HB521 (2018) Detail

Revising the alimony statute.


HB 521 - AS INTRODUCED

 

 

2017 SESSION

17-0703

05/09

 

HOUSE BILL 521

 

AN ACT revising the alimony statute.

 

SPONSORS: Rep. DeSimone, Rock. 14; Rep. Gargasz, Hills. 27; Rep. K. Rice, Hills. 37

 

COMMITTEE: Children and Family Law

 

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ANALYSIS

 

This bill provides the terms, duration, and criteria for modification of various types of alimony.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

17-0703

05/09

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Seventeen

 

AN ACT revising the alimony statute.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Alimony.  RSA 458:19 is repealed and reenacted to read as follows:

458:19  Alimony.

I.  In this section:

(a)  "Temporary alimony" means the periodic payment of support to a spouse who is found to be economically dependent on a temporary basis and is awarded during the pendency of a proceeding.

(b)  "Term alimony" means the periodic payment of support to an economically dependent spouse for which a specific term of alimony is needed.

(c)  "Rehabilitative alimony" means the periodic payment of support to a spouse who is economically dependent, but who is expected to become economically independent or self-sufficient by a specified time, by means that include, but are not limited to, reasonable educational or vocational training, reasonable reemployment, or a rehabilitation program, or from the payment of money or transfer of property from the obligor spouse to the economically dependent spouse under a judgment.  The proponent of a rehabilitative plan shall submit a proposed plan to the court for consideration.  The submission of a plan may be waived by agreement of the parties, or by the court, for good cause shown.

(d)  "Reimbursement alimony" means the periodic or one-time payment of support to a spouse after a marriage of not more than 5 years to compensate the obligee spouse for economic or noneconomic contributions to the financial resources of the obligor spouse, which include, but are not limited to, assisting a spouse to complete educational, vocational, or other rehabilitative training.

(e)  "Transitional alimony" means a one-time payment of support to a spouse after a marriage of not more than 5 years to transition the obligee spouse to an adjusted lifestyle or location as a result of divorce.

(f)  "Full retirement age" means the age at which a person becomes eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance Program, and does not include "early retirement age" as that term is defined under 42 U.S.C. section 416, if early retirement is available to the obligor or "maximum benefit age" if additional benefits are available as a result of delayed retirement.

(g)  "Length of marriage" means the number of years from the date of the legal marriage to the date of the service of a petition for divorce, annulment, or separate support filed in any court of competent jurisdiction within the state of New Hampshire.

(h)  "Cohabitation" means a relationship between an obligee and another unrelated person resembling that of a marriage.

(i)  "Maintenance of a common household" is defined as an obligee sharing a primary residence together with one or more adults.

II.  Upon petition or motion from a person who is a party to an action for divorce, separation, or annulment, and who seeks alimony, the court shall make orders for the payment of alimony, if the party in need lacks sufficient income, property, or both, and, the request is made within 5 years of the date of the decree for annulment, separation, or divorce, if no prior orders for alimony have issued and the court finds, by a preponderance of the evidence, both of the following:

(a)  That the party in need lacks sufficient income, property, or both, including property apportioned in accordance with RSA 458:16-a, to provide for his or her own reasonable needs, and the party from whom alimony is sought is able to meet his or her own reasonable needs while meeting the reasonable needs of the party seeking alimony.  In deciding to issue alimony orders, the court shall consider:

(1)  The style of living to which the parties have become accustomed during the marriage.

(2)  The extent to which the parties must adjust their standards of living, based on the creation of, or maintenance of, separate households.

(3)  Whether either party is cohabiting or maintaining a common household with another adult.

(4)  Any other factor the court deems relevant and material.

(b)  That the party in need is unable to be self-supporting through appropriate employment or cannot engage in employment that will meaningfully assist the party in need in meeting his or her own reasonable needs, is not voluntarily unemployed or underemployed, or is allocated parental rights and responsibilities under RSA 461-A for a child of the parties whose condition or circumstances make it appropriate that the parent not seek employment outside the home.

III.(a)  In determining the appropriate form, amount, and duration of an alimony order, a court shall consider:

(1)  The length of the marriage;

(2)  The age and health of the parties;

(3)  Social or economic status and occupations of the parties;

(4)  The amount and sources of income, including property awarded under RSA 458-16-a;

(5)  Vocational skills and the employability of either party including employment through reasonable diligence;

(6)  Additional educational or vocational training, if relevant;

(7)  The economic and non-economic contributions to the estate and any liabilities;

(8)  The reasonable needs of the parties;

(9)  The opportunity of each party to acquire future capital, assets, and income;

(10)  Lost economic opportunity as a result of the marriage;

(11)  The ability to maintain the marital lifestyle;

(12)  Dissipation of assets;

(13)  The conduct of either party;

(14)  The federal and state tax consequences of the order;

(15)  The economic adjustments that the parties must make in the creation of, and maintenance of separate households; and

(16)  Any other factor the court deems relevant and material.

(b)  The amount of the order shall be the lesser of the obligee's reasonable need, or 35 percent of the difference between the parties' gross incomes at the time the order is created, with gross income and the obligor's adjusted gross income as defined in RSA 458-C:2.

(c)  In creating an alimony order, the court shall first calculate a child support order pertaining to the parties' children, in accordance with RSA 458-C. The child support order shall be applied to, and reduce the obligor's gross income, and is credited to the obligee's gross income for the purpose of creating an alimony order.  If the parties have no children to whom a child support order applies, then this provision is not applicable.

(1)  The court shall also exclude from the obligor and obligee's gross income:

(A)  A minor child's social security benefit payments.

(B)  Debts paid in lieu of alimony.

(C)  A second or subsequent spouse's income.

(D)  Court-ordered or administratively ordered support actually paid to others, for adults or children.

(E)  Mandatory, not discretionary, retirement contributions.

(F)  State income taxes actually paid.

(G)  Amounts actually paid by the obligor for allowable child care expenses or the medical support obligation for minor children of either party.

(H)  Capital gains, dividend, interest, pension, or other income derived from property which has been equitably been divided.

(I)  A child's allotment paid from an obligor parent's for a social security disability benefits being received by the child or children which are derived from the obligor's disability.

(2)  The calculation of gross income may include veteran's disability benefits collected by either or both parties to the extent permitted by federal law.

(d)  In establishing the form and type of alimony order, the court shall consider the types of alimony defined in paragraph I.

IV.(a)  Upon a request by a party, or upon renewal, modification, or extension of a prior order for alimony, the court may order alimony to be paid for a length of time as the parties may agree, or in the absence of any agreement, determined in accordance with this section.

(b)  Absent an agreement of the parties, and in all cases pertaining to the creation, modification, extension, renewal, variance, or termination of any alimony order, the court shall make written findings relating to its decision, including the reasons for the granting or denial of any request for alimony.

V.(a)  Temporary alimony shall end upon the issuance of a final decree of divorce or annulment of marriage and shall not be renewed or extended.

(b)  Term alimony shall end upon the death of either spouse or the remarriage of the obligee spouse, and shall depend on the length of the marriage.

(1)  In setting a final order, and prior to the issuance of a final decree of divorce or annulment of marriage, and, unless a court makes written findings that a variance beyond the time limits is in the interests of justice, and the marriage is 20 years or less, term alimony shall end no later than the dates set forth in conformity with the following limits:

(A)  If the length of the marriage is 5 years or less, term alimony shall continue for not longer than 50 percent of the number of months of the marriage.

(B)  If the length of the marriage is 10 years or less, but more than 5 years, term alimony shall continue for not longer than 60 percent of the number of months of the marriage.

(C)  If the length of the marriage is 15 years or less, but more than 10 years, term alimony shall continue for not longer than 70 percent of the number of months of the marriage.

(D)  If the length of the marriage is 20 years or less, but more than 15 years, term alimony shall continue for not longer than 80 percent of the number of months of the marriage.

(E)  The court may order alimony for an indefinite length of time for marriages that are more than 20 years in length.  The order shall terminate on the death of either party or remarriage of the obligee spouse.

(2)  Once issued, term alimony orders shall end upon the obligor reaching full retirement age and actual retirement by the obligor, unless otherwise limited by the duration of the order.  The obligor's ability to work beyond full retirement shall not be a reason to extend alimony, unless the court sets a different alimony end date, for good cause shown, and determines that it is in the interest of justice to do so, based on clear and convincing evidence.

(3)  Unless the obligor and obligee agree otherwise, a term alimony order may be modified as to the amount of the order, based on a substantial and unforeseeable change of circumstances, or by agreement of the parties.

(4)  In creating an initial term alimony order, or in modifying an existing or unexpired term alimony order, the court may vary from the duration and amount limitation of an order, if the court finds by a preponderance of the evidence that a variance is necessary in the interestes of justice.  Reasons for a variance may include, but are not limited to:

(A)  Advanced age.

(B)  Chronic or severe illness.

(C)  Unusual health circumstances of either party.

(D)  Whether a party is ordered to pay bills in lieu of alimony.

(E)  The extent to which either party conferred significant economic or non-economic benefits upon the other.

(F)  Conduct of the parties during the marriage, including fault grounds as described in RSA 458:7, or abuse as defined in RSA 173-B.

(G)  Dissipation or diminution of significant assets by a party, coupled with a lack of sufficient assets from which property can be equitably divided or recouped under RSA 458:16-a.

(H)  Cost, payment of, and provision of health insurance for the obligee spouse.

(I)  A party's inability to become self-supporting due to serious mental or physical disability.

(J)  Any other reason the court deems material and relevant.

(c)  Rehabilitative alimony shall end upon the remarriage of the obligee, the occurrence of a specific event in the future, or the death of either spouse.  The term of rehabilitative alimony shall not last more than 5 years.  Unless the obligee has remarried, rehabilitative alimony may be renewed upon petition by any party, on a showing of compelling circumstances by clear and convincing evidence that:

(1)  Unforeseen events prevented the obligee spouse from being self-supporting at the end of the term, with due consideration for the length of the marriage;

(2)  The obligee demonstrated a good faith effort to become self-supporting; and

(3)  The obligor is able to pay without undue burden.

(d)  Reimbursement alimony shall end upon the death of the obligee or a certain date of not more than 5 years, to compensate a spouse for economic or non-economic contribution to the financial resources to the obligor spouse, which may include, but is not limited to, aiding the obligor spouse to complete an educational, vocational program, or other training.  It may not be modified after the order is issued and the income exclusions in subparagraph III (c) shall not apply.

(e)  Transitional alimony shall end upon the death of the obligee or a date certain, but shall not last more than 3 years from the date of the issuance of the final decree of divorce or annulment of marriage.  The court shall not modify or extend transitional alimony or substitute any other type of alimony for transitional alimony.

(f)  The court may require reasonable security for the payment of any alimony order to secure the obligations created thereto.  In making orders to secure obligations, including the maintenance of life insurance, courts shall consider age, cost, insurability, the amount of the alimony ordered, the nature and size of the estate awarded to the parties, the duration of the order, interest rates, other obligations either party may have at the time the order is made, and any other factor the court deems relevant.

VI.(a)  Upon the request of any party, the court may make orders for the modification, termination, or suspension of alimony upon a showing of obligee's cohabitation with, or maintenance of a common household, with an unrelated adult or adults.

(b)  Cohabitation shall be deemed to exist, and the court shall find that cohabitation exists, if a party shows by a preponderance of the evidence that a relationship exists between an obligee and another unrelated adult resembling that of a marriage.  The court shall consider evidence which includes, but is not limited to, any of the following:

(1)  Living together on a continual basis in a primary residence.

(2)  Evidence of shared expenses.

(3)  Whether, and to what extent one person is supporting another.

(4)  The existence and use of joint bank accounts or other shared financial accounts, joint ownership of, or use of real or personal property.

(5)  Life insurance policies, carried by one person benefitting another, or other such financial entanglements.

(6)  The existence of an intimate relationship between the persons, and how the persons hold themselves out to others, as well as oral or written statements or representations, made to third parties.

(7)  Any other evidence of cohabitation.

(c)  Maintenance of a common household shall be deemed to exist, and a court shall find that a shared common household exists, if a party shows by a preponderance of the evidence, that an obligee is maintaining a common household, when there is evidence that an obligee is sharing a primary residence together with another person, with or without others.  The court shall consider evidence which includes, but is not limited to:

(1)  Oral or written statements or representations made to third parties regarding the relationship of the parties.

(2)  The economic interdependence of the couple or economic dependence of one upon the other.

(3)  Whether the persons are engaged in conduct and collaborative roles in furtherance of their life together.

(4)  The benefit in the life of either or both of the persons from their relationship and the community reputation of the persons as a couple.

(5)  Any other relevant and material factors the court deems relevant.

(d)  If an alimony order is terminated, modified, or suspended by reason of cohabitation or the maintenance of a common household, the unexpired portion of the original alimony award may be reinstated upon a showing by a preponderance of the evidence that an obligee's cohabitation or maintenance of a common household has ceased.  However, the order shall not be extended past the order's original termination date.

VII.(a)  A party who seeks to renew an expired alimony order or who seeks a new alimony order after a previous alimony order has ended shall make application to the court with notice to the adverse party.

(b)  If the court has issued an alimony order for a definite period of time, the order may be renewed upon a petition filed within 5 years of the date of the termination of the prior order.  The petition may be granted only upon a finding by clear and convincing evidence that unforeseen or compelling circumstances exist, there is no undue burden on an obligor, and it is in the interest of justice to grant the petition.

(c)  A petition to renew alimony or to create a new alimony order shall be granted only if the court finds by clear and convincing evidence that unforeseen and compelling circumstances exist that prevent, or prevented, an obligee former spouse from becoming self-supporting, that the obligor is able to pay without undue burden, and that it is in the interest of justice that the alimony order be renewed, or a new alimony order be created.

(d)  Nothing in this paragraph shall change or alter the terms of the original alimony order.

(e)  Nothing in this paragraph shall  prevent a party from seeking a renewal of, or the creation of a new alimony order prior to the expiration of an existing alimony order.

(f)  Nothing in this paragraph shall preclude a court from ordering the renewal of an expired alimony order in any amount or term that does not exceed either the amount or term of the expired alimony order.

VIII.(a)  In any modification of an existing alimony order, the earned or unearned income and social security disability payments of a spouse of the obligor party shall not be considered a source of income to the obligor party, unless the obligor party resigns from, or refuses employment, or is voluntarily unemployed, or underemployed, in which case the income of a subsequent spouse may be imputed to the obligor party only to the extent that such obligor party could have earned income in his or her usual employment.  In such actions, the court may consider the veteran's disability benefits of a spouse of the obligor party to the extent permitted by federal law.

(b)  For the purpose of modification of an existing order, any income from a second job or overtime from either the obligee or the obligor shall be presumed to be irrelevant to an alimony modification if a party works more than a single full time position, and the second job or overtime began after the entry of the initial order.

IX.(a)  Alimony orders which are in effect prior to the effective date of this section shall be treated in the following manner:

(1)  Unless otherwise identified by the definitions contained in this section, all alimony orders in effect prior to the effective date of this section shall be deemed to be orders for term alimony, and may be modified as to duration of the order if the duration of the prior order exceeds the duration of an order expressed in this section or as justice requires.

(2)  All other alimony orders in effect prior to the effective date of this section are modifiable as to the amount of the order, as justice requires.

(3)  Any request for an alimony modification, suspension, or termination based upon an obligor's reaching of a full retirement age, and upon the obligor's actual retirement, may be modified as of the effective date of this section, as justice requires.

(4)  A request for an alimony modification, termination, or suspension of an existing alimony order which was in effect prior to the effective date of this section for which the basis of the modification, termination, or suspension is the obligee's cohabitation or sharing of a common household which began prior to or after the date of the filing of a petition for divorce, separation, or annulment shall be not be modifiable on this basis alone, unless it is shown by a preponderance of the evidence that the cohabitation or sharing of a common household existed, and continued to exist, prior to the entry of the decree for divorce, separation, or annulment, and that the existence of the cohabitation or shared common household substantially contributed to either the duration or the amount of the alimony order, and the obligee did not disclose the existence of the cohabitation or the shared common household or took steps to conceal it.

(5)  A request for an alimony modification, termination, or suspension for which the basis of the modification, termination, or suspension, is cohabitation or sharing of a common household which was in effect after the date of a decree for divorce, separation, or annulment, but prior to the effective date of this section may be modified, terminated, or suspended as justice requires.

2  Annulment, Divorce and Separation; Revision of Orders; Reference Change.  Amend RSA 458:14 to read as follows:

458:14  Revision of Orders, etc.  Except as otherwise provided in RSA 458:19, [I and VII,] the court, upon proper application and notice to the adverse party, may revise and modify any order made by it, may make such new orders as may be necessary, and may award costs as justice may require.

3  Effective Date.  This act shall take effect January 1, 2018.

Links

HB521 at GenCourtMobile

Action Dates

Date Body Type
Feb. 21, 2017 House Hearing
Feb. 22, 2017 House Exec Session
Nov. 9, 2017 House Exec Session
Jan. 3, 2018 House Floor Vote

Bill Text Revisions

HB521 Revision: 2533 Date: Jan. 26, 2017, 3:41 p.m.

Docket

Date Status
Jan. 5, 2017 Introduced 01/05/2017 and referred to Children and Family Law HJ 3 P. 17
Feb. 21, 2017 Public Hearing: 02/21/2017 10:30 AM LOB 206
Feb. 22, 2017 Executive Session: 02/22/2017 LOB 206
Retained in Committee
May 17, 2017 Retained Bill Subcommittee Work Session: 05/17/2017 10:00 AM LOB 206
June 6, 2017 Retained Bill Subcommittee Work Session: 06/06/2017 01:30 PM LOB 206
Sept. 12, 2017 Retained Bill Subcommittee Work Session: 09/12/2017 01:30 PM LOB 206
Oct. 24, 2017 Retained Bill Subcommittee Work Session: 10/24/2017 01:00 PM LOB 206
Nov. 9, 2017 Executive Session: 11/09/2017 10:00 AM LOB 206
Jan. 3, 2018 Committee Report: Inexpedient to Legislate for 01/03/2018 (Vote 14-0; CC)
Jan. 3, 2018 Inexpedient to Legislate: MA VV 01/03/2018 HJ 1 P. 28