As discussed in a recent blog article, the New Hampshire Supreme Court In re the Estate of Couture determined that a constructive trust may be used to reach proceeds from an ERISA benefit after the beneficiary receives the payment. In rendering its decision, the Couture court also discussed the standard needed for the trial court to impose a constructive trust…
The Employee Retirement Income Security Act of 1974, commonly referred to as “ERISA” is a federal statute that governs many employer-based benefits such as pensions, IRAs, 401(k)s and other retirement benefits as well as employer-provided insurance benefits such as life insurance, health insurance, dental insurance, disability insurance, etc. Because ERISA is a federal statute, it preempts state law governing similar…
Concierge Medicine is a system in which the doctor or the practice limits the number of patients in the practice and in exchange for this the patient pays an annual fee. Traditionally this type of practice was limited to the wealthy that were making the decision that an annual fee was worth the increased access. The passage of the Patient…
In a divorce case, the parties’ retirement accounts, such as IRA, 401k, pension plans are often divided between the divorcing spouses. The final divorce decree will usually contains language that states one spouse releases the other from any claim they may have against the others estate. However, this language does not change who the spouse designates as a beneficiary for…
When buyer of a business is a victim of fraud by the seller, New Hampshire law generally provides two alternatives for recovery. When a party enters into an agreement in reliance upon a misrepresentation of material fact, he may either seek to rescind the agreement or proceed with the transaction and then sue for misrepresentation. See Green v. Sumner Properties,…
How many companies hire independent contractors and allow them access to all the company information; probably more than you think. In a recent Massachusetts Superior Court case, C.R.T.R., Inc. v. Lao, et al. the court granted summary judgment to the defendant independent contractor stating that because the company did not require him to sign a confidentiality agreement, the company could…
The centuries-old doctrine of res ipsa loquitur, meaning “the thing speaks for itself” is still a rule of law applied in courtrooms across the State of New Hampshire and the Commonwealth of Massachusetts. When the doctrine is applicable in a case, proof of circumstances attending an accident is by itself sufficient to justify a verdict and a finding of negligence…
Determining the parties’ income is a crucial factor in awarding alimony. A party’s past income and earnings is directly relevant to determining if he or she has the ability to pay alimony. Specifically, in assessing ability to pay alimony, the trial court may consider not only present income, but prior income and earning potential. Just because a party produces a…
In making a decision on residential responsibility or custody, New Hampshire courts use the best interest of the child standard. By statute, the New Hampshire court may consider the following factors in determining what is in the child’s/children’s best interest: (a) The relationship of the child with each parent and the ability of each parent to provide the child…
State law mandates that automobile insurance carriers provide uninsured/underinsured motorists coverage, commonly referred to as “UM coverage”, in an amount equal to the bodily injury limits contained in the policy. By way of example, if the person buying insurance has coverage in the amount of $100,000.00 for bodily injury caused to others, state law requires that the auto insurer also…