New Hampshire Issues of Fault in Divorce

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Most divorces in New Hampshire are granted based on irreconcilable differences that caused or are the substantial cause of the final breakdown of their marriage. Additionally, New Hampshire recognizes that one party's may be the substantial cause of the final breakdown of the marriage.

What happens when a party files for divorce based on irreconcilable differences and based on alleged fault conduct? The New Hampshire Supreme Court has addressed this issue on several occasions. In Cabot v. Chabot, 126 NH 793 (1985), the wife filed for divorce on the grounds that irreconcilable differences caused the final breakdown of the marriage and then tried to amend to add extreme cruelty by the husband and conduct by him which injured her health and/or reason causing the final breakdown of the marriage. The trial court denied the motion to amend. On appeal, the Supreme Court concluded that the amendments should be made. Still, the trial court must determine which ground for divorce was the substantial cause of the final breakdown of the marriage as that determination could affect the claims for alimony and property division.

It is possible to assert a fault ground even if his or her spouse has filed for divorce alleging that the marriage is over based on irreconcilable differences. In Yergeau v. Yergeau, 132 NH 659 (1990), the husband filed for divorce, alleging irreconcilable differences. His wife believed that he was being unfaithful and followed him on several occasions. She found his truck at the home of whom she believed was his paramour and watched his vehicle at night. The truck remained there for the duration. The wife then filed for divorce on the basis of adultery. The husband sought to dismiss her claim on the basis that he already filed under oath that the marriage was irretrievably broken down. The trial court granted a divorce to the wife on the ground of husband's adultery. On appeal, the husband argued that "there was no adequate circumstantial evidence, see Jeanson v. Jeanson, 96 N.H. 308, 309, 75 A.2d 718, 719 (1950), that he engaged in adultery with the co-respondent prior to his second and final departure from the marital residence after executing his libel for divorce. From this he argues that the adultery cannot reasonably be found to have caused the breakdown of the marriage, upon which any divorce must be predicated." The New Hampshire Supreme Court affirmed noting that the cause of the final breakdown of the marriage is an issue of fact that the trial court must resolve by determining the primary cause of the final breakdown of the marriage.

It's important to note that a person's conduct after filing a petition for divorce may have a substantial impact on the divorce proceeding. RSA 458:7 provides that a divorce "shall be decreed in favor of the innocent party for any of the following causes." Among those causes are adultery of either party. RSA 458:7 II. In IMO of Ross, 169 NH 299 (2016), the husband filed for divorce alleging wife's adultery as the substantial cause of the final breakdown of the parties' marriage. About eleven months later, the husband met someone and engaged in sexual intercourse with that woman. The parties were still married since their case had not yet been settled. His wife then filed a motion to dismiss the husband's adultery claim on the basis that he was no longer an innocent party. The trial court granted the motion. The Supreme Court affirmed ruling that nothing in the statute limited the requirement of "innocent party" to the date of filing. Since the husband has the burden of proving all elements of his adultery claim, including his own status as an innocent party, the trial court properly dismissed his action for adultery.

Given the delay in our family division system, especially for complex matters where the trial may not be reached for more than a year, parties will pay a price in celibacy to pursue a fault divorce.