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Negotiating Survivor Annuities

New Hampshire Divorce Lawyers Discuss Negotiating Survivor Annuities

New Hampshire divorce lawyersAccording to New Hampshire divorce attorney Michaila M. Oliveira at the Law Office of Manning & Zimmerman PLLC, New Hampshire case law gives concrete guidance on how to divide vested retirement benefits, including pensions, 401Ks, IRAs, and other retirement assets in the event of divorce. But what about those optional additional benefits that may be offered as part of a spouse’s retirement plan but may not be included in the valuation of the retirement asset for purposes of judicial division? Often these provide a benefit that can be negotiated into a divorce – either as a voluntary benefit provided to the former spouse or in exchange for some other asset/benefit.

Survivor annuities are one of the optional benefits that may be offered as part of an employee retirement plan. The importance of such a benefit is often only clear long after a divorce is finalized.  Survivor annuities are a benefit that allows a designated survivor to receive a monthly benefit equal to a defined percentage of an employee’s pension after the employee has died. The designated survivor then receives this benefit until his/her own death.

Generally, when an employer offers a survivor annuity as part of an employee’s retirement benefits package, the employee must actively “elect” or choose to purchase the annuity option. Often, election is done at the time of retirement, however, this is not true of all survivor annuities, particularly the annuity available to US military members. Survivor annuities generally come with a separate monetary cost.

The most important practical consideration for dealing with survivor annuities in a divorce is that the annuity, almost universally among the all of the particular benefit plans available, must specifically be addressed in the Decree of Divorce. If the annuity is not addressed within the Decree, then it may be near impossible for a surviving former spouse to collect the benefit – even if the parties planned for that to happen.

Below is a description of three of the more common survivor annuities that may be encountered in a New Hampshire divorce:

Federal Employees
Eligible federal government employees have the option to elect to purchase the FERS survivor annuity. There are two levels of FERS annuities – the full survivor annuity and the reduced survivor annuity.  While the term “full” survivor annuity would lead one to believe that the surviving present or former spouse would receive 100% of the employee’s pension, that is incorrect. The full annuity, at the time this article was published, pays 50% of the employee’s pension to their designated survivor after the employee’s death. The cost to elect this full survivor annuity is 10% of the employee’s pension payment per month from the date of retirement through the date of death. The reduced annuity pays 25% of the employee’s pension. The cost to elect the reduced survivor annuity is 5% of the employee’s pension payment per month from the date of retirement through the date of death. If the employee is married at the time of election, the employee will need his/her spouse’s written permission to choose anything other than the full annuity.

Federal employees may also elect not to purchase any of the FERS survivor annuity options. Again, if the employee is married at the time of election, the employee will need his/her spouse’s written permission to choose this option. An important consideration when choosing to purchase any of the FERS survivor annuities is that, after the employee’s death, if the designated surviving spouse is not receiving a survivor annuity benefit then they will not be eligible for FEHB health insurance.

State Employees
Eligible New Hampshire state government employees have the option to select a reduced pension under a “Survivorship Option” to provide a lifetime pension to a designated survivor. An employee may designate a single beneficiary or multiple beneficiaries, although this option is limited to the employee’s spouse and children. In the case of multiple designated beneficiaries, the employee must specify a distribution percentage for each beneficiary on the retirement application. Cost-wise, the amount of the reduction in the member’s retirement pension will depend on a number of factors.

State employees have a number of different survivor annuity options available to them, with police and fire employees having their own additional options beyond those available to all employees.

Of the common survivor annuity programs described in this article, the New Hampshire Retirement System has the most options available and accordingly the most variability in potential value for a former spouse.

US Military
The Survivor Benefit Plan (SBP) is the survivor annuity associated with military retired pay. If the service member or retiree dies first, the spouse or former spouse survivor is eligible to receive 55% of the selected base amount (usually the full pension) for the remainder of his or her life.

A major issue attorneys negotiating SBP benefits should be aware of is the Former Spouse SBP deadline. To effectuate coverage, the service member or retiree must file a DD Form 2656-1 with the Defense Finance and Accounting Service retired pay center within one year of the order which awards the SBP (typically the Decree of Divorce).

The New Hampshire divorce lawyers at Manning & Zimmerman Law will also consider the issue of remarriage. If the former spouse has any plans for remarriage (or even if they don’t have such plans at the time of the divorce), be sure to remind him/her about the “remarriage penalty.” Remarriage of the former spouse before he/she turns 55 suspends his/her SBP coverage. Coverage can be reinstated, however, if the remarriage ends under certain conditions.

For the service member spouse, if the former spouse is alive and set to receive SBP benefits per the parties’ Decree of Divorce, then if the service member remarries, the service member cannot elect any SBP coverage for their new spouse. If the former spouse is alive at the time of the service member’s remarriage, but the former spouse’s benefit is suspended due to his or her own remarriage, then the service member may only obtain eligibility to make a new SBP election by returning to court to obtain a modification of the prior court order requiring SBP coverage.

The New Hampshire divorce lawyers at Manning & Zimmerman Law handling divorces where survivor annuities may be an issue will be sure to research the particular requirements of the issuing employer before entering into any agreements regarding those annuities. The particular language used in the Decree of Divorce may be the difference between a surviving former spouse successfully collecting the survivor annuity and their claim being denied by the issuing employer.

Contact the New Hampshire divorce lawyers at Manning & Zimmerman Law

The New Hampshire divorce lawyers at Manning & Zimmerman Law would be pleased to discuss your matter with you and be your partner throughout the process. Our firm is experienced and prepared to deal with any situation that may arise. For a free consultation, please feel free to call us at (603) 210-4464, send us an email to info@MZLawNH.com, or reach out to us using the “contact us” or chat feature on our website.

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Manchester divorce lawyer discusses child support enforcement

Many people come to the Law Office of Manning & Zimmerman, PLLC in order to get help from a Manchester divorce lawyer with child support enforcement. When a child support order has been issued and the parent who is supposed to pay does not, there are several different things that you can do. In order to provide better help to people who are dealing with child support issues, we have addressed below some of the child support enforcement questions a Manchester divorce lawyer is most frequently asked.

What Do You Do When the Other Parent Refuses to Pay Their Court-Ordered Child Support?

Sometimes this can be avoided altogether by getting a wage assignment. However, if there is no wage assignment, or the individual is self-employed, the first step would typically be to file a Motion for Contempt. The court can issue various sanctions, including ordering jail time, to enforce the child support orders.

If Your Ex Moves to Another State, Will They Still Have to Pay Their Ordered Child Support?

To address the problem of parents moving out of state and then refusing to pay their court-ordered child support, Congress passed the Uniform Interstate Family Support Act (UIFSA). This law outlines what you can do to collect your child support from your ex in their new state. If New Hampshire has jurisdiction over your ex, you can seek to enforce your child support order through the courts here with the help of a Manchester divorce lawyer. If New Hampshire lacks jurisdiction over your ex, you can request that the court send copies of your child support order to the court in the jurisdiction in which your ex lives. You would then request that that court enforce the child support order. You can also travel to the state and personally file an enforcement action with the court or send a copy of your child support order to your ex’s employer to request a wage garnishment. Failing to pay child support to a parent in another state is treated seriously, and in 1998, Congress passed the Deadbeat Parents Punishment Act, which makes it a felony for a parent to do so.

What if Your Ex Has Simply Fallen Behind in Payments?

If your ex has fallen behind in their child support payments to you, courts treat it seriously. The court will still enforce your child support order and seek the arrearage amount owed to you. Even if your ex has sought and received a reduction in their child support payments, the reduction is not applied retroactively, and they will generally be ordered to pay you the back child support owed in full.

What Happens If You Are Paying Child Support and You Lose Your Job?

If you lose your job and are paying child support, it is important that you seek legal help quickly. The child support order will still be in effect and the payment amounts will continue to accumulate. The child support will not simply disappear when your job ends. You can file a motion to modify your child support amount with the court. Such an order would modify payments going forward (most typically from the date your ex is served with notice of the request for modification), not any arrearages. Accordingly, you should not delay in filing the request for modification and Manchester divorce lawyer at Manning & Zimmerman Law can help you with that process.

Can You Discharge Child Support Arrearage Amounts through Bankruptcy?

While many different types of unsecured debts can be discharged in bankruptcy, federal bankruptcy law specifically forbids discharging back-owed child support through such a bankruptcy petition. Since child support is meant to provide for the support of children, discharging it in bankruptcy would be contrary to public policy and is simply not allowed. Again, if you’ve had a substantial change in your financial circumstances, you can petition the court for a reduction of your payment amount, but your child support will not just simply go away or be discharged in any bankruptcy petition.

If You Got Divorced or Separated from Your Ex Some Time Ago, Will You Be Able to Get a Child Support Order that Will Apply Retroactively?

Child support orders generally are not retroactive before the filing date (there are some exceptions for infants). In the process of a divorce, the court will order child support and will have discretion in determining when the support is ordered to start.

What Happens If You Are Still Married and Your Spouse Won’t Give You Enough to Provide for Your Children?

If you are still married and living with your spouse, it is unlikely that a court will order your spouse to pay you child support. If you are married but living separately and are not receiving child support, you can file a motion for child support from your spouse. There have been a few rare cases across the country in which courts have ordered a spouse to provide financial support for their children when they are still married and living with their spouse, but such cases have had exceptional circumstances.

What If Your Ex Claims You Are in Arrears, But You Have Always Paid Them in Full and On Time?

If your ex has claimed that you are in arrears in paying your child support, it will be your burden to prove that you have made the payments, and if you are unable to prove it, you will be ordered to pay the arrearage amount claimed. This is why it is extremely important that you pay in the manner outlined in your child support order. If you are told to make your payment to the court, do so and do not make your payment directly to your ex. If you are ordered to make payments directly to your ex, never do so in cash and instead use a check or money order. Always require a receipt for your payment and save it. If your ex does claim an arrearage, you will still have to present evidence of your payments to the court, including bank records, receipts, check copies, and witnesses if needed.

Does Shared Parenting Time Mean No Child Support?

Shared parenting time is not in and of itself a reason for a reduction in child support. The court can still order the higher-earning parent to make child support payments to the lower-earning one. If you have your child half of the time and you didn’t before, your amount might be reduced depending on the circumstances of your case.

Do You Have to Pay Child Support If Your Ex Won’t Let You See Your Child?

Child support and parenting time are considered to be separate issues. Even if your ex is refusing to let you see your child, you are still legally responsible for making your child support payments as ordered. If your child’s other parent is actively preventing you from seeing your child, you can file a motion with the court to modify the orders or to hold the other parent in contempt if they fail to comply. Courts generally believe that it is in a child’s best interests to have liberal contact with both parents, and as such, judges do not like it when one parent actively prevents a child from having a relationship with the other parent. However, even if that is occurring, you must still continue paying your child support as ordered and seek relief for visitation and custody of your child through the court. Never withhold child support just because your ex is keeping your child away from you.

It can be very frustrating to have to go through issues with your child support, and you may need to seek legal help from a Manchester divorce lawyer to solve the problems you are having with child support enforcement. Parents who are owed child support and their ex has either fallen behind or is refusing to pay can get help to enforce an order and collect both future child support payments on an ongoing basis as well as any amount owed in arrearage.

What Are Support Modifications and Contempt Motions?

If you are a parent who is ordered to pay child support and you have suffered a significant change in your financial circumstances, you may need help to file a motion to modify your ordered amount with the court. If you have made all of your payments and your ex has filed a frivolous claim with the court claiming that you have not, a Manchester divorce lawyer at the Law Office of Manning & Zimmerman, PLLC can help you gather the evidence of your payments and present them to the court. Finally, if your ex is wrongfully withholding your child from you, an attorney can file a motion to hold the parent in contempt, or if you do not have a current custody and visitation order, a petition for custody or visitation on your behalf. It is important for you to continue making your child support payments as ordered even while any legal action is pending.

Contact an Experienced Manchester Divorce Lawyer

To schedule an appointment with a Manchester divorce lawyer at the Law Office of Manning & Zimmerman, call (603) 624-7200, email us at info@manningzimmermanlaw.com, or contact us by using the “contact us” form or chat feature on our website.  Also, please sign up for our monthly newsletter, Let America Know, that will help to keep you on top of issues that could affect your health, safety, and legal rights. We are also on Facebook and you can follow us on Twitter.