Devine Millimet | NH Law Firm

FAULT VERSUS NO FAULT DIVORCE IN NEW HAMPSHIRE

When you file for divorce, you must assert a fault ground or irreconcilable differences as the reason for the failure of the marriage.  If you assert irreconcilable differences, then your divorce is considered a “no fault divorce.”   
           
Under New Hampshire law, a divorce can be granted “in favor of the innocent party” for any of the following fault grounds:

Either party was impotent;

Either party committed adultery;

Either party was physically or emotionally cruel to the other;

Either party was convicted, in any state or federal district, of a crime punishable with imprisonment for more than one year and was actually imprisoned under such conviction;

Either party has been absent for two years during the marriage, and has not been heard of;
Either party has joined a religious sect or society, which professes to believe the relation of husband and wife is unlawful, and has refused to cohabit with the other party for 6 months during the marriage;

Either party has, without sufficient cause, and without the other party’s consent, abandoned and refused, for two years during the marriage, to cohabit with the other. 

The above fault grounds are contained in the New Hampshire Revised Statutes Annotated Chapter 458, Section 7.

To obtain a fault ground divorce, a party must be “innocent.”  If the person seeking a fault ground divorce has committed a fault ground themselves, then they may be unable to obtain a fault ground divorce.   The person seeking a fault ground divorce has to show that the fault occurred, led to the breakdown of the marriage and resulted in financial or emotional damage.

When a party seeks a fault ground divorce, they will want to consider seeking a no-fault divorce as an alternative.   This will ensure that the party obtains a divorce from their soon-to-be ex-spouse in the event they cannot prove all three prongs of their fault ground claim.  

Most commonly, a party seeks a fault ground divorce because a fault ground, if proven, may result in the prevailing party receiving a greater share of the marital property than their soon-to-be ex-spouse or an adjustment in alimony.  Also, fault could potentially be relevant to parental rights and responsibilities with their children in some situations. 

Whether to file for a fault ground divorce requires a careful analysis.  Fault grounds are difficult to prove.  In addition, even assuming a fault ground is proven, it may not make a difference in the division of marital property and/or in the allocation of parental rights and responsibilities with any children.  A party may also be able to obtain a greater share of the marital property and/or an adjustment of parental rights and responsibilities without seeking a fault ground divorce. 
 
Finally, seeking a fault ground divorce will likely create acrimony between you and your soon-to-be ex-spouse.  It will make it more likely that your divorce will be contested rather than amicable.  The difference between an amicable divorce versus a contested divorce is significant in terms of legal fees, the time it takes to complete and how the acrimony may impact you.

When deciding whether to file a fault ground divorce versus a no fault divorce, it is important that you have the assistance of a competent attorney.  Please contact our office if we can assist you with an upcoming divorce.  
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