Divorce is an area of family law that frequently delves into the sensitive foundation of the parties’ relationship. Some clients come in emotional, hurt, and raw, looking to determine the exact cause of their divorce. However, fault-based divorces are difficult to prove in and of themselves. Moreover, parties must prove that the alleged fault was the exact and only cause of the breakdown of the marriage. Even when the parties are convinced they can achieve a fault-ground divorce (like adultery), there are a number of traps and pitfalls for potential Petitioners. The defense of “recrimination” is one such example. As a practical matter, this defense is frequently conjoined with a cross-petition for a fault-ground divorce to help support this legal defense.
In August of 2016, the New Hampshire Supreme Court considered the application of recrimination for fault-ground divorces, especially in the fault ground of adultery. Under RSA 458:7, “[a] divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of” the statutorily-listed causes. In short, a fault-based divorce means that the guilty party loses their right to determine the outcome of the divorce. However, innocent in this statute is a legal term meaning “free from guilt”. Rockwood v. Rockwood, 105 N.H. 129, 131 (1963). As applied to RSA 458:7, it was accepted that parties must come into the divorce with clean hands in order to properly maintain a fault-based divorce. As mentioned, the defense to a fault-ground divorce is recrimination. Recrimination simply means that the allegedly innocent party is “guilty of an offense against the other spouse, which would be grounds for divorce.” Id. The question before the Court was based on the timing and use of this defense. The Court considered whether one must maintain clean hands through the entire Court proceeding, instead of only prior to the time of filing.
In the Matter of Ross and Ross, the Court determined that parties must remain their innocence in order to maintain their fault-ground divorce. 2016 N.H. LEXIS 184, *1 (Aug. 23, 2016). The parties’ divorce lasted for four years. Id., at *2. Both parties alleged fault-grounds at the start of the divorce proceedings. Id. Neither party disputed that the Respondent, who alleged adultery as a fault-ground for divorce, began a sexual relationship with another partner after the divorce proceedings began. Id., at *5. The Court decided that causation, or the reason for the breakdown of the marriage, is not an element of recrimination. Id., at *6. As a legal defense, recrimination is a simple question of whether a party is guilty of actions that would lead a Court to grant a fault-ground divorce in accordance with RSA 458:7 against them. In short, recrimination only requires a party to prove the other party is not innocent at any time during the divorce proceedings. See Rockwood, 105 N.H. at 131.
It is worthwhile to combine the facts and the law in summarized terms. The parties were still technically married. One party engaged in a sexual relationship after the divorce began with someone other than his spouse. He was guilty of adultery as a legal definition. Thus, his fault claims were dismissed on the basis of recrimination. The Court does not care if that instance of adultery could not have possibly caused the breakdown of the marriage. One may say, as the Respondent attempted to argue, that this is a wholly unreasonable result. In an interesting moment of self-reflection, the Court at least addressed that their resolution of this matter might lead to impractical resolutions. However, the Court indicates that it is the New Hampshire Legislature’s job to address the concerns of public policy.
Divorces are difficult enough. It is important to choose an attorney that will attempt to work with all parties to find an equitable and reasonable solution whether it be through collaboration or litigation.

At Parnell, Michels & McKay we seek to guide people through the toughest times of their lives by providing sound legal advice steeped in the practical necessities particular to a client’s life. If you are interested in learning more about divorce, or have questions and concerns about family law, please contact us to learn more. We want to help.