If you are living in New Hampshire and are contemplating divorce, there are a number of facets about marriage dissolution that you should be aware of so that you can be prepared and make plans for life after divorce.
***If you are not living in New Hampshire and have no connection to New Hampshire you cannot come to the state for the sole purpose of attaining a divorce.***
Here are 7 facts about a New Hampshire divorce that could change your life or impact it for the foreseeable future.
- New Hampshire is a no-fault and a fault state. No-fault means that you do not have to allege any particular grounds or a basis for a divorce other than irreconcilable differences, which can merely mean that you and your spouse are no longer compatible. Parties overwhelmingly use this when filing for divorce. You or your spouse may allege fault such as abandonment, cruelty, incarceration, a felony conviction or alcoholism, generally as a means or leverage to gain child custody, a greater share of the marital property or even alimony. In a custody battle or one for assets where grounds or fault is alleged, both parties must be innocent. It is not uncommon for each side to make for accusations against the other. If the judge determines that both parties exhibited such conduct, then the fault grounds have no affect in the divorce. This can also be a costly and very public way of filing for divorce. There is no guarantee the court will use or consider the alleged grounds if it must determine custody, alimony or property distribution.
- New Hampshire divides property according to the principle of equitable division of property. Most states use this method of distributing the marital estate in a divorce. While the court starts out with the assumption that the parties share equally in the division of assets and debts, a judge will listen to arguments from your or your spouse’s divorce lawyer about why one party should receive more assets because of certain inequities in the parties’ financial status. While you and your spouse can decide on how the assets and debts should be divided, the court will intervene if there is no resolution. Factors the court considers include:
- Duration of the marriage
- Economic circumstances of both parties
- Ability of custodial parent to find and engage in suitable employment without interfering with the interests of the minor children
- If one spouse delayed or gave up a career or education so as to advance the career of the other
- The contribution of each spouse to the marriage including one party devoting more time to parenting and any significant disparities
- If a party intentionally destroyed, depleted or wasted assets during the marriage
- Tax consequences
- Other relevant factors
The best method is, of course, compromising with your spouse and not allowing the court to determine how your property and debts are to be distributed or neither side usually is satisfied.
- There are 3 ways to divide the equity in the marital home. Equity in the home is determined as of the date of separation, which may not be so obvious if there are ambiguities or disagreements as to when this occurred. Once the market value is agreed upon, usually with a real estate appraisal, then the mortgage, liens, loans and taxes owed are deducted to arrive at the equity. The 3 options at this point are:
- Sell the home and divide the proceeds
- Refinance and buy out the other spouse
- The custodial parent remains in the house with the minor child with its exclusive use and possession sometimes until the minor children turn 18 or graduate from high school at which time the house is sold and the proceeds divided equally or one spouse buys out the other. In other cases the court will order that the sale or buyout occur earlier.
- Alleging adultery as grounds for divorce may not be what you imagined. Adultery, until recently, was a crime in New Hampshire although not prosecuted for many years. It is a fault grounds for divorce. However, you must prove that your spouse had consensual marital relations with another person of the opposite sex. The state supreme court ruled in 2003 that relations with someone of the same sex was not considered adultery. New Hampshire does not bar a party from receiving alimony, or spousal maintenance, if adultery is proved, nor may it necessarily award the innocent spouse a greater share of the assets. A court is more likely to take adultery into account if a spouse depleted the marital assets by spending it on the co-adulterer to the detriment of the family and children or if the minor children have been exposed to the affair. Also, the co-adulterer has to be named as a party in the proceeding, adding an extra layer to an already volatile situation and undoubtedly increasing legal fees and causing undue embarrassment to all parties. Talk to your divorce lawyer whether this strategy would be to your advantage.
- Mothers do not always get custody of the children. Contrary to popular belief, fathers have an excellent opportunity to get primary custody of their children if the court determines it is in the best interests of the child. Courts favor joint custody as much as possible but one parent may be the primary custodian, especially if they live in separate communities. A court will look at a variety of factors:
- Mental and physical health of the parents
- Age, maturity, health and sex of the child
- Each parent’s ability to provide a stable, healthy and nourishing environment
- The child’s established routine
- Lifestyle of the parents
- Emotional bond between child and parent
- Childs’ preference if the child is of sufficient maturity to provide input.
If all else is equal, the court may consider the parent who has been the primary caregiver, who will be more adept at fostering the relationship with the other parent and who may have some advantage in providing more continuity in the child’ education, peer relationships and community activities.
- Alimony is not routinely granted. To qualify for spousal maintenance, or alimony, one spouse must not have enough resources to sustain the same lifestyle enjoyed during the marriage; the paying spouse must be able to afford both parties’ needs and the recipient spouse be unable to support him or herself or has a child that makes such self-sufficiency very difficult. A court will look at these factors as well:
- Duration of marriage
- Income of each spouse
- Employability of each
- Age, health and economic status of each party
- Ability to acquire assets in the future and income
- if certain conduct led to the divorce and how it affected the parties
- tax consequences
The alimony payments may be temporary or can last indefinitely.
- Mediation can minimize costs and litigation in many cases. If you are considering divorce or proceedings have already begun, mediation is a resource that often works to resolve contested issues of custody, support and property distribution. A neutral third party, who may be a retired judge or experienced divorce lawyer, can facilitate compromise between the parties and iron out a parenting plan or property distribution strategy. This method should be used at the earliest stages of a divorce as it can save substantial legal fees and minimize tensions between the parties, leading to a more satisfactory resolution and a more peaceful future and life, especially if minor children are involved.