New Hampshire residents getting divorced find that their marriages fail for all sorts of reasons – sometimes spouses grow apart, stop having common interests, or simply fall out of love. In some cases, there is inappropriate conduct by one spouse that causes the breakdown. New Hampshire spouses who are getting divorced must prove to the court that there are “grounds for divorce” – in other words a “reason” that the marriage failed.
There are two categories for “grounds” in New Hampshire, as there are in many other states – “fault” and “no fault.” In New Hampshire, “no fault” is called “irreconcilable differences” – meaning that you and your spouse just don’t get along and the marriage no longer works. If you’re granted a divorce because of “irreconcilable differences,” the court concludes that neither spouse caused the marriage to fail by his or her misconduct. “Fault” divorce means that one spouse is responsible for the failure of the marriage because of one of the following:
4. Physical abuse
5. Emotional or verbal abuse
6. Conviction for some serious crimes
7. Spouse has been absent for 2 consecutive years
8. Spouse has abandoned and refused to live with other spouse
9. Spouse belongs to group that believes marital relationship is unlawful and refuses to live with other spouse.
If your husband (or wife) had an affair and you are filing for divorce, you need to consider whether you’ll file on grounds of “fault” or “irreconcilable differences.” To assist you in making this strategic decision and guiding you through this type of divorce, it is critical to hire a trusted and experienced divorce attorney. Your divorce lawyer will discuss with you the pros and cons of filing on “fault grounds,” which include the following:
Advantage of “Fault” Divorce in New Hampshire:
If you successfully prove to the court that your husband (or wife) committed adultery, you may get a larger share of property from the marriage and more alimony than if you were divorced on the grounds of “irreconcilable differences.”
Disadvantage of “Fault” Divorce in New Hampshire:
Typically, a divorce brought on “fault” grounds” runs up higher attorney’s fees – the reason being the issues are more complicated and you have the burden of proving additional facts to the court, which include the following three:
Fact #1 to be proven in fault divorce in New Hampshire:
The act of fault – in this case the extramarital affair – caused the marriage to break down. Although this may seem easy to prove, it can be complicated. For example, your husband may deny that the affair caused the breakdown – he may say the marriage was already broken when he had the affair. As such, you can see how this type of excuse or explanation could require more of your and your lawyer’s time to prove it to be incorrect and false in the eyes of the court.
Fact #2 to be proven in fault divorce in New Hampshire:
Your husband had sexual intercourse with another person. Again, you may think this isn’t difficult to prove, but keep in mind that you have to present evidence of intercourse, which isn’t always available. Examples of evidence you may introduce are an admission by your husband or a witness’ testimony that he had an adulterous affair.
Fact #3 to be proven in fault divorce in New Hampshire:
To get a larger share of marital property or more alimony than if you were divorced on grounds of “irreconcilable differences,” you must prove that the affair caused you physical or emotional pain or resulted in substantial financial loss to you or to your family. If you experienced emotional harm, you may need a mental health professional to testify to this. Again, as you can imagine, the mere fact that you need to have this testimony/evidence inevitably increases the overall costs of your divorce.
To conclude, when filing for divorce in New Hampshire, it’s important to understand which type of divorce under which you are going to proceed – and to be aware of the advantages and disadvantages of each from the very beginning.