas for determining the amount and duration of maintenance. As a result, alimony orders often differ from court to court. The new law tries to create a framework for more predictability. It also defines standards for changing and terminating child support payments.
Interestingly, the federal alimony law will also change effective January 1, when any new alimony orders entered thereafter will no longer be tax deductible for the person paying alimony or taxable income for the person receiving it.
These are the highlights of the new law:
1. The purpose of maintenance is to enable both parties to maintain a decent standard of living. A party may seek maintenance while the divorce is pending or no later than five years after it takes effect.
2. The “payee’s” claim for maintenance must show that they need maintenance, followed by proof that the “payer” is solvent. Formulas determine the amount and duration of maintenance unless an agreement has been reached between the parties. The amount of alimony is the lesser of the reasonable needs of the payee or 30 percent of the difference between the gross incomes of the parties.
In applying the formula, the gross income is reduced by the amount of child support or alimony from a previous family, child support for the children of the current family, and health insurance costs in favor of the other party.
The maximum length of alimony is 50 percent of the length of the marriage, unless the parties agree otherwise or the court determines that equity requires adjustment considering the following factors:
• Health
• The degree and duration of any financial dependence of one party on the other. Professional skills, occupation, available employment benefits, and the present and future employability of both parties.
• Voluntary unemployment or underemployment by either party
• The special needs of minor or adult children of the parties
• Property Assigned to Payee
• The conduct of either party during the marriage, including abuse or guilt
• Differences in the benefits of the parties from the federal old-age, survivors’ and disability insurance
• Depreciation of significant assets by a party
3. Duration of marriage is defined as the number of months from the date of marriage to the date of service of the application for divorce, legal separation or annulment. The court may use a different start or end date at its discretion.
4. The law terminates alimony payments at full retirement age unless the parties agree otherwise or the court determines that the judiciary requires a different termination date due to special circumstances.
5. The law requires the payee to demonstrate that he needs or is unable to support himself with a decent standard of living through decent employment and that the payer is able to support his own reasonable needs. In these two tests, the court must take into account the way of life of the marriage and the need for both to adjust their standard of living because of the separation. Income from overtime or secondary employment is excluded from the cost bearer if it began after the parties separated or the application was submitted.
6. The court can order alimony increase or decrease, which means it can decrease or increase the alimony generated by the formula in certain increments.
• Alimony ends upon remarriage or death of the payee. If the payer dies, alimony will be charged to the payer’s estate unless that obligation is covered by life insurance or other security.
• Requests for a change may be made during the payment of alimony or within five years after the original alimony order ended. The moving party must pass a three-part test with clear and persuasive evidence, a higher standard of proof than applicable law. The examination presupposes a significant and unforeseeable change in circumstances since the maintenance order took effect; no unreasonable hardship for either party; and justice requires a change in amount or duration.
Earnings from an outside job or overtime will be excluded from consideration of an amendment request if they began after the date of the original maintenance order. If child support is a factor in determining the amount of support, the support may be recalculated if child support is changed or terminated without passing this test.
• A payer can apply for a change in maintenance due to cohabitation. The court may consider these factors:
• Long-term cohabitation in a main residence
• Sharing of costs
• The couple’s economic interdependence or economic dependency on each other
• Shared ownership or use of real estate or personal property, including financial accounts
• The existence of an intimate relationship between people
• Impersonate a couple or are generally considered to be a couple by making statements or representations to third parties
• Any other factors that the Court deems material and relevant.
While the new law will likely change the way alimony cases are handled by the court, it provides guidelines that parties can use to negotiate a settlement of their alimony issue and avoid a hearing. Anyone facing a divorce is encouraged to speak with an attorney to discuss the application of the law to his/her particular case, including timing factors as federal and state changes in the law change.
James V. Ferro Jr., Head of Ferro Law & Mediation Group, Manchester, can be reached at 603-836-5400 or jim@ferrolawgroup.com.
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