Ross v. Ross: Celibacy pending adultery claim

On August 23, 2016, the New Hampshire Supreme Court issued an opinion in the . It is a fascinating case about adultery and new relationships during a divorce. The outcome is a cautionary tale for persons seeking fault grounds for divorce.  

The Facts

Husband and wife met in dental school and later married. Husband, who had his own endodontist practice, helped his wife open and build her orthodontist practice. Considerable money was put into the venture. The couple separated the day that husband discovered wife was having an affair with another dentist. Wife filed for divorce 5 days after the parties separated alleging both fault and irreconcilable differences as grounds. Husband cross-petitioned for divorce on fault-based grounds, due to the wife’s alleged adultery and irreconcilable differences. The parties had been married for 9 years at the time they filed for divorce.

Approximately 11 months after the divorce was file, husband began a sexual relationship with the ex-wife of the dentist wife was dating. Wife filed a motion to dismiss the adultery grounds pled against her. She argued the defense of recrimination, or in other words that the husband was no longer an “innocent spouse” because of his own adultery. The trial court agreed with wife and dismissed the husband’s fault grounds. The trial court issued a decree of divorce based on irreconcilable differences that divided the property with an intent to split it equally.

The Appeal

Husband appealed the dismissal of the fault-based ground in his cross-petition for divorce, arguing that his sexual relationship, which occurred eleven months after the parties’ separation, could not be used as a basis for the defense of recrimination. Husband asserted that such a holding would require parties to remain celibate during years of litigation in a contentious divorce. Wife argued the trial court did not err in granting the motion to dismiss because the respondent was not an “innocent party” within the meaning of the statute. RSA 458:7 (2004).

The Court examined RSA 458:7, which states that a divorce “shall be decreed in favor of the innocent party.” The statute requires that one be an “innocent party” at the time of the decree. The statute makes no exception for fault based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition. Therefore, the trial court correctly considered Husband’s post-petition conduct when deciding the motion to dismiss.
The Court further stated the fact that Husband’s adultery did not lead to the breakdown of the marriage does not bar recrimination as a defense, stating “Causation is not an element of the defense of recrimination.”

The Court affirmed the trial court’s decision to dismiss the fault grounds and grant a divorce on irreconcilable differences.

The Takeaway

The conclusion of husband’s brief argues: “It is not reasonable to suggest, in these times of protracted discovery and litigation, that a party to a divorce must remain celibate for the duration of the proceedings – here already longer than four years.” I happen to agree with him. Litigation can be a long and arduous process. While most divorces will settle within 6 months to 1 year, a small percentage can drag on. The longest divorce I have seen from start to finish has been 5 years. That is a long time to wait to date.

Why pursue the adultery grounds in the first place? It appears in this case that there was some significant bad blood between the parties. Husband had helped wife open her orthodontic practice and contributed financially and emotionally to that endeavor. In return, wife carried on an affair with a colleague for approximately five years. Wife changed the locks to the house two days after husband left. Husband may have been pursuing the emotional victory of a fault based divorce for wife’s cheating.

Husband may also have been pursuing the adultery grounds for the financial benefit. RSA 458:16-a, II provides that a court may divide property unequally when it would be appropriate and equitable to do so after considering one more of the statutory factors. One of the factors reads:  “The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and: (1) Caused substantial physical or mental pain and suffering; or  (2) Resulted in substantial economic loss to the marital estate or the injured party.” With the dental practices, marital home and savings and investments on the line, an uneven split make a substantial difference in the outcome.

However, in my experience, most judges are not persuaded to award a significantly higher portion of the property to the “innocent spouse,” even if they can prove that the adultery caused the breakdown of the marriage and substantial economic loss to the marriage or injured spouse. More than a 45/55 split without other contributing factors would be unusual.

The moral of this story is that there must be a careful cost benefit analysis when filing adultery. Is the litigant willing to remain celibate no matter how long the litigation takes? Is there substantial property up for division that would make even a small deviation from 50/50 worthwhile? Is the time, money and celibacy for a finding that the other spouse cheated sensible?

 

Raybeck and Raybeck: Providing a definition of cohabitation

The Facts

Husband and Wife divorce after forty-two years of marriage in 2005. The divorce decree divides the property and requires the Husband to pay $25,000 per year for ten years. However, the decree provided that alimony would stop if the Wife cohabitated with “an unrelated adult male.”

In 2010, the Wife moved from her home, and rented it to reduce her expenses. She moved into the upper level of a single family home that was owned by a man she met through an online dating service. The man lived on the lower floor, and they had shared space on the middle floor of the home. The Wife did not pay rent, but she did pay $300 per month for food and often cooked for him.

The Husband stopped paying alimony when he learned of the move, and Wife sought enforcement of the alimony obligation. The trial court ruled that the Wife was not cohabitating under the terms of the decree and enforced the alimony obligation.

The Appeal

The Husband appealed the trial court’s order, initially arguing that the trial court erred in concluding that the Wife was not cohabitating. However, at oral argument the Husband abandoned that argument, and instead argued that the trial court did not a have a workable definition of cohabitation and urged the court to adopt a standard.

The Holding

The Supreme Court defines cohabitation as “a relationship between persons resembling that of a marriage.” Whether two people are cohabitating will depend on the facts and circumstances of each particular case. The Supreme Court offered guidance on factors to be considered:

  • Whether the couple is living together continually
  • What the financial arrangements between the couple are and to the extent that they are entangled, including whether there are shared expenses, to what extent one supports the other, whether there are shared investments or retirement planning, if the couple have joint bank accounts, and whether there are life insurance policies naming the other.
  • The extent of the personal relationship, including the intimacy of the connection, shared vacations, shared friends and social connections, and a sexual relationship (although not necessarily dispositive)
  • Whether the couple share and enjoy each other’s personal property, such as household furnishings, appliances, vehicles, and personal items, such as toiletries or clothing
  • The age of the couple may be an important consideration, which may give more or less weight to the support of one by the other and estate planning providing for children of prior relationships
  • Whether friends, family or the community view the couple was engaging in a personal intimate relationship

The Takeaway

The guidance provided in this case should assist a trial court in determining whether a coupld is cohabitating, even though the facts and circumstances in each particular case. Perhaps the old adage “if it walks like a duck, and quacks like a duck” is most appropriate.   
 

Understanding Same-Sex Divorce

In November, I authored an article on same-sex marriages in the New Hampshire Bar News geared towards helping practioners understand unique issues in same-sex divorces. I reprint here the full article:

Practicing family law in one of the six states that recognizes same-sex marriage requires an understanding of the unique challenges that same-sex couples face in a divorce. Usually, a divorce provides a mechanism to dissolve the legal relationship, divide property and establish parental rights and responsibilities. Although same-sex couples can dissolve their marriage in New Hampshire, reaching a fair and reasonable property division or establishing parental rights and responsibilities is much more difficult.

Marriage & Divorce

New Hampshire practitioners have limited precedent to guide them on several thorny issues that are distinctive to same-sex couples. Ironically, one of the few cases involving same-sex relationships, which is still good law, is now inconsistent with the state’s recognition of same-sex marriage. In the Matter of Blanchflower held that adultery does not include homosexual relationships. The court based its decision on the definition in New Hampshire of adultery, which excludes all non-coital sex acts, no matter the gender of the persons engaging in the act. Thus, although other fault grounds may be pursued, adultery is off the table for same-sex divorcing couples. The Blanchflower Court noted that it was not the function of the judiciary to extend past legislation to provide for present needs.

A common dispute in same-sex divorce is the calculation of the length of the marriage. In cases where the parties’ cohabitated long term prior to the marriage, one party may attempt to tack on the cohabitation to increase the length of the marriage and impact alimony and property division. This argument stems from the claim that had the parties been able to marry, they would have. Without New Hampshire precedent, the court may look to Massachusetts for guidance, where the Massachusetts Supreme Judicial Court has held that marriage benefits apply prospectively to the legalization of same-sex marriage. In addition to the cohabitation argument, the question also remains whether domestic partnerships, like those in California or New Jersey, might be similar enough to a marriage to tack on and create a long-term marriage.

Alimony

The IRS identifies alimony as payments made between spouses or former spouses pursuant to a divorce or separation agreement. Typically, alimony is deductible to the payor and includable as income to the payee for federal income tax purposes. However, the Defense of Marriage Act prohibits the federal recognition of same-sex marriages, and in turn precludes the IRS from recognizing a same-sex spouse as such. Although the IRS has not provided specific guidance on the issue, it seems clear that alimony payments are not tax deductible to the payor and may incur a gift tax liability. The IRS might alternatively consider the payments compensation for past services, with income tax, self-employment tax and possible withholding obligations. Either treatment will incur tax consequences that could be financially devastating to the family.

Property Division

In "traditional" divorces, opposite-sex couples rarely invokes tax consequences during the division of their marital assets. Such property transfers meet specific IRS exemption rules. Same-sex couples on the other hand can be saddled with a large tax liability as a result of property division.

The Defense of Marriage Act disqualifies same-sex spouses from the tax exemptions for property transfers made pursuant to a divorce decree. Instead, same-sex couples incur a gift tax liability for most transfers made between the spouses or former spouses in excess of $13,000. For example, if one spouse transfers $30,000 to the other spouse for property settlement, $17,000 would be taxable. In addition to gift tax, same-sex couples must be aware of capital gains tax when the home is transferred from joint ownership to one spouse.

A specific part of property division is the ability of a spouse to transfer property to a spouse or former spouse by qualified domestic relations order (QDRO) pursuant to the federal Employment Retirement Income Security Act (ERISA), a portion of a retirement plan or tax sheltered annuity. The tax treatment of such transfers depends on the word "spouse." In other words, in order to qualify for the tax-free transfer benefits, the relationship must be recognized by the IRS as a marriage. Under the Defense of Marriage Act, which defines marriage as between a man and a woman, a QDRO is not a vehicle available to same-sex couples to transfer retirement assets tax-free. Instead, same-sex couples must pay taxes and early withdrawal penalties on transfers made to the other spouse, regardless of whether it is deposited into the other spouses’s retirement account.

Parental Rights & Responsibilities

New Hampshire follows the legal principal that a child born into a marriage is presumed to be the legal child of both spouses. This presumption of legitimacy may be attacked however, and if successful could drastically affect the non-biological parent’s right to seek parenting rights and responsibilities, including residential responsibilities. Although the step-parent statute might be a useful tool in this circumstance, the parenting rights accessed through this avenue could look much different than the rights of a legal parent. Co-parent adoption is the safest way to establish protected parenting rights for each spouse.

Why Same-Sex Marriage and Divorce Requires a National Solution

Same-sex marriage and divorce needs a larger solution then the state’s rights approach. Texas Governor Rick Perry, a potential presidential candidate, recently discussed his views on New York’s legalization of same-sex marriage. Perry said: “You know what? That’s New York, and that’s their business, and that’s fine with me. Our federal government is engaged with far too many things they shouldn't be involved with at all." The problem with that view is that once it’s one state’s business, it’s every state’s business.

Historically, marriage has largely been left to the authority of the states. States issue marriage licenses, set the age of consent and prohibit certain family relations from entering into marriages. States also make laws regarding the dissolution of marriages, alimony, child support, property division and custody. But the federal government has its say as well. Congress enacted the Defense of Marriage Act, defining marriage for federal purposes as the union of one man and one woman. More importantly, DOMA specifically relieves states of the obligation to treat a same-sex marriage from another state as a marriage under its own laws. And that’s the trouble.

 

In today’s mobile society, where families easily move across state boundaries for jobs, family, retirement, and education, the failure of another state to recognize a same-sex marriage leaves families in legal limbo and without access to justice if divorce becomes necessary. A spouse, with no other means of support, may be prevented from seeking alimony. A child may be barred from seeing her non-biological parent, to her great detriment. A couple may be forced to remain legally bound to one another, long after they have separated, because their home state refuses to recognize the marriage and allow access to the family court system.

 

These situations and the devastating effects it can have on a family, demand remedy. I make the case for justice, setting aside the legal arguments of both sides of the same-sex marriage debate, from equal protection to the 10th amendment to the full faith and credit clause. The federal government must mandate that same-sex families may dissolve their relationships and settle custody disputes wherever they may move in the country. Until the federal government acts, New Hampshire, which requires the person seeking the divorce to have resided in the jurisdiction for one year, must allow same-sex families who have moved from New Hampshire to access the court system to dissolve marriages entered into in New Hampshire.

Top 10 reasons a court may invalidate a prenup

A premarital agreement, also called antenuptial agreement, is a written contract entered into in contemplation of marriage. A prenup can protect your separate property and address the division of assets in the event of divorce or death of a spouse. Findlaw has a short article listing the top 10 reasons a premarital agreement may be found invalid. The original article has more details on each point that is worth reading through, but here are the reasons in short that a prenup may be invalidated:

  1. NO WRITTEN AGREEMENT
  2. NOT PROPERLY EXECUTED. 
  3. YOU WERE PRESSURED. 
  4. YOU DIDN'T READ IT.
  5. NO TIME FOR CONSIDERATION. 
  6. INVALID PROVISIONS. 
  7. FALSE INFORMATION. 
  8. INCOMPLETE INFORMATION. 
  9. NO INDEPENDENT COUNSEL.
  10. UNCONSCIONABILITY.  

Each state has very specific laws about prenuptial agreements. In New Hampshire, a prenup is generally presumed to be valid unless a party proves circumstances such as 1) fraud, undue influence, duress; 2) failure to disclose a material fact; 3) that the agreement is unconscionable; 4) or circumstances have rendered it unfair. In order to protect the validity of any prenup, parties desiring a prenuptial agreement should contact a seasoned New Hampshire attorney.

Source: Attorney Stephen Worrall's Georgia Family Law Blog post "Top Ten Reasons a Premarital Agreement May be Invalid"

Same-sex marriage and the future of fault grounds in New Hampshire

With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

New Hampshire House to vote on gay marriage bill

This week the New Hampshire House will vote on HB 436, a bill that would legalize same sex marriage in New Hampshire and allow any civil unioned couples to obtain the legal status of marriage. Currently, Massachusetts and Connecticut are the only states that allow same sex marriage. Several states, including New Hampshire, allow same sex couples to enter into civil unions. According to a recent article in the Union Leader, Govenor Lynch, who supported civil unions, opposes gay marriage.

 

Civil unions for opposite sex couples?

I read a post today that got me thinking from Attorney Ryan McKeen at his A Connecticut Law Blog titled Is CT's civil union statute constitutional? Attorney McKeen ponders whether the civil union statute in Connecticut is unconstituional because it does not allow opposite sex couples to enter into a civil union. It is an interesting question that may never be answered. It also begs the question, should there be some form of civil union for opposite sex couples?

If an unmarried, homeowning couple with a child breaks up, the complexity of disentangling after the relationship ends can be frustrating. If the couple cannot agree on how to separate their property and how to parent their child, they would have to go to three different courts to resolve all the issues. The couple would head to Superior Court or the Family Division for parenting and child support, to Probate Court to resolve the home issue, and file an equity action in Superior Court regarding any disputed personal property such as a family pet.

Wouldn't some kind of legal relationship the couple could enter into make the breakup easier on the family? At the same time, opposite sex couples do have the option to marry and benefit from the rights that marriage entails, but they choose not to. What do you think?

Connnecticut court overturns state ban on same-sex marriage

 

Today the Connecticut Supreme Court overturned the state's ban on same-sex marriage in Kerrigan v. Commisioner of Public Health. Four years ago, eight same-sex couples sued the state of Connecticut, arguing that the statutory prohibition against same-sex marriage violated their rights to substantive due process and equal protection under the state constitution. The trial court held that because the state allowed civil unions, the plaintiffs had not suffered a "constitutionally cognizable harm", and therefore found for the state.

In finding for the plaintiffs on appeal, the Connecticut Supreme Court concluded that:

in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

 The Kerrigan ruling makes Connecticut the third state in the country, after Massachusetts (Goodridge) and California (In Re Marriage Cases) to allow same-sex marriage. Here in New Hampshire, the state has allowed for civil unions since January 1, 2008, and is one of nine states to offer some degree of domestic partnership or civil union.

 

Massachusetts legislature votes to repeal 1913 law that prevents out-of-state same-sex couples from marrying

When the Massachusetts Supreme Judicial Court issued the Goodridge decision legalizing same-sex marriage in the Commonwealth, many people inside and outside the state became concerned about couples coming from other states to marry in Massachusetts. In the first few days of same-sex marriage, marriage licenses were issued to non-residents, and have resulted in decisions such as Chambers v. Ormiston which held that Rhode Island courts did not have jurisdiction to hear a divorce case between two people of the same-sex because the state did not recognize the marriage.   

However, Governor Mitt Romney quickly dusted off the Marriage Evasion Act M.G.L.A. 207 § 11. This law was enacted in 1913 and prohibits the marriage of a non-resident in Massachusetts if the marriage would be illegal in their home state. Governor Romney ordered town clerks to strictly enforce the law when handing out marriage licenses.

The original intent of the law is unknown for there is no record of the legislative history. However, the law was enacted during a time when the majority of states (30 out of 48) outlawed interracial marriage, and it is commonly believed that this law was meant to smooth relations between Massachusetts, which has allowed interracial marriage since 1843, and those states that banned such marriages. Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913 and the bill was signed three weeks later by Governor Eugene N. Foss

On July 15, 2008 the Massachusetts Senate voted to approve a bill that will repeal the 1913 law and the House is expected to vote in the near future. Repealing the law paves the way for out-of-state same-sex couples to marry in Massachusetts. Opponents argue that repealing the law meddles in the internal affairs of other states, forcing them to recognize gay marriage, and creates a legal limbo for families. On the other hand, proponents argue that the law should be repealed as a “vile and antiquated remnant of prejudice and bigotry.”

How will the repeal of this bill affect New Hampshire residents? As previously discussed on this blog, New Hampshire allows civil unions and recognizes out-of-state marriages as civil unions. If the Massachusetts house votes to repeal the law, New Hampshire residents may marry in Massachusetts, and return home to have their marriage recognized as a civil union.

There are many in-depth articles chronicling the path of Massachusetts in repealing this law and its effect on same-sex marriage. Some of these articles are below:

·         A 1913 Law Dies to Better Serve Gay Marriages

·         Will the State of Massachusetts Ever Permit Same Sex Out-of-Staters to Marry?

·         Massachusetts Senate Votes to Repeal Law Barring Out-of-State Couples From Marrying

·         Senate Votes to Repeal 1913 Law

Charron v. Amaral: Same-sex marriage benefits do not apply retroactively

Today the Massachusetts Supreme Judicial Court issued an opinion in the case of Charron v. Amaral that held that marriage benefits for same-sex couples do not apply retroactively to the Goodridge v. Department of Public Health  decision.

The case involves a couple, Michelle Charron and Cynthia Kalish, who began dating in 1990, moved in together in 1992 and subsequently bought a house together and had a child that both partners adopted. The couple also exchanged rings in a private ceremony in 1994 and obtained a marriage license in 2004 on the first day such licenses were available to same-sex couples. Charron sought treatment for a lump in her breast in 2002, was diagnosed with breast cancer in 2003 and died in 2006. The claim arose as a malpractice case for loss of consortium.

The plaintiffs argued that, but for the ban on gay marriage, they would have been married at the time the malpractice claim arose in 2002, and therefore the loss of consortium claim should be applied retroactive to the Goodridge decision. The SJC disagreed, and held that it was clear that Goodridge was intended to apply prospectively because it was such a radical change in the law that it required time for the legislature to act. Furthermore, the court found that:

to allow Kalish to recover for a loss of consortium if she can prove she would have been married but for the ban on same-sex marriage could open numbers of cases in all areas of law to the same argument.

Although this case involves a malpractice/loss of consortium claim, the opinion has ramifications for divorce matters in Massachusetts. It is likely that, as a result of the Charron decision, same-sex couples who are divorcing will be barred from arguing that but for the ban on same-sex marriage, the couple would have had a long term marriage retroactive to Goodridge. The difference between a long term marriage and a short term marriage can have ramifications on the property division and alimony awards.

Common law marriage in New Hampshire

The New Hampshire Supreme Court released an opinion on June 3, In Re Estate of David J. Bourassa that clarified the requirements for Common Law Marriage in New Hampshire. The relevant Statute is RSA 457:39. New Hampshire does not recognize common law marriage. However, what the State may recognize is what can be considered a common law marriage by death. The requirements are in three parts:

  1. Cohabitate for 3 or more years preceding death of one partner; and
  2. Acknowledge one another as husband and wife; and
  3. Generally presumed to be husband and wife in the community

This means that a cohabitating couple who is not legally married who have been together for 3 or more years and hold themselves out to be husband and wife are considered legally married upon the death of one partner. It is the death of one partner which triggers the statute if all other elements are satisfied. A couple who simply cohabitate for 3 or more years is not considered legally married under the law.

In the Bourassa case, the couple, David and Deborah, had cohabitated for 10+ years and had one child together. When David died Deborah filed a petition to be declared David’s common law spouse. The Court determined that Deborah had failed to show that she and the deceased fulfilled the last two prongs of the statute. They had not acknowledged or generally been presumed to be married. On the contrary, they were very vocal in making sure everyone knew they were not married.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

California Supreme Court strikes down ban on same-sex marriage

Today the California Supreme Court struck down the state’s ban on same-sex marriage in a 4-3 ruling. The court’s ruling stated that “the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes.” Instead, the question the Court answered was whether the failure to designate the official relationship of same-sex couples as marriage instead of the state recognized domestic partnership violates the California Constitution. The Court found that it did.

The decision and its dissents is 172 pages, so there is a lot to digest. I will post more after I have been able to  read through it in full. In the meantime, to read the opinion yourself, you can find it here. There are also posts through the blogosphere today on the issue, including here at Steven Ballard's Massachusetts Divorce & Family Law Blog, here at Family Law Prof Blog, and here at Jeffrey Lalloway's California Divorce and Family Law Blog.