In February of 2004, the New Hampshire legislature passed a statute which barred a divorce court from ordering any non-custodial parent to pay for a child's post-secondary educational expenses. Thus, a parent's child support obligation terminates when the child reaches age eighteen or graduates from high school, whichever occurs later.

This statute, however, is not retroactive. Therefore, for court orders and agreements entered prior to February 2004 wherein the court ordered or a parent agreed to pay for a child's post-secondary educational expenses, those orders are still enforceable.

In the case of Baker and Winkler (decided September 27, 2006), the New Hampshire Supreme Court decided whether a non custodial parent's obligation to pay for an adult child's post-secondary educational expenses could be taken into account when calculating child support for a minor child. In Baker , the parties had two children. They were divorced in February of 2002. No child support was ordered, but the father agreed to pay for the costs of the children's post-secondary education.

In the summer of 2004, the youngest child decided to move in with her mother. The mother then filed a motion to modify child support. It should be noted that a child support obligation can be modified by the court every three years or earlier if the party who files the motion shows a substantial change of circumstances has occurred. A change of custody can be considered a substantial change of circumstances.

The father argued that when calculating his adjusted gross income, the court should deduct the payments he was making for the older daughter's college expenses. Under New Hampshire law, "court ordered support" is subtracted from a parties' gross income, and that adjusted gross income is used in calculating a child support obligation. The Supreme Court held that court ordered support is support that the non-custodial parent pays to "other children or former spouses." "Other children" are children from different relationships (i.e. one of the parties in the case is not the parent).

Therefore, the father was not allowed to deduct from his gross income the college expenses he was paying for his older daughter when calculating his child support obligation for the younger daughter.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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