Most-Significant-Relationship Choice of Law Governs Classification of Foreign Structured-Settlement Annuities in NH Divorce; Alimony Must Reflect Property Division and Health-Based Earning Limits

I. Introduction

In the Matter of Whitehead & Whitehead, 2026 N.H. 13 is a New Hampshire Supreme Court divorce decision addressing two recurring family-law problems in a mobile, cross-border economy: (1) which jurisdiction’s law determines whether a foreign-connected financial stream (here, a Canadian structured-settlement annuity) is divisible marital property, and (2) how courts must evaluate alimony when a property division substantially affects the parties’ incomes and when a spouse’s health conditions may limit earning capacity.

The parties, Kerri Whitehead (Wife) and Michael Whitehead (Husband), married in 2004 and later moved to New Hampshire in 2014. Husband, injured in a 1999 Ontario motor-vehicle accident (partial quadriplegia), received settlement proceeds via structured settlement annuities owned by a Canadian insurer. In the divorce, the trial court: (a) awarded Husband the annuity established pre-marriage (the “first annuity”), (b) divided equally the annuity established during the marriage in 2010 (the “second annuity”), and (c) denied both parties’ alimony requests.

Husband appealed, arguing primarily that Ontario law should control whether the second annuity was divisible, and that if the annuity were divided, he should receive alimony.

II. Summary of the Opinion

  • Choice of law / property division affirmed: The Supreme Court held the trial court properly applied New Hampshire law—not Ontario law—to classify the second annuity as divisible property. Under New Hampshire law, a personal-injury settlement or award obtained before divorce is divisible regardless of its compensatory purpose.
  • Alimony denial vacated and remanded: The Court held the trial court unsustainably exercised discretion by denying Husband alimony without considering: (a) how dividing the second annuity altered each party’s income, and (b) how Husband’s health and anticipated medical needs could affect his earning capacity and expenses (even absent expert testimony).

III. Analysis

A. Precedents Cited

1. Choice-of-law framework: from Clark factors to Second Restatement “most significant relationship”

  • Bartlett v. Commerce Ins. Co., 167 N.H. 521 (2015): Used to restate New Hampshire’s general conflicts methodology—first determine whether the rule is substantive or procedural, and if substantive, apply the forum’s choice-of-law approach. Whitehead adopts Bartlett’s threshold framing to characterize marital-property classification as substantive.
  • In re M.M., 174 N.H. 281 (2021): Cited for the substantive/procedural distinction (“substantive” creates/defines rights; “procedural” prescribes methods of enforcement). This supports treating the marital-property classification question as substantive because it determines whether Wife may receive the annuity stream under RSA 458:16-a.
  • Clark v. Clark, 107 N.H. 351 (1966): The seminal New Hampshire case listing five “choice-influencing considerations.” Whitehead acknowledges the parties briefed Clark, but ultimately pivots away from Clark’s multi-factor analysis for the question presented.
  • Glowski v. Allstate Ins. Co., 134 N.H. 196 (1991) and Consolidated Mut. Cas. Co. v. Radio Foods Co., 108 N.H. 494 (1968): Together stand for the proposition that New Hampshire’s post-Clark cases—especially contract cases—often use the Restatement (Second) of Conflict of Laws, including the “most significant relationship” test, because Clark’s considerations can provide insufficient guidance. Whitehead relies on this line to justify using the Second Restatement methodology.
  • Flaherty v. Flaherty, 138 N.H. 337 (1994): Cited to note New Hampshire will respect express choice-of-law provisions in financial instruments (there, a spendthrift trust). Whitehead uses Flaherty to underscore a key absence: Husband identified no express annuity contract term selecting Ontario law.
  • In the Matter of Geraghty & Geraghty, 169 N.H. 404 (2016): A family-law conflicts case used as a bridge between Clark and a contract-like expectations analysis. Although Geraghty applied Clark because the parties did not challenge it, it treated “predictability of results” as relevant because marriage involves “contractual or similar consensual transactions.” Whitehead uses this to legitimize framing marriage as a “marital contract” for conflicts purposes.
  • Clark, 143 N.H. 555, 556-59 (1999): Cited for the proposition that the “subject” of the choice-of-law inquiry is the parties’ marital relationship (the marriage agreement) giving rise to equitable claims, rather than the insurer’s contractual obligations.

2. Expectations, mobility, and the marital domicile

  • Powell v. Powell, 97 N.H. 301 (1952): Quoted for the core understanding that marriage contemplates a life together—supporting the Court’s reasoning that spouses must foresee relocation.
  • Potter v. Rosas, 111 N.H. 169 (1971): Cited for “the mobility of modern life,” reinforcing that couples can reasonably expect future domicile changes and, with them, application of the law of their shared residence to divorce incidents.

3. Property-situs analogies: real property vs. intangible payment streams

  • Boucher v. Boucher, 131 N.H. 377 (1988): Distinguished. Boucher applied Vermont law to determine whether there was a divisible equitable interest in Vermont real estate. Whitehead explains real property is “kept and used” where located; the annuity stream, by contrast, supported a New Hampshire household and the Canadian insurer is merely a payment vehicle.
  • In re Estate of Rubert, 139 N.H. 273 (1994): Used by analogy: real property passes under the law where it lies; personal property passes under the law of domicile—supporting application of New Hampshire law to an intangible payment stream tied to the parties’ New Hampshire domicile.

4. Divisibility of personal injury settlements under RSA 458:16-a

  • In the Matter of Preston and Preston, 147 N.H. 48 (2001): Central merits precedent. Preston holds a personal injury award/settlement obtained prior to divorce is divisible marital property “regardless of the underlying purpose of the award or the loss it is meant to replace,” including a settlement annuity. Whitehead relies on Preston to conclude the second annuity is divisible once New Hampshire law applies.
  • In the Matter of Earley & Earley, 174 N.H. 220 (2021): Cited in a clarifying footnote: unlike spendthrift trust interests excluded by statute, restrictions on transfer in the annuity contract do not prevent classification as divisible property under RSA 458:16-a, I. Earley is used to show the dividing line is statutory text, not generalized anti-assignment language.

5. Alimony: required findings, income/need focus, and health-based earning limits

  • In the Matter of Routhier & Routhier, 175 N.H. at 15: Cited for standards of review (unsustainable exercise of discretion) and for the requirement that, in contested proceedings, an order denying alimony must include findings supporting denial (RSA 458:19-a, VI(b)(1)).
  • In the Matter of Cohen & Richards, 172 N.H. 78 (2019): Cited for deference to trial-court credibility and weight determinations—important because the remand is not a directive to credit Husband, but a directive to address the income-shift and health implications.
  • In the Matter of Fowler and Fowler, 145 N.H. 516 (2000): Cited to define “reasonable needs” broadly: not limited to bare necessities and must reflect the marital standard of living and both parties’ financial status.
  • Thayer v. Thayer, 119 N.H. 871 (1979): Cited to reject Wife’s argument that certain reimbursements should count as income; reimbursements for travel/business expenses are not a net accession to wealth for alimony/child support purposes.
  • Murphy v. Murphy, 116 N.H. 672 (1976) and Marsh v. Marsh, 123 N.H. 448 (1983): Used to refute the trial court’s implication that expert testimony is necessary to consider health-related earning restrictions. These cases recognize that credible testimony about health and disability can and should inform alimony.
  • In the Matter of Nassar & Nassar, 156 N.H. 769 (2008) and Rubin v. Rubin, 527 A.2d 1184 (Conn. 1987): Nassar is distinguished. It prohibits relying on speculative, uncertain third-party gifts (such as anticipated parental assistance). Whitehead holds the trial court may consider Husband’s own capacity for future remunerative activity (coaching/speaking) because that is a standard rehabilitative-alimony inquiry, not a speculative expectancy of a donor’s largesse.

B. Legal Reasoning

1. What “law” is being chosen: the annuity contract vs. the marriage contract

A key analytic move is the Court’s identification of the true object of the conflicts inquiry. Husband framed the issue around Ontario’s relationship to the annuity: the insurer, the lawsuit, and the accident location. The Court instead focused on the source of Wife’s claim: not enforcement of annuity terms against the insurer, but Wife’s equitable claim arising from the marital relationship. The decree contemplated that Husband could redirect payments upon receipt; it did not purport to rewrite insurer obligations. This characterization supports treating the case as centered on the marital contract, not the annuity contract.

2. From Clark to the Second Restatement: selecting the governing approach

Although New Hampshire has long recognized the Clark five-factor “choice-influencing considerations,” Whitehead holds that where the legal relationship resembles a consensual contract (here, marriage), New Hampshire’s modern conflicts practice—reflected in Glowski and Consolidated Mut. Cas. Co.—supports using the Restatement (Second) “most significant relationship” test. The Court uses Geraghty to show that even within family law, expectations/predictability analysis is naturally contract-like.

3. Applying “most significant relationship” to the marriage

The Court then identifies New Hampshire as the jurisdiction with the most significant relationship to the marriage because:

  • The parties moved to New Hampshire in 2014, built a home, and raised their family there.
  • The annuity funds were used to support the New Hampshire household and for long-term family financial planning.
  • Ontario, despite Husband’s injury and settlement connections, had minimal connection to the parties’ marriage: they did not marry there and did not live there together.

The Court also addressed the “expectations” argument: even if the parties married in Maine, they could reasonably anticipate that divorce incidents would be governed by the law of a future shared domicile, given modern mobility (Powell; Potter). Conversely, it would be unreasonable to expect the divorce property classification to be governed by a jurisdiction where the couple never lived together as spouses.

4. Merits under New Hampshire law: personal injury settlement annuities are divisible

With New Hampshire law selected, the Court applied RSA 458:16-a, I and Preston: property divisible at divorce includes “all tangible and intangible property and assets” belonging to either spouse, and personal-injury settlements/awards obtained before divorce are divisible regardless of purpose. Thus, because Husband secured the second annuity before divorce, it is marital property subject to equitable division.

5. Alimony: the denial must reflect the post-division financial reality and health constraints

Whitehead’s alimony holding is methodological: the trial court must connect the statutory alimony criteria to the actual financial picture after equitable distribution. Husband’s income included annuity payments; dividing the second annuity necessarily reduces his income and increases Wife’s. Yet the trial court’s alimony analysis referenced the parties’ pre-division incomes and concluded they enjoyed a high standard of living based on “equally comfortable salaries.” Because alimony is based “primarily upon the parties’ income and need” (Routhier) and must consider “reasonable needs” in light of marital lifestyle (Fowler), failing to account for the income shift was an unsustainable exercise of discretion.

The Court also required the trial court to consider Husband’s health evidence on remand: it rejected the notion that future health impacts can be deferred to later modification proceedings because RSA 458:19-aa addresses “substantial and unforeseeable” changes after the order—whereas Husband’s testimony concerned anticipated, foreseeable developments (retirement due to shoulder pain; likely need for nursing assistance as he ages). Murphy and Marsh establish that courts must consider health and restricted earning ability even without expert testimony.

C. Impact

  • Conflicts-of-law clarity for divorce property classification: The decision signals that where classification of property as “marital” turns on rights arising from the marital relationship—especially for intangible assets—New Hampshire will likely use a Second Restatement “most significant relationship” analysis focused on the marriage, not on the asset’s foreign administrative or historical connections.
  • Predictability for cross-border structured settlements: Parties living in New Hampshire should expect New Hampshire’s broad marital-property definition under RSA 458:16-a to apply to personal-injury settlement annuities obtained before divorce (consistent with Preston), limiting attempts to import foreign exemption regimes via conflicts arguments.
  • Stronger discipline in alimony findings: Whitehead reinforces that alimony determinations must be anchored in the post-division income/property reality and must account for health-related earning limitations and foreseeable expense increases—particularly important where one spouse has a significant disability and property division affects income streams.
  • Limits on “modification will fix it later” reasoning: Trial courts cannot avoid present analysis of foreseeable health/economic changes by pointing to later modification, because modification requires unforeseeability under RSA 458:19-aa.

IV. Complex Concepts Simplified

  • Structured settlement annuity: Instead of receiving a single lump sum from a lawsuit settlement, the injured person negotiates periodic payments funded through an annuity. In divorce, the question is whether those payment rights count as property that can be divided.
  • Divisible marital property (RSA 458:16-a): New Hampshire broadly includes almost all property owned by either spouse before divorce—tangible or intangible. Under Preston, even personal-injury settlement proceeds are not automatically excluded because they compensate pain, suffering, or future medical needs.
  • Choice of law: When more than one jurisdiction has connections to an issue, courts decide which jurisdiction’s law applies. Whitehead emphasizes looking at which place has the “most significant relationship” to the marriage when the claim arises from the marital relationship.
  • “Most significant relationship” test (Second Restatement): A pragmatic conflicts approach selecting the law of the jurisdiction most connected to the relationship and dispute—here, New Hampshire as the couple’s long-term marital domicile where the annuity supported family life.
  • Alimony (RSA 458:19-a): Financial support after divorce based primarily on income and need, considering reasonable needs in light of the marital standard of living. When contested, a denial must include findings explaining why statutory criteria are not met.
  • Modification of alimony (RSA 458:19-aa): A later change to alimony requires, among other things, a “substantial and unforeseeable” change in circumstances; foreseeable developments should be considered at the outset.

V. Conclusion

Whitehead establishes two important guideposts for New Hampshire divorce practice: first, when deciding whether a foreign-connected payment stream is divisible marital property, the governing law is determined by the jurisdiction with the most significant relationship to the marriage—often the spouses’ shared domicile—rather than by the foreign jurisdiction’s ties to the underlying injury, lawsuit, or insurer. Second, when alimony is requested in a contested case, the trial court must make findings that reflect the post-property-division financial reality and must meaningfully consider credible evidence that health conditions may restrict earning capacity and increase needs, without relegating foreseeable developments to later modification proceedings.