Bar News - June 21, 2013
Court and Attorneys Brace for Child Support Changes
By: Kristen Senz
The child support guidelines set to take effect July 1 represent the most significant change to the formula for calculating child support in New Hampshire in 25 years.
The new guidelines change the child support formula from a flat rate – 25 percent of gross income for one child, 33 percent for two, and so on – to a sliding scale that divides the total financial responsibility between the two parties according to their income levels.
Generally, people with very low incomes will pay a greater percentage of net income for child support under the new guidelines, while people with higher incomes will pay at lower rates. A person making less than $15,000 per year, for example, will pay 25.6 percent of net income for one child, versus 25 percent under the existing guidelines. A person making $60,000 per year will pay at a rate of 22 percent for one child, rather than the current 25 percent.
The primary philosophy behind the changes, which are based on national research, is that people with higher incomes spend a lower percentage of their earnings on caring for their children, explains Kevin Landry, chief staff attorney at the NH Division of Child Support Services. Another underlying premise of the new guidelines is that a child should receive the same percentage of total parental income, as if the family was intact.
"As you make more money, the percentage of it that you spend on kids goes down, which makes sense when both parties earn high income," Landry said. "But what about cases where there exists a disparity of income? A low-income obligee will receive less support in some circumstances under the new formula."
The new guidelines represent a more pure form of the "shared income model" of calculating child support obligations, Landry said. "The underlying philosophy is that [parents] are going to share in the cost," he said.
Not a 'Substantial Change'
State law requires a party to show a "substantial change in circumstances" to justify a court review of a child support order outside of the normal review every three years. The phrase "substantial change in circumstances" is not defined in the law, but the session law for the guideline changes, HB 597, makes it clear that the implementation of the new guidelines on July 1 "shall not constitute a substantial change of circumstances for purposes of RSA 458-C:7."
Brigitte Siff Holmes, circuit court administrator, said the court has modified Standing Order-3C of the uniform support order to include that clarification.
"You can't modify child support simply because the guidelines changed," she said, adding that the worksheet for computing child support amounts has also changed, but all other court forms remain the same.
The court is working on other preparations in advance of the guidelines change, Holmes said. There's a major push to ensure that all child support agreements filed before July 1 are submitted to a judge for review and approval by June 28, she said.
"Initially, in order to have a smooth transition, we are making every effort to prioritize those cases where agreements have been reached or a case has been heard prior to July 1," she said. "We don't currently have backlogs, so unless something happens between now and the end of June, it's very doable."
In appropriate cases, judges have the authority to issue orders nunc pro tunc after July 1, where the intent was that the old guidelines apply, Holmes said.
A revised version of the state's online child support calculator was still in development as of Bar News press time. Landry said the state is making every effort to have it available by July 1.
Impact on Alimony?
Because the new guidelines are expected to decrease child support amounts in a number of cases, Wilton attorney Honey Hastings said more attorneys may choose to file requests for alimony to make up the difference. Currently, many attorneys don't request alimony because New Hampshire is known for not often granting it, but Hastings said this could change after July 1, given the state's new child support formula.
"This is the biggest change in the guidelines since they were adopted in 1988," she said. "This is huge."
Judge Jennifer Lemire, who sits in the 10th Circuit - Family Division in Portsmouth, said the possibility of an increase in the number of requests for alimony following the implementation of the new guidelines is something she has not considered.
"I haven't yet thought about the issue of alimony as it may relate to the application of the new Child Support Guidelines when they become effective on July 1," she said. "I suppose it's possible that a party might try to modify alimony if faced with the possibility of a reduced child support order, but there are different standards that must be met when seeking to modify alimony. The analysis is very fact-driven, and these issues will need to be addressed on a case-by-case basis."
In New Hampshire, a party can file a new alimony claim up to five years after an initial divorce decree. Modification of an existing alimony order carries an enhanced standard of proof; the party must prove a substantial change in circumstances that was both unforeseeable and unanticipated at the time of the intitial order.
Basis for Change
The new formula for calculating child support that will go into effect July 1 represents only one out of a slate of six recommendations made by researchers at the University of New Hampshire in 2009 as part of a federally mandated regular review of the state's child support guidelines. However, the specific child support rates recommended by the UNH team were altered by the New Hampshire Legislature before becoming law in 2010.
The report by the UNH researchers stressed the importance of implementing all six recommendations. New Hampshire has implemented two of the other recommendations, which involved increasing the self-support reserve amount from 100 to 115 percent of federal poverty level and removing the cap on the amount of allowable deductions for child care costs in the child support calculations.
Other recommendations included two separate changes to the allocation of health insurance costs and enacting a shared parenting adjustment that would take into account the number of nights per week a child spends with the parent who is paying child support.
It is unclear when or if the Legislature will take up further discussion of those recommendations.
The NH Child Support Guidelines that take effect July 1 are available at the NH Bar Association’s website.