Background
Michael Whitehead suffered a spinal cord injury in a 1999 car accident in Ontario, Canada, leaving him a partial quadriplegic. He settled two resulting lawsuits through structured settlements, receiving monthly payments from two annuities owned by a Canadian insurer. The first annuity was established in 2003, before his 2004 marriage to Kerri Whitehead; the second was established in 2010, during the marriage, and runs through 2035. The parties relocated to New Hampshire in 2014 and used the annuity income to support the household. Wife initiated divorce proceedings in 2021.
The Circuit Court (Curran, J.) awarded Wife an equal share of the second annuity’s payments, reasoning that the first annuity — obtained before the marriage — should remain entirely with Husband. The court denied both parties’ requests for alimony, finding that both enjoyed comfortable incomes. Husband appealed, arguing that Ontario law should govern the annuity’s divisibility (and would bar division of personal-injury settlement funds), and that the court erred in denying him alimony once it had reduced his income by splitting the second annuity.
The New Hampshire Supreme Court requested supplemental briefing on the choice-of-law question and heard oral argument on September 30, 2025.
The Court’s Holding
The court affirmed the trial court’s application of New Hampshire law. Treating the marriage itself as the relevant “contract,” the court applied the Second Restatement’s “most significant relationship” test rather than the five-factor Clark analysis used in ordinary conflicts cases. Because the parties lived, built a home, and managed their finances in New Hampshire for the bulk of the marriage — and Ontario had no connection to the marriage itself — New Hampshire had the most significant relationship to the marital contract. Under New Hampshire law, a personal-injury settlement annuity obtained before divorce is divisible marital property regardless of its purpose, so the second annuity was properly subject to equitable division. The court also rejected Husband’s reliance on Boucher v. Boucher, distinguishing real property permanently situated in a foreign jurisdiction from annuity payments that functionally supported a New Hampshire household.
On alimony, the court vacated the denial and remanded. It found an unsustainable exercise of discretion on two grounds: first, the trial court assessed the parties’ relative incomes without adjusting for the very division of the second annuity it had just ordered, which materially reduced Husband’s monthly income and increased Wife’s. Second, the trial court improperly dismissed Husband’s uncontradicted testimony about his impending retirement from the Canadian Paralympic rugby team and his anticipated need for full-time nursing care as he ages — discounting it solely because no expert corroborated it. Prior New Hampshire precedent establishes that a party’s own testimony regarding health and restricted earning ability must be considered in alimony proceedings even without expert support. The court held, however, that the trial court did not err in considering Husband’s potential to earn income through coaching or speaking engagements, as such an inquiry is a proper part of any alimony analysis.
Key Takeaways
- When dividing marital property in a New Hampshire divorce, courts apply the Second Restatement “most significant relationship” test to the parties’ marriage contract — not the law of the jurisdiction that issued or administers a financial instrument — so a Canadian-owned structured-settlement annuity is subject to New Hampshire equitable-distribution rules if New Hampshire was the marital domicile.
- Under RSA 458:16-a, I, a personal-injury structured-settlement annuity obtained before the divorce decree is divisible marital property in New Hampshire regardless of its compensatory purpose or contractual restrictions on the recipient’s ability to transfer or pledge the annuity.
- A trial court that divides a major income-producing asset must account for that division when ruling on a simultaneous alimony request; failing to do so is an unsustainable exercise of discretion requiring remand.
- A party’s own credible testimony about health limitations and anticipated medical needs is sufficient to require consideration in an alimony proceeding — expert testimony is not a prerequisite — and a court cannot simply defer such concerns to a future modification proceeding when the conditions are foreseeable at the time of the original order.
Why It Matters
This decision clarifies New Hampshire’s choice-of-law framework for foreign financial instruments in divorce proceedings. By anchoring the analysis to the marital relationship rather than to the domicile of a payor or insurer, the court signals that the residency-based equitable-distribution regime will generally govern assets that supported the marital household — regardless of where those assets originated or who holds legal title to the underlying contract. Attorneys representing clients with cross-border structured settlements, trusts, or similar instruments should not assume that a foreign jurisdiction’s protective rules will shield those assets from division in a New Hampshire divorce.
The alimony holding carries equal practical weight. It reinforces that income-redistribution orders (property division and alimony) must be evaluated together, not in isolation, and that a spouse’s documented disability and health trajectory must be weighed in the initial alimony determination — not treated as a contingency to be addressed only if circumstances worsen after the decree. Practitioners representing disabled or chronically ill clients should ensure that the record at the final hearing fully documents anticipated healthcare costs and employment limitations, even without expert witnesses.