Alimony in New Hampshire.
Whether the state sets a formula or leaves it to the judge, what the court has to weigh, how long it runs, and what brings it to an end.
See a different stateNew Hampshire
RSA 458:19-a, II(a), verbatim: 'The amount of a term alimony order shall be the lesser of the payee's reasonable need, or a formula based on 23 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. In making this calculation, gross income as defined in RSA 458:19, V shall be: (1) Reduced by subtracting amounts that are ordered and actually paid for: (A) Child support or alimony, including child support for the parties' joint children; and (B) Costs for health insurance coverage or other specified expenses for the benefit of the other party; and (2) As to the payee's income, adding the amount of child support ordered for the parties' joint children.' RSA 458:19-a, II(c), verbatim: 'The formula percentage in subparagraph (a) of 23 percent is based on alimony not being deductible to the payor and taxable to the payee under federal income tax law. If alimony becomes deductible to the payor and taxable to the payee under federal income tax law, the formula shall be based on 30 percent of the difference between the parties' gross incomes.' RSA 458:19-a, II(b), verbatim: 'The court may vary this formula when an equal or approximately equal parenting schedule has resulted in an adjustment to the child support guidelines under RSA 458-C:5. The court may make a step-down or step-up order that begins with the current reasonable need or the formula and decreases or increases over time. If child support is a factor in determining the amount of alimony, alimony may be recalculated when child support is modified or ended, without meeting the tests for modification in RSA 458:19-aa, I.' 'Gross income' is defined at RSA 458:19, V as 'all income from any source, whether earned or unearned', with a long enumerated list, 'but not exclusions from gross income as defined in paragraph III'. Those exclusions, RSA 458:19, III, are 'Social Security benefits received on behalf of a minor child; capital gains from property received in the parties' divorce; income of a subsequent spouse, except as provided in RSA 458:19-aa, II; and income from overtime or a second job if the party has a full time job and such overtime or second income began: (a) After the parties separated or a petition for divorce or legal separation was filed, whichever occurred first; or (b) In an action for modification, if such income began after the existing alimony award.'
Use the state’s own words
New Hampshire calls it alimony, in two statutory kinds: 'term alimony' and 'reimbursement alimony'. RSA 458:19 supplies definitions for both, plus 'temporary alimony' for support while the case is pending. RSA 458:19, XV: 'Term alimony means periodic payments made to a spouse or former spouse after the effective date of the final decree.' RSA 458:19, XIV: 'Temporary alimony means periodic support payments to or on behalf of a spouse while a case is pending and ending on the effective date of the divorce, legal separation, or annulment.' RSA 458:19, XI: 'Reimbursement alimony means one or more payments to a spouse or former spouse to compensate him or her for economic or non-economic contribution to the financial resources of the payor.' The words 'maintenance' and 'spousal support' are not the statutory terms.. Using the state’s own term matters when you are searching for forms or reading an order — the words are not interchangeable across state lines, and some of them mean different things in different places.
What the law actually says
The power the court has
What the judge has to weigh
How long it lasts
Duration
RSA 458:19-a, III, verbatim: 'The maximum duration of term alimony shall be 50 percent of the length of the marriage, unless the parties agree otherwise or the court finds that justice requires an adjustment under paragraph IV. If justice requires, the court may use a different beginning or ending date in measuring the length of the marriage. Term alimony shall end on the remarriage of the payee, unless the order is based on an agreement of the parties that provides otherwise.' 'Length of marriage' is defined at RSA 458:19, VII as 'the number of months from the date of marriage to the date of service of the petition for divorce, legal separation, or annulment.' A second and independent cap runs from retirement. RSA 458:19-aa, IV, verbatim: 'Except as provided in paragraph V, term alimony orders shall end upon the payor reaching full retirement age or actual retirement by the payor, whichever is later, unless the parties agree otherwise or the court finds that justice requires a different termination date based on special circumstances under RSA 458:19-a, IV. The payor's ability to work beyond full retirement shall not of itself be a reason to extend alimony. The payor shall provide the payee reasonable notice in advance of retirement. Sixty days' notice shall be presumed to be reasonable.' RSA 458:19-aa, V permits an extension past that point 'up to an amount that equalizes the parties' gross benefits under the federal Old Age, Survivors, and Disability Insurance Social Security program.' Reimbursement alimony has its own cap: RSA 458:19-a, V(b), 'The maximum time period shall be 5 years from the final decree effective date, unless the parties agree otherwise'. Sources: https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-a.htm and https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-aa.htm
Does behavior matter?
Marital misconduct
Relevant, but only as one of eleven 'special circumstances' that may justify an adjustment to the formula amount or the duration cap, and only through a double reference. RSA 458:19-a, IV(g), verbatim: 'The conduct of either party during the marriage, including abuse as defined in RSA 173-B:1, I or fault as described in RSA 458:16-a, II(l).' The property statute it points to is itself qualified. RSA 458:16-a, II(l), verbatim: 'The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and: (1) Caused substantial physical or mental pain and suffering; or (2) Resulted in substantial economic loss to the marital estate or the injured party.' So the fault limb requires three things at once: fault of a kind specified in RSA 458:7, causation of the breakdown, and either substantial pain and suffering or substantial economic loss. Misconduct is neither a bar nor a mandate; it is a reason to depart from the formula, and the party seeking the departure carries the burden under RSA 458:19-a, IV. Sources: https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-a.htm and https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-16-a.htm
When it ends, and when it can change
What brings it to an end
Four separate rules, in three places. Remarriage of the payee, RSA 458:19-a, III: 'Term alimony shall end on the remarriage of the payee, unless the order is based on an agreement of the parties that provides otherwise.' Retirement, RSA 458:19-aa, IV: term alimony orders 'shall end upon the payor reaching full retirement age or actual retirement by the payor, whichever is later', subject to agreement, to a justice-requires finding, and to the Social Security equalization in paragraph V. Death, RSA 458:19-aa, VI, verbatim: 'Unless otherwise ordered by the court, the obligation to pay alimony ends on the death of the payee and is a charge against the estate of the payor, except to the extent that it is covered by life insurance or other security. The court may require reasonable security for the payments due the payee in the event of the payor's death prior to the completion of payments.' Read that clause carefully: alimony ends on the death of the payee, but the death of the payor does not end it. It becomes a charge against the payor's estate. Cohabitation, RSA 458:19-aa, VII and VIII: 'At the request of either party by petition or motion, the court may make orders for the modification or termination of term alimony upon a finding of the payee's cohabitation as described in paragraph VIII. The requirements of paragraph I shall not apply.' Paragraph VIII, verbatim: 'The court shall find that cohabitation exists, if there is a relationship between an alimony payee and another unrelated adult resembling that of a marriage, under such circumstances that it would be unjust to make an order for alimony, to continue any existing alimony order, or to continue the amount of an existing alimony order. In making this finding, the court shall consider evidence of any of the following concerning the payee and the other person: (a) Living together on a continual basis in a primary residence; (b) Sharing of expenses; (c) The economic interdependence of the couple, or economic dependence of one upon the other; (d) Joint ownership or use of real or personal property, including financial accounts; (e) The existence of an intimate relationship between the persons; (f) Holding themselves out to be a couple through statements or representations made to third parties or are generally reputed to be a couple; and (g) Any other factors that the court finds material and relevant.' Termination is not always the end. RSA 458:19-aa, IX, verbatim: 'If an alimony order is terminated because of cohabitation or marriage, the court may reinstate the original alimony award upon finding that the payee's cohabitation has ceased or that the marriage has ended in divorce, provided that the request is made within 5 years of the effective date of the termination order. If the alimony order being reinstated had a specific termination date, reinstatement shall not extend the termination date, however, if the order specified a number of payments, the reinstatement may be for up to the number of payments remaining in the order. If the order has both a specific termination date and a number of payments, the termination date shall control. The requirements of paragraph I shall not apply.' Sources: https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-a.htm and https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-aa.htm
Changing it later
RSA 458:19-aa, I(a), verbatim: 'The court may modify the amount or duration of a term alimony order upon agreement of the parties or, in the absence of an agreement, at the request of either party by petition or motion. If the proceeding for modification is contested, any modification shall be supported by findings of the following, based on clear and convincing evidence: (1) There has been a substantial and unforeseeable change of circumstances since the effective date of the alimony order; (2) There is no undue hardship on either party; and (3) Justice requires a change in amount or duration.' RSA 458:19-aa, I(b): 'The party requesting a modification shall have the burden of proof. Additionally, the order shall include the information required under RSA 458:19-a, VI. If the prior alimony order has ended, reinstatement shall be requested within 5 years after the end of the order.' Two protections for the payor's later earnings. RSA 458:19-aa, II, verbatim: 'In any modification of an existing alimony order, the earned or unearned income and social security payments of a spouse of the payor shall not be considered a source of income to the payor, unless the payor 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 payor only to the extent that such payor 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 payor to the extent permitted by federal law.' RSA 458:19-aa, III, verbatim: 'For the purpose of modification of an existing alimony order, any income from a second job or overtime shall be presumed to be irrelevant to an alimony modification, if the party works more than a single full time position, and the second job or overtime began after the entry of the initial order.' Reimbursement alimony is outside all of this: RSA 458:19-a, V(c), 'It shall not be modified, except by agreement.' Modification for cohabitation (VII), for retirement (V) and for reinstatement (IX) are each expressly relieved of the paragraph I clear-and-convincing test. Source: https://www.gencourt.state.nh.us/rsa/html/xliii/458/458-19-aa.htm
Worth knowing about New Hampshire
Four things. First, the tax contingency is written into the formula itself. RSA 458:19-a, II(c) fixes 23 percent because alimony is not deductible under current federal law and provides that the figure becomes 30 percent 'If alimony becomes deductible to the payor and taxable to the payee under federal income tax law'. The statute pre-decides its own response to a change in the Internal Revenue Code. Second, the modification test cuts against a payor who loses a job. RSA 458:19-aa, I(a) requires clear and convincing evidence of all three of a substantial and unforeseeable change, no undue hardship on either party, and that justice requires the change. The second element is the trap: relief that would leave the payee in hardship fails the test even where the payor's change is genuine. Third, death of the payor does not end the obligation. Under RSA 458:19-aa, VI alimony 'is a charge against the estate of the payor' unless the court orders otherwise or it is covered by security. Most states in this series end support on the death of either party. Fourth, the 2018 scheme does not reach back. RSA 458:19-aa, X(a) provides that RSA 458:14, 458:19, 458:19-a and 458:19-aa as amended or inserted by 2018, 310 'shall not apply to modifications of orders in cases whose initial petition for divorce or legal separation was filed prior to January 1, 2019' unless the original order was based on an agreement adopting the act or said the court was adopting it, and that absent such a finding 'modifications of these orders shall be controlled by the law in effect on the date the initial petition for divorce or legal separation was filed.' A New Hampshire order from a case filed in 2018 is modified under the old law, not the formula.
The tax rule changed, and most guides still describe the old one
For a divorce or separation instrument executed after 31 December 2018, alimony is not deductible by the person paying it and not taxable to the person receiving it. The Tax Cuts and Jobs Act repealed the provisions that made it otherwise. For an instrument executed on or before that date the old treatment continues — deductible to the payer, taxable to the recipient — unless it is later modified and the modification expressly adopts the new rule.
This is not a detail. Under the old rule a higher-rate payer could transfer income to a lower-rate recipient and the two of them shared the saving. That saving no longer exists, which changes what a given number is worth to each side. New Hampshire wrote the point into its own statute: its 23 per cent figure assumes non-deductibility, and reverts to 30 per cent if the federal treatment is ever restored.
New Hampshire has no state income tax, so the question of whether the state follows the federal rule does not arise. The federal treatment above is the entire picture. In four states that do levy an income tax — Arkansas, California, New Jersey and New York — it is not. The fifty-state table.
Authority: Tax Cuts and Jobs Act, Pub. L. 115-97, section 11051, repealing Internal Revenue Code sections 71 and 215; see also IRS Publication 504.The other number that decides your budget
How New Hampshire calculates child support, and the overnight count that moves it more than income does.
And the question underneath it
What New Hampshire presumes about custody, and what the judge has to weigh.
The rest of what we have written about New Hampshire. Every figure is quoted from New Hampshire’s own statute or its courts’ own published schedule, and carries the date we last checked it.