Persons getting divorced in New Hampshire have a choice to make on the grounds for divorce. New Hampshire is considered to be a no-fault divorce state as neither party is required to prove specific grounds to get divorced. The petitioner needs to simply state that irreconcilable differences have caused the irremediable breakdown of the marriage. (NH RSA 458:7-a). This means that the marriage is broken down and cannot be repaired. These no-fault grounds for divorce are by far the most common grounds alleged to get divorced in New Hampshire.
It is also possible to get divorced in New Hampshire based on specific fault grounds for divorce. (RSA 458:7). Those fault grounds include:
- Extreme Cruelty
- Treatment by one spouse that seriously injures the health of the other party
- Abandonment for more than 2 years
- Habitual abuse of alcohol or drugs for 2 or more years
- Conviction of a crime punishable for more than 1 year incarceration
With any fault grounds alleged, the petitioner is not only required to prove that the fault ground occurred, however, the petitioner must also prove that the fault actually caused the breakdown of the marriage. This means that if the spouse can prove the marriage was already broken down before the fault occurred, the Court will likely not find the grounds to be the fault alleged. In addition, for the fault ground to mean anything in the division of assets, the petitioner must prove that the fault caused either extreme emotional distress or a high level of financial damage. Extreme emotional distress essentially means significantly more distress than caused by a divorce in general. The petitioner typically is required to seek counseling or medical care for physical symptoms caused by the distress. The same is true with financial damage to the parties. The Court must find a significantly greater financial impact to the parties than a divorce normally would cause.
The most common fault ground for divorce is adultery. If adultery is alleged, the “co-respondent” must be named and must be served. The co-respondent is the person being alleged to have committed adultery with the spouse. Although the co-respondent is entitled to participate in the divorce process, hiring a lawyer and filing an answer, most co-respondents don’t. Most co-respondents ignore the divorce process unless and until he/she receives a subpoena to participate in a deposition or hearing/trial. Most adultery cases are proven by circumstantial evidence, which is essentially, proving time, place and manner. The petitioner is required to prove the person had the disposition to commit adultery and the opportunity to commit adultery. Most people don’t have 8 x 10 glossy photographs of their spouse in the act of adultery. Instead, most people prove adultery by establishing that their spouse had the ability to have a sexual relationship with the co-respondent, and therefore likely did. This could include evidence of their spouse spending time with the co-respondent showing affection, spending time alone in a hotel or a home or apartment with the co-respondent, late nights at work with the co-respondent, or sometimes, emails/text messages exchanged with the co-respondent, expressing their love or desire for one another. “Adultery” requires a sexual relationship. For years, a same-sex relationship was not considered adultery, even if it was sexual. That was recently changed in New Hampshire and now a same-sex relationship can be found to be adultery. The Supreme Court held that “the term ‘adultery’ is defined as voluntary sexual intercourse between a married person and someone other than that person’s spouse, regardless of the sex or gender of either person…” In re Blaisdell, 174 N.H. 187 (2021).
The second most common fault ground for divorce is extreme cruelty. The petitioner must prove that the spouse treated him/her with extremely cruelty. Generally, this involves actual physical violence but it is often accompanied by disrespectful, disparaging and/or/ threatening words destroying a spouse’s self-esteem or causing a spouse to be fearful of his/her safety or health. For example, consistently telling a spouse that he/she is useless, worthless, stupid, fat, ugly, etc., can be found to be extreme cruelty along with physical violence. Typically, there needs to be multiple incidents of physical violence as opposed to a single incident. It is not required to be constant or any specific number, however, to be extreme cruelty.
Although fault grounds for divorce will likely increase the cost, animosity and length of a divorce, if proven, the innocent spouse can be given compensation for the abuse in the form of alimony or an unequal share of assets.
In order to protect your ability to pursue fault grounds, it is important to consult with an attorney before you file a Petition for Divorce with the court. The fault ground must be properly alleged in the Petition for Divorce or in a Cross-Petition for Divorce. The attorneys at Parnell, Michels & McKay, PLLC can help you to understand whether you have fault grounds for divorce and whether it is worth alleging those fault grounds in your divorce.