Massachusetts attorney Jason V. Owens sees similarities between a newly enacted alimony law in New Hampshire and the Massachusetts law passed in 2011.
When it comes to divorce and family law, each state contains its own universe of law. If New Hampshire’s brand new alimony law is any indication, however, sometimes borrowing inspiration from a neighbor is the best form of innovation.
New Hampshire Changes Alimony Laws to Closely Match Massachusetts
When New Hampshire couples divorced in the past, the issue of alimony was often a source of contention due to the absence of clear statute providing guidance to family court judges. New Hampshire judges had to determine alimony in every case, with a template or clear guidelines for what constituted a fair result. The result was a wide variety of alimony orders—depending on the judge and attorneys, alimony orders could be light or incredibly heavy.
Much like Massachusetts prior to the Alimony Reform Act of 2011, the lack of uniformity in New Hampshire caused excessive litigation, where the lack settling cases was made more difficult without an established baseline that judges, attorneys and litigants could use to determine a reasonable order.
New Hampshire’s new alimony law aims to change that by providing judges with an official guideline on how to issue alimony orders. If the sounds a lot like the Massachusetts alimony statute, this is because Granite state legislators looked to Massachusetts when crafting the law.
New Hampshire Alimony Law Looks a Lot Like Massachusetts’ Law
The new alimony law, Senate Bill 71, was signed into law by New Hampshire Governor Chris Sununu back in June. The key terms of the bill, though, are notably similar to Massachusetts’ alimony laws:
- Length of the marriage: New Hampshire’s new law sets when a marriage begins and ends—from the date of the marriage to the service of the divorce papers—but gives a court the discretion to use a different timeline.
- Duration of alimony: The new alimony law in New Hampshire, like our law in Massachusetts, uses the length of the marriage to determine how long alimony payments need to be made. The formula used is somewhat different, but the basic metric of determining alimony duration based on the length of the marriage is the same.
- Amount of alimony: In Massachusetts, alimony is based on a recipient’s need and is presumptively “capped” at 35% of the difference between the parties’ gross incomes. Meanwhile, the New Hampshire statute provides, “The amount of an alimony order shall be the lesser of the payee's reasonable need, or a formula based on 30 percent of the difference between the parties' gross incomes at the time the order is created, unless the court finds that justice requires an adjustment.”
- Room for flexibility: Several of the requirements in New Hampshire’s new law only apply if the couple does not come to a different agreement on their own. As in Massachusetts, New Hampshire judges also have broad discretion to deviate from the guidelines when needed. The new law provides that “the court may adjust the formula amounts, duration limitations, or both, if the parties agree or if the court finds that justice requires an adjustment.”
There are Still Critics, Though
Unsurprisingly, there are critics who think the new alimony law in New Hampshire is a bad idea. Much of this criticism, however, has tended to focus on a surprising detail: The ability of a divorce judge to use a different set of dates to determine the length of a marriage.
Jay Markell, a New Hampshire divorce attorney who had backed a contemporaneous alimony reform bill that ultimately failed in the state legislature, says that this practice would be unconstitutional for marriages that happened in 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 in an article by the Union Leader.
However, his condemnation assumes that when a New Hampshire judge uses other factors to set a different marriage length—like an extensive premarital period of cohabitation that is common for same sex couples—it would somehow alter those records, which is not necessarily the case. Indeed, the statute provides that “[i]f justice requires, the court may use a different beginning or ending date in measuring the length of the marriage.” It is not clear that the court’s use a different date – as a measuring device for calculating the duration of alimony – actually constitutes “changing the date of the marriage” as Markell argues.