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.

98% of New Hampshire divorces are based on "no-fault"

Following up on my post earlier this week regarding the New Hampshire Supreme Court's recent decision in Guy, the Union Leader published an article titled "Email fall short for fault-based divorce." The article includes interesting statistics on divorce in New Hampshire based on records from the New Hampshire Division of Vital Statistics Records Administration that shows that 98% of divorces are granted for "no-fault."

  2000 2004 2008
Total Divorces 5,970 5,106 4,913
Irreconcilable Differences 5,920 5,042 4,847
Adultery 26 19 27
Extreme Cruelty 7 9 9
Abandonment 2 1 10

 

 

 

 

As the statistics show, most cases are based on "no-fault" or irreconcilable differences. In 2008, out of 4,913 divorces, only 66 were based on fault grounds (the top three being adultery, extreme cruelty, abandonment). One cause of the low rate of fault ground divorces is that most cases settle before trial and the parties agree to divorce based on irreconcilable differences. 

Additionally, even where fault grounds exist, some parties choose not to pursue them for several factors. Alleging fault grounds can dramatically increase the cost, length, and stress involved in a divorce. When deciding whether to file for fault grounds, it is important to consider the reason for seeking the fault grounds, what the fault grounds will accomplish and whether it will damage a co-parenting relationship.

What are fault grounds?

New Hampshire is a state that recognizes both fault and no-fault grounds for divorce. The no-fault grounds allege that "irreconcilable differences which have caused the irremediable breakdown of the marriage." In other words, the parties just cannot get along and there is no hope of fixing the marriage.

New Hampshire recognizes the following fault grounds:

  • Impotency of either party. 
  • Adultery of either party. 
  • Extreme cruelty of either party to the other. 
  • Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. 
  • When either party has so treated the other as seriously to injure health or endanger reason. 
  • When either party has been absent two years together, and has not been heard of. 
  • When either party is an habitual drunkard, and has been such for 2 years together. 
  • When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. 
  • When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.

In order to prevail in the divorce on fault grounds, the party alleging the fault must be an "innocent spouse." For example, a party cannot allege that the breakdown of the marriage was caused by the other parties adultery, when that party contributed to the breakdown by being an habitual drunk. Even if a party does not prove fault grounds, they are still entitled to a divorce based upon irreconcilable differences.