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Alimony bill heads to governor that top lawyer says will make NH 'laughingstock of the nation'

State House Bureau

June 11. 2018 12:49PM


CONCORD — Gov. Chris Sununu will soon have to decide whether he will sign into law a bill rewriting the alimony statutes in New Hampshire, after a two-year legislative debate.

Supporters of the bill, SB 71, say it will provide some predictability in what is now an uncertain and litigious process, while one prominent family law attorney says it will make New Hampshire “the laughingstock of the nation.”

Well-known Temple attorney Honey Hastings, who retired from her 34-year practice of family law to focus on mediation in 2016, worked with a group that included lawyers from N.H. Legal Assistance and a certified financial planner to draft SB 71, sponsored by Sen. Sharon Carson, chair of the Senate Judiciary Committee.

Over the same period of time, Jay Markell, a prominent divorce and family law attorney with three offices in New Hampshire, worked with state Rep. Debra DeSimone of Atkinson on a competing bill, HB 521. DeSimone also signed on as a co-sponsor of SB 71.

Both bills were introduced in January 2017, with a consensus that the state needs more clarity in the laws governing alimony, paid by one ex-spouse to the other after divorce for a specific period of time based on a variety of factors.

The House Children and Family Law Committee recommended against HB 521, the Markell bill, and it died on the House floor as the second year of the session got under way in January 2018.

SB 71, meanwhile, continued to work its way through the legislative process, clearing the Senate in March of 2017, and moving over to the House, where it passed in January 2018. A conference committee of House and Senate negotiators hammered out a compromise over the spring, and the bill passed both chambers on May 23.

Constitutional concerns

Markell is urging Sununu to veto the bill for a variety of reasons, including a provision that allows a judge to change the date of a marriage, claiming that’s unconstitutional and will only add confusion to an already complicated process.

Hastings called that concern “a picky detail.”

“I’m surprised Jay is bringing this up,” she said. “There are other options for adjustment, so if this were taken out, the court could use other justifications in the bill to make the same kind of changes.”

The bill links alimony to the length of the marriage, and states that the length of the marriage can be adjusted by the family court judge if “justice requires.”

Hastings explained that the provision is aimed primarily at divorces involving same-sex couples, whose marriages only recently became legal.

“The key area this affects is same-sex marriage,” said Hastings. “There are a lot of people who have only been married a few years, but have had a committed relationship with shared finances for many years. They got married when the law changed, so it seems like a short marriage, but it wasn’t.”

Altering a public record

The effect of the law, however, is not limited to same-sex couples.

“There could be other couples who had shared relationships, three kids, but not married for 15 years, then they got married, but only stayed married two years,” says Hastings. “Is that a two-year marriage or 17-year marriage?”

Markell maintains there are ways to address those circumstances without changing marriage dates.

“The state Supreme Court has already determined that family courts can consider a period of premarital cohabitation in dividing assets,” he said. “Since the present alimony law allows a court to consider any other factors deemed relevant (in granting alimony), presumably including a period of premarital cohabitation, this is pointless.”

Not only is it pointless, says Markell, it’s unconstitutional as it applies to marriage certificates issued by other states.

“Changing the date of a marriage is altering a public record of another state, and under the full faith and credit clause of the constitution, you can’t do that,” he said. “This bill is going to be very bad for New Hampshire, will make us the laughing stock of the nation, and generate an enormous amount of litigation.”

Hastings says the option is likely to be applied in only “one case out of 1,000.”

“I think the number of cases in which the length of the marriage could be varied is extremely limited,” she said.

Seeking certainty

The point of the revision, according to Hastings, is to provide some degree of certainty through guidelines to a process that, unlike child support, has been wide open and therefore likely to be litigated.

“These cases are extremely hard to settle, because there are no parameters,” says Hastings. “If you get Judge A, you get one decision; if you get Judge B, you get a different decision. There is a lack of predictability that means people won’t settle.”

Markell believes HB 521 addressed that concern more effectively.

He also takes issue with the way the term of alimony is calculated in SB 71, and the way the bill defines the purpose of alimony.

Rather than encourage the alimony recipient to develop independent sources of income, (called “rehabilitation” in legalese), SB 71 takes a different approach, according to Markell.

“Every state in New England recognizes rehabilitation as the primary or secondary goal of alimony,” he said. “This bill rejects that and says that the purpose of alimony is basically to provide a reasonable standard of income for both parties.”

The bill has cleared the enrollment process and has been sitting on Sununu’s desk since June 4. All his spokesman would say is that the governor is reviewing it.

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