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New Hampshire Supreme Court Issues Order Regarding Incarceration And Child Support Modification

On Behalf of | Jul 7, 2014 | Divorce & Family

On June 13, 2014, the New Hampshire Supreme Court issued an opinion that stated that an obligor’s incarceration makes him/her ineligible for a reduction in child support. In the case of In re: Lounder, the child support obligor was incarcerated in February 2013 after he committed arson. At the time of his incarceration, he was ordered to pay $109.00 per week in child support. The obligor moved to modify his child support obligation arguing his incarceration cost him his job and therefore his job loss constituted a substantial change of circumstances. The trial court ruled that the obligor was not eligible for a child support modification because his incarceration constituted voluntary underemployment.

The Supreme Court reversed stating that under New Hampshire case law, when a person is terminated from their employment because of their own malfeasance that termination does not constitute voluntary underemployment. In short, unless it can be shown that the obligor intentionally committed a crime to escape his child support obligation, he would be entitled to a child support modification.

This opinion is not an isolated decision, but instead is consistent with a series of Supreme Court decisions in which obligors who lost their jobs after committing any number of wrongful acts (such as having inappropriate relationships with a co-worker) were still entitled to receive a child support modification. It seems counterintuitive for an obligor to be rewarded with a child support reduction after committing criminal or other inappropriate acts that resulted in a job loss. Therefore, in responding to a request for modify child support based upon an alleged job loss, the obligee should consult with an attorney who can investigate not only the reasons for the obligor’s job loss, but also investigate the obligor’s subsequent attempts to find employment. While the job loss may result in a temporary reduction in child support, if the obligor then fails to aggressively and sincerely seek work while he or she has the ability to do so, the court may still make a finding of voluntary underemployment after some period of time.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].