New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

Yesterday Maine voters repealed the state’s same-sex marriage law, six months after the law was passed by the legislature. In doing so, Maine became the thirty first state to oppose same-sex unions in a popular vote. Five states, Iowa, Connecticut, New Hampshire, Massachusetts and Vermont are performing same-sex marriages, with the District of Columbia and New York recognizing the marriages but not performing them. New Jersey and California allow for civil unions.

Question 1, brought forward pursuant to the “people’s veto” process in Maine’s constitution, asked voters “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" 53% of voters approved Question 1, about the same margin of victory as California’s Prop 8. Maine’s same-sex marriage law was put on hold after the proponents of Question 1 collected the required signatures to put the question to a popular vote.

What does this mean for Maine residents? Same-sex partners are still vulnerable without the financial and legal protections that a civil union or marriage offers. Maine’s same-sex couples must be very detailed in their estate planning, partnership agreements, and legal status as parents of any children of the relationship. Additionally, Maine residents must carefully consider the ramifications of seeking a civil union or marriage in other states. Although New Hampshire and Massachusetts are just quick drives across the Piscataqua River, entering into a legal relationship that cannot be dissolved in your own state can have very dire consequences.

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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.

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Yesterday the New Hampshire Senate passed a revised HB 436 that would allow same-sex couples to marry in New Hampshire. The bill differs from the bill the House passed, in that it makes a distinction between civil and religious marriage, and states that any couple is allowed to obtain a civil marriage. The bill is expected to be on the desk of Governor John Lynch later today or tomorrow. Governor Lynch has previously stated that he believes traditional marriage is best, although it remains to been seen whether he will veto it.

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Today the New Hampshire House voted to approve HB 0436, which would legalize gay marriage in New Hampshire, by a vote of 186 to 179. The bill also includes provisions allowing clergy the freedom to determine whether or not to marry a gay couple. The bill will now move to the Senate for debate and vote.

Governor Lynch is opposed to gay marriage, and it is expected that he will veto the legislation. The Union Leader reports that his press secretary Colin Manning said:

The civil unions bill he signed into law prevents discrimination and provides the same legal protections to all New Hampshire families to the extent that is possible under federal law.

Source: Union Leader "NH House endorses gay marriage"

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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.

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Although the country’s attention was, for the most part, focused upon the presidential election on November 4^th, there were several ballot questions across the country regarding same-sex marriage. The most high profile was Proposition 8 in California, a ballot measure that passed and  amended the state constitution to define marriage as between one man and one woman. The passage of Prop 8 reverses In Re Marriage Cases, the California Supreme Court case that legalized same-sex marriage in the state this past June. Arizona and Florida also passed similar measures on November 4th, defining marriage as between one man and one woman with Prop 102 and Prop 2 respectively.

The election results highlight the vast divide throughout the country over same-sex marriage, with over twenty five states now banning same-sex marriage, two states allowing same-sex marriage and several states, including New Hampshire, allowing some form of civil union or domestic partnership. Additionally on a national level, the Federal Defense of Marriage Act defines marriage as it pertains to any Act of Congress or administrative rulings and regulations as “only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.” With the wide disparity of laws from state to state, the inconsistency can leave families in legal limbo without a way to dissolve a legal relationship.

New Hampshire residents, thanks to the civil union statute, will not be left in legal limbo. If you have been married in another jurisdiction, or entered into a civil union, you may dissolve the relationship as though it were a civil union in New Hampshire.

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