From the Family Law Letter September - October 2003

Divorce on Fault Grounds

In the May-June Family Law Letter we discussed no-fault divorce and said only nine statutory fault grounds remain on the books in New Hampshire. We’ll look at them now.

Either party (or both) may allege fault grounds for divorce. The petitioner (the first party to file papers in court) can plead fault grounds in the petition; the respondent (the party who files second) may plead them in a cross-petition. There is no particular advantage in filing first, but it is important that one’s initial filing be carefully drafted, as new grounds can rarely be alleged later. These rules also apply to legal separation.

In a fault-based divorce, the “innocent” spouse must first allege under oath that he or she is free from blame in the breakdown of the marriage. A party guilty of fault cannot prevail on fault grounds against the other party.

He or she must then allege that the fault of the other party is the cause of the breakdown of the marriage, that the marriage would likely have survived but for this behavior, and that he or she has not forgiven this behavior. The innocent party must also allege harm to him or herself, which can be psychological, physical, or financial. Certain details of the alleged fault are typically included in the initial pleading, while others are introduced later.

Litigating a divorce on fault grounds can be complex, slow, and costly, so no-fault divorce is more common. In fact, fault is alleged in under ten percent of all divorces and legal separations in New Hampshire, and even when it is, such allegations may be withdrawn later. When the shouting is over, more than 95% of all New Hampshire divorces and legal separations (estimates run as high as 99%) are granted on the ground of irreconcilable differences, or no-fault.

Still, a party who prevails on fault grounds will receive more of the joint assets and less of the joint liabilities than in a no-fault divorce, and fault can also be at least part of the basis for an award of alimony. Depending on the kind of fault proven, other ramifications can include limitations of custodial time, court-ordered supervision, or even a marital restraining order requiring the guilty party to stay away from the marital residence and spouse.

Among New Hampshire’s nine fault grounds, the most commonly alleged is probably adultery. A party alleging adultery is expected to identify the person their spouse is having an affair with in their petition or cross petition; if that person lives in New Hampshire, he or she will become a party to the divorce. The New Hampshire Supreme Court has never ruled on whether a homosexual relationship qualifies as adulterous behavior leading to the breakdown of a marriage, but is expected to do so shortly in a case involving a woman leaving a marriage for a lesbian relationship.

Two other frequent grounds, extreme cruelty and treatment so as to seriously injure health or endanger reason have somewhat arcane legal definitions; proving them requires introducing factual evidence of certain specific elements. The remaining grounds are impotency (but not inability to conceive), conviction and imprisonment for more than one year, absence for two years without being heard of, being an “habitual drunkard for 2 years together,” joining a religious sect that considers marriage unlawful, and abandonment (“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.”). Certain other grounds once on the books, such as “alienation of affection,” have been repealed.

While fault is fairly easy to allege in a petition or cross petition for divorce, it may be difficult and expensive to prove. Private investigators may be needed, depositions may be taken, and other steps may be necessary. Filing on fault grounds is a decision best made after careful analysis and with the advice and counsel of an attorney experienced in family law.