Share

Family Law

Monday, September 28, 2015

New Hampshire Supreme Court Weighs in on Treatment of Taxes in Divorce

The New Hampshire Supreme Court issued two orders this month involving the treatment of taxes in a divorce.  First, the Court upheld prior case law stating that in order for a spouse to be able to receive consideration for taxes it would pay if property were to be sold, the sale has to be certain and imminent following the divorce.  Typically this scenario occurs when one spouse is awarded the marital home and the other spouse is awarded real property or other property such as a stock portfolio.  The spouse receiving the marital home will not incur taxes in most instances (although not all, depending on the price of sale), because the sale of a marital home is not generally a taxable event, whereas the sale of commercial property or a vacation home will generate a tax.

In the second case, the New Hampshire Supreme Court ruled that tax debt is marital debt, the division of which can be ordered by the Family Court.  In fact, it was ordered by the Court that the Family Court has exclusive jurisdiction over the allocation of this kind of marital debt.

As you can see, tax treatment is an important consideration in crafting both your mediated agreements and proposals to the court.  At Brennan Lenehan, we can assist you with this legal issue as well as all of your divorce needs.  


Monday, September 14, 2015

Divorce Planning v. Estate Planning

            Protecting your assets in the event of a divorce can be a daunting task.  Some couples prepare estate plan documents thinking this will “protect” their assets and ensure that their intent as to the distribution of those assets will be clear.  This is not always the case in the event of a divorce.  For example, creating an irrevocable trust with your spouse for the benefit of your spouse and children may “protect” your assets in some respects, but it may not necessarily shield your assets from equitable distribution at the time of divorce.

            In order to protect your assets in the event of a divorce, a pre-nuptial agreement is typically used.  Parties sign this agreement prior to the marriage and set out their intent as to their respective assets upon the dissolution of the marriage.  In the 2013 case of Estate of Wilber, 165 N.H. 246, 248 (2013), the New Hampshire Supreme Court ruled that post-nuptial agreements could be enforced in the State of New Hampshire.  Married couples may now agree as to how their assets should be distributed at the time of divorce and have those agreements enforced by the court.    

We here at Brennan Lenehan can assist you with your “divorce planning” needs.  We understand that parties entering into a marriage do not do so with the intent of divorcing their spouse and that the protection of one’s assets in the event of a divorce can be a very sensitive subject for couples.  We therefore provide the utmost concern and care for our clients in assisting them with this process.


Thursday, September 3, 2015

BACK TO SCHOOL

              ‘Tis the season!  September is here and our children are off to college.  For all the uncertainties of a new chapter in their lives, one thing is certain:  college is expensive!  How will it be paid?  Did you start planning for the payment of college at conception?  Did you open 529 accounts?  Or, did you both agree that you would find or scrape up the money when the time came to send them to college?

               When an unexpected life event happens, such as a divorce, parents are often at a loss for how they will pay for college.   As of August, 2013, the law now provides parents with the option to address how college expenses will be paid in their final decree of divorce.  If parents agree to allocate college expenses in some fashion, the court merely requires that the parents also identify whether the requirement to pay for college is a modifiable or a non-modifiable event.

               RSA 461-A:21 provides:

Parents may agree to contribute to their child’s college expense or other educational expenses beyond the completion of high school as part of a stipulated decree, signed by both parents and approved by the court.  The agreed-on contribution may be made by one or both parents.  The agreement may provide for contributions to an account to save for college, for the use of an asset, or for payment of education expense as incurred.  Any such agreement shall specify the amount of the contribution, a percentage, or a formula to determine the amount of the contribution.

               Regarding modification, RSA 461-A:22 states:

Every agreement made under RSA 461-A:21 shall state whether the agreement either is modifiable or is not modifiable.  To qualify as not modifiable, the agreement shall state a specific dollar amount to be contributed by either or both parents.  If the parents’ agreement states that it is modifiable, the legal test for modification shall be a substantial change in circumstances that was not foreseeable when the agreement was signed.

               The Court did not always have the authority to approve or enforce the payment of college expense.  In fact, between February 2, 2004 and August 27, 2013, the Court had no authority to address the payment of college in a divorce case.  Prior to February 2, 2004 the court had the authority to order an allocation of payment of college expenses.

               Therefore when it comes to the payment of college expenses, it is important to check the date of the order of your final decree of divorce.  You may find that your spouse is required to assist in the payment of college expense.

               At Brennan Lenehan, we can analyze your court orders to see if there is a requirement for the payment of college expenses for your children by either you, your former spouse or both of you.  We are happy to assist you in what is likely to be one of the most important events in your children’s lives. 


Archived Posts

2017
2016
2015


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. The receipt or viewing of this information is not intended to create an attorney-client relationship.



© 2017 Brennan Lenehan Iacopino & Hickey, Attorneys at Law | Disclaimer
85 Brook Street, Manchester, NH 03104
| Phone: 603-668-8300

Overview of Services | Administrative Proceedings | Alternate Dispute Resolution | Appellate Law | Corporate Law | Civil Litigation | Criminal Defense | Domestic Relations / Family Law / Divorce | Estate Planning | Personal Injury | Probate Matters | Real Estate Law | Workers Compensation | | Attorneys | Firm History

Google+

Law Firm Website Design by
Zola Creative


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. The receipt or viewing of this information is not intended to create an attorney-client relationship.