Grounds for Divorce in New Hampshire

Grounds for Divorce

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up on your own, saddle your charger, and ride off into the sunset. Over the years each state has enacted legislation that governs acceptable grounds. New Hampshire is what is known as a no-fault divorce state, which means that neither party is required to state specific grounds for divorce other than the standard "irreconcilable differences that have caused the irremediable breakdown of the marriage." The vast majority of divorces in New Hampshire are no-fault.

It is possible, however, to state a cause for divorce in New Hampshire for one or more of the following reasons:

• impotence,
• extreme cruelty,
• adultery, (If adultery is charged, the "co-respondent" must be named in the petition, i.e. the person with whom your spouse is committing adultery),
• conviction of a crime punishable for more than one year of incarceration,
• treatment by one spouse of the other that could seriously injure health,
• abandonment by one spouse of the other for a period of at least two years,
• when one party has been in an habitual drunken state for a period of over two years, or
• when one party joins a religious sect or society that believes the relations between husband and wife are unlawful and who refuses to cohabit for a period of 6 months or longer.

How To Prove Adultery

There is most likely no such thing as a pleasant adultery case because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have essentially caught your spouse in the act and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.Public displays of affection, such as hand-holding, kissing, and hugging between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 p.m. and not coming out until 8 a.m. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is mere speculation. The same is true if you only show there was opportunity but cannot prove disposition.

Naming The Co-Respondent

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

The Adulterers

Adulterers are not equal under the blanket of the law. Adultery may impact parenting plan issues if the adultery is proven to have harmed or negatively impacted the children. Adultery does not necessarily affect alimony awards but could be a factor for consideration in awarding alimony.

Condonation

Generally, if you knew your spouse committed adultery but nevertheless continued to live and cohabit with your spouse, then your spouse will argue that adultery cannot be used as a ground. And, once you resume marital relations after you learned of the adulterous act, the courts feel that you have forgiven or "condoned" the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery over the new affairs. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file for adultery regarding the newly discovered affairs.

Crimes

If your spouse has been convicted - not simply charged of a crime, that is a ground for divorce in New Hampshire. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to be sentenced to serve more than a one-year sentence in a penitentiary or penal institution.

Desertion And Abandonment

For all practical purposes, desertion and abandonment are one and the same. . There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In New Hampshire, the abandonment has to continue for 2 years or longer.

Constructive Desertion

Constructive desertion is distinguished from actual desertion in that it is behavior by one spouse to the other that is so negative and serious that the behavior is treated as the equivalent of a desertion, despite the fact that the perpetrating spouse does not physically leave. Following are some examples of marital misconduct that would constitute constructive desertion:

• Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. (The denial of sex alone does not constitute desertion);
• Failure to carry out the mutual responsibilities of the marital relationship;
• Behavior that endangers the spouse's life, health, safety, or self respect, or
• Behavior considered cruel to the spouse.

Insanity

Your spouse must be judged permanently and incurably insane and be confined in an institution or a hospital for a minimum of three years before filing. To prove insanity, two or more psychiatrists are needed to testify that your spouse is incurable and that there is no hope of recovery. The court will appoint an attorney to act in the defense of your spouse whom you purport to be insane. These costs are usually borne by you.

Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for divorce under more than one ground: for instance, adultery and desertion.

Legal Separation

In New Hampshire, the same grounds apply for legal separation as apply for divorce.Divorce and legal separation are identical in all respects, with the important exception that with legal separation, the marriage is not legally terminated and therefore neither party can remarry. If the parties wish to change the status of a legal separation to a divorce, they can do so by filing the appropriate papers with the family courtin their jurisdiction and the legal separation case will be converted to a divorce case.

Annulment

An annulment is a rare legal proceeding establishing that a valid marriage never occurred for one or more of the following reasons:

1. one or both of the parties is already legally married to someone else;
2. one or both parties are underage;
3. the parties are close blood relatives; or
4. one of the parties lied about something important to the marriage.

Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.