New Hampshire Divorce Law
Divorce and Legal Separation in New Hampshire
Divorce and Legal Separation in New Hampshire
New Hampshire Divorce Basics
To file for divorce in New Hampshire both parties must be domiciled in New Hampshire; the Plaintiff (filing spouse) is domiciled in the state; or the Plaintiff was domiciled in the state for a continuous one year period immediately before commencing the divorce action.
Proof that a person obtaining a Divorce from the Bonds of Matrimony in another jurisdiction was domiciled in this state within 12 months prior to the commencement of the proceeding, and resumed residence in this state within 18 months after the date of his/her departure, or at all times after his/her departure from New Hampshire and until his/her return maintained a place of residence within the state, shall be acceptable evidence that the person was domiciled in the state when the divorce proceeding was commenced.
A divorce obtained in another jurisdiction shall be of no force or effect in New Hampshire, if both parties to the marriage were domiciled in the jurisdiction of New Hampshire at the time the proceeding for the divorce was commenced.
A Petition for Divorce from the Bonds of Matrimony must be filed in the Superior Court of the county where either party lives, and notice of the Petition must be given to the Respondent (non-filing spouse). If the parties file a Joint Petition, notice or further service is not required.
Service of Notice:
Service within New Hampshire shall be made by either of the following methods:
- A sheriff, in hand or by leaving an attested copy of the Petition, Orders of Notice, and an Appearance form at the respondent's abode, within 25 days of receipt of Orders of Notice. The return of service shall state the street and number, or some other description, of the abode. The petitioner shall file the Return of Service with the court as proof of service;
- Certified mail, return receipt requested, restricted delivery, mailed within 7 days of receipt of Orders of Notice, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.
Service outside the state shall be made by either of these methods:
- An officer authorized to make service of process in the state where the respondent lives. Proof of out-of-state service shall be made by a return of the officer under oath, accompanied by an official certificate of his or her official character or authority. The petitioner shall file the Return of Service with the court as proof of service;
- Certified mail, return receipt requested, restricted delivery, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.
The petitioner shall file the petition with the court together with the name and address of a newspaper published in the city or town nearest to the respondent's last known address. Service shall then be ordered by publication in the newspaper, with publication to be completed not less than 15 days before the return date, and by certified mail addressed to the respondent, care of the relative or friend of the respondent, or otherwise as the court may order. Publication may be waived for good cause upon motion to the court.
Whenever, before or during a hearing but before a final decree, the court determines that there is a likelihood for rehabilitation of the marriage relationship, it shall refer the parties to an appropriate counseling agency within its jurisdiction. If the court determines that there is a reasonable possibility of reconciliation, it shall continue the proceedings and require that both parties submit to marriage counseling.
In the Case of Minor Children:
In the event of any divorce or separation action where there are minor children involved, the court shall, no later than the respondent's filing of an appearance, require the parties to attend a 4-hour information session. This session shall be a seminar on how to help the children deal with the issues surrounding divorce, separation, and the allocation of parental rights and responsibilities.
In any divorce or nullity of marriage proceeding, the court may restore a former name of the spouse, regardless of whether this request had been included in the original Petition.
The clerk of the superior court for each county, at the end of each term of court, shall return a full and correct list of all changes of names that have been decreed by the court since the last return, to the registrar of vital records.
Civil Union and Same Sex Marriage
Up until January 1, 2011, parties to New Hampshire civil unions were permitted to apply to the clerk of the town or city in which their civil union was recorded to have their civil union legally designated and recorded as a marriage, without any additional requirements of payment of marriage licensing fees or solemnization as required by statute (RSA 457), unless the civil union had been previously dissolved or annulled. These parties also had the option of applying and receiving a marriage license and having the marriage solemnized, provided that the parties were otherwise eligible to legally marry and that the parties to the marriage were the same as the parties to the civil union. The civil unions were then dissolved by operation of law by the marriage, as of the date of the marriage stated in the newly obtained marriage certificates.
Parties to civil unions already established prior to January 1, 2010, who did not convert/transform their union into a marriage prior to January 1, 2011, shall be deemed to be married as of January 1, 2011 and these civil unions were merged into such marriage by operation of law on January 1, 2011.
A civil union legally contracted outside of New Hampshire shall be recognized as a marriage in this state, provided that the relationship does not violate the statutes.
Legal Grounds for Divorce
- 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 treated the other seriously enough to injure health or endanger reason;
- When either party has been absent two consecutive years, and has not been heard of;
- When either party is an habitual drunkard, and has been so for two consecutive years;
- 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 consecutive months;
- When either party, without sufficient cause, and without the consent of the other, has abandoned and refused to cohabit with the other for two consecutive years;
- Irreconcilable differences which have caused the irremediable breakdown of the marriage.
If both parties are found to have committed an act or acts which justify a finding of irreconcilable differences, a divorce shall be decreed and the acts of one party shall not negate the acts of the other nor bar the divorce decree. The court's findings and decree may be based on oral testimony or written stipulations of the parties.
Jurisdiction of the cause for divorce exists when it wholly arose or accrued while the plaintiff was domiciled in the state, and not otherwise.
Annulment/Nullity of Marriage
- No person shall marry his/her father, mother, father's brother, father's sister, mother's brother, mother's sister, son, daughter, brother, sister, son's son, son's daughter, daughter's son, daughter's daughter, brother's son, brother's daughter, sister's son, sister's daughter, father's brother's son, father's brother's daughter, mother's brother's son, mother's brother's daughter, father's sister's son, father's sister's daughter, mother's sister's son, or mother's sister's daughter.
- No person shall be allowed to be married to more than one person at any given time.
Marriages legally contracted outside the state of New Hampshire, which would be prohibited as identified above if contracted in New Hampshire, shall not be legally recognized in this state.
Null and Void Marriages:
- No male below the age of 14 years and no female below the age of 13 years shall be capable of contracting a valid marriage that is entered into by one male and one female.
- No male below the age of 18 and no female below the age of 18 shall be capable of contracting a valid marriage between persons of the same gender.
The accepted age of consent for both males and females is 18. Any marriage contracted by a person below 18, except under specific circumstances, may in the discretion of the superior court be annulled at the suit of the party who was under-age at the time of contracting the marriage, or at the suit of his/her parent or guardian, unless the previously under-age party had subsequently confirmed the marriage after attaining the age of consent.
If the parent or guardian of a minor files a Petition for Annulment, the Superior Court is authorized to make such orders as in the discretion of the court that will protect the interest of the minor child, including but not limited to orders directing the minor child to return to its parents or guardian.
The party against whom the orders are issued may file a written request with the clerk of the superior court and request a hearing. This hearing shall be held no later than five days after the request is received by the clerk. The request shall be filed with the clerk of court for the county in which the Petition of Annulment is filed.
Contracting prohibited marriages in other jurisdictions:
If any person residing and intending to continue to reside in New Hampshire is prohibited from contracting marriage under the laws of the state and goes into another jurisdiction and contracts a marriage there, that is prohibited and declared void by the laws of New Hampshire, such marriage shall be null and void for all purposes in this state, with the same effect as though such prohibited marriage had been entered into in this state.
No marriage shall be contracted in New Hampshire by a party residing and intending to continue to reside in another jurisdiction if the marriage would be void if contracted in that jurisdiction, and every marriage contracted in this state under this type of violation shall be null and void.
If any doubt exists whether any marriage is void, or as to the effect of any former decree of divorce or nullity between the parties, a petition may be filed as in other cases and a decree of divorce or nullity may be made.
Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans' disability benefits.
When a divorce is decreed, the court may order an equitable division of property between the parties. The court shall presume that an equal division is an equitable distribution of property, unless the court establishes a trust fund under applicable statute (RSA 458:20) or unless the court decides that an equal division would not be appropriate or equitable after considering one or more of the following factors:
- The duration of the marriage;
- The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party;
- The opportunity of each party for future acquisition of capital assets and income;
- The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party;
- The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects;
- The actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties;
- Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home;
- Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party's educational or personal career opportunities for the benefit of the other's career or for the benefit of the parties' marriage or children;
- The expectation of pension or retirement rights acquired prior to or during the marriage;
- The tax consequences for each party;
- The value of property that is allocated by a valid prenuptial contract made in good faith by the parties;
- The fault of either party as specified in the statutory grounds for divorce, if the fault caused the breakdown of the marriage and caused substantial physical or mental pain and suffering; or resulted in substantial economic loss to the marital estate or the injured party;
- The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage;
- The value of any property acquired by gift, devise, or descent; and
- Any other factor that the court deems relevant.
Alimony and Support
The motion for alimony must be made within five years of the decree of nullity or divorce and the following criteria must be met:
- The party in need lacks sufficient income, property, or both, including property apportioned in accordance with the applicable Property Division laws, to provide for his/her reasonable needs, taking into account the style of living to which both parties have become accustomed during the marriage; and
- The “paying” party is able to meet reasonable needs while meeting those of the party seeking alimony, taking into account the style of living to which both parties have become accustomed during the marriage; and
- The party in need is unable to be self-supporting through appropriate employment at a standard of living that meets reasonable needs or is allocated parental rights and responsibilities for a child of the parties whose condition or circumstances make it appropriate that the parent not seek employment outside the home.
In determining the amount of alimony, the court shall consider the following factors:
- The length of the marriage;
- The age of the parties;
- The health of the parties;
- The social or economic status of the parties;
- The occupation, amount and sources of income of the parties;
- The property awarded in the divorce;
- The estate, liabilities and needs of the parties;
- The vocational skills and employability of the parties;
- The opportunity of each party for future acquisition of capital assets and income;
- The fault of either party with regards to a fault-based ground for divorce; and
- The federal tax consequence of the order.
Child Custody and Support
Any provision of law that refers to the "custody'' of minor children shall mean the allocation of parental rights and responsibilities as provided by statute. Any provision of law which refers to a "custodial parent'' shall mean a parent with 50% or more of the residential responsibility and any reference to a non-custodial parent shall mean a parent with less than 50% of the residential responsibility.
Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of the state of New Hampshire, unless it is clearly shown that in a particular case it is detrimental to a child, to sustain the following:
- Support frequent and continuing contact between each child and both parents;
- Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced;
- Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect;
- Grant parents and courts the widest discretion in developing a parenting plan; and
- Consider both the best interests of the child in light of the factors listed below and the safety of the parties in developing a parenting plan.
- The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance;
- The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment;
- The child's developmental needs and the ability of each parent to meet them, both in the present and in the future;
- The quality of the child's adjustment to his/her school and community and the potential effect of any change;
- The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent;
- The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent;
- The support of each parent for the child's relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent;
- The relationship of the child with any other person who may significantly affect the child;
- The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent;
- Any evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent;
- If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration; and
- Any other additional factors the court deems relevant.
In determining parental rights and responsibilities, including residential responsibility, the court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.
Except in instances of abuse, when ordering decision-making responsibility, there shall be a presumption that joint decision-making responsibility is in the best interest of the minor children.
If the court finds that a parent has been convicted of sexual assault or there has been a finding by a court of competent jurisdiction of sexual abuse against such parent's minor child or minor stepchild, the court may prohibit contact between such parent and the victim of the abuse and any sibling or step-sibling of the victim. The court shall make orders that best protect the victim of the abuse and the siblings and step-siblings of such victim.
If a parent makes a good faith allegation based on a reasonable belief supported by facts that his/her child is a victim of physical abuse, neglect and/or sexual abuse perpetrated by the other parent and if the parent making the allegation acts lawfully and in good faith in accordance with such belief to protect the child or seek treatment for the child, the parent making the allegation shall not be deprived of parenting time, or contact with the child based on reasonable actions taken in accordance with that belief.
In proceeding to establish or modify a judgment providing for parenting time with a child, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan, the court may develop it. In developing a parenting plan, the court shall consider only the best interests of the child and the safety of the parties.
A parenting plan may include provisions relative to the following:
- Decision-making responsibility and residential responsibility;
- Information sharing and access, including telephone and electronic access;
- Legal residence of a child for school attendance;
- Parenting schedule, including holiday, birthday, and vacation planning and weekends, including holidays, and school in-service days preceding or following weekends;
- Transportation and exchange of the child;
- Relocation of parents;
- Procedure for review and adjustment of the plan; and
- Methods for resolving disputes.
After the filing of a Petition for divorce, annulment, or separation where there are minor children involved, the court shall make such further decree in relation to the support and education of the children as shall be most conducive to their benefit, and may order a reasonable provision for their support and education.
The amount of a child support obligation shall remain as stated in the order until the dependent child for whom support is ordered completes his/her high school education or reaches the age of 18 years, whichever is later, or marries, or becomes a member of the armed services, at which time the child support obligation, including all educational support obligations, terminates without further legal action. If the order involves a disabled child, the court shall specify the duration of the order, which may be beyond the time when the child reaches the age of 18.
If the order establishes a support obligation for more than one child, and if the court can determine that within the next three years support will terminate for one of the children as provided above, the amount of the new child support obligation for the remaining children may be stated in the order and shall take effect on the date or event specified without further legal action.
No child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school.
Each child support order shall include the court's determination and findings relative to health insurance and the payment of uninsured medical expenses for the child. The court shall determine whether private health insurance is accessible and available to either parent at a cost that is at or below the reasonable medical support obligation amount, as established and ordered by statute (RSA 458-C:3, V), or is available by combining the reasonable medical support obligations of both parents, and, if so available, the court shall order the parent, or parents, to provide such insurance for the child. The cost of providing private health insurance is the cost of adding the child to existing coverage, or the difference between individual and family coverage. Accessible health insurance means the primary care services are located within 50 miles or one hour from the child's primary residence.
If the court determines that private health insurance is not accessible or available at a cost that is at or below the reasonable medical support obligation amount, it shall establish a cash medical support obligation for either or both parents, equal to the reasonable medical support obligation amount, and order that either or both parents shall obtain such private health insurance if it subsequently becomes accessible and available at a cost that is at or below the reasonable medical support obligation amount. When ordered in lieu of private health insurance, an obligation for cash medical support shall be suspended and shall not accrue during such time as the obligated parent is providing private health insurance in accordance with the law.
A court may order either or both parents to pay a medical support obligation, either to provide health insurance coverage or as cash medical support, in excess of the reasonable medical support obligation amount, in such other circumstances, as the court deems appropriate.
New Hampshire child support laws operate under the following guidelines:
- Both parents shall share responsibility for the economic support of the children;
- The children in the paying parent’s initial family are entitled to a standard of living equal to that of any subsequent family the paying parent may have;
- The percentage of net income paid for child support should vary according to the number of children and, with limited exemptions, not according to income level.
- Court-ordered or administratively ordered support actually paid to others, for adults or children;
- Fifty percent of actual self-employment tax paid;
- Mandatory, not discretionary, retirement contributions;
- Actual state income taxes paid; and
- Amounts actually paid by the paying parent for allowable child care expenses or the medical support obligation for the minor children to whom the child support order applies.
Number of Children Percentage of Net
4 or more 45%
The total child support obligation shall be divided between the parents in proportion to their respective adjusted incomes, except when the parent receiving the child support incurs child care expenses or she/he pays actual expense for the medical support obligation for the minor children for whom child support is being ordered. In these cases the child care and/or medical expenses are deducted from the receiving parent’s AGI.
If the paying parent's gross income is less than the self-support reserve and the court has determined that he/she is not voluntarily unemployed or underemployed, the court shall order the child support obligation in the amount of a minimum support order.
If the paying parent's gross income is greater than the self-support reserve but payment of the order as calculated under statute would reduce his/her income below the self-support reserve, the paying parent's share of the total support obligation shall be presumed to be the difference between the self-support reserve and that parent's AGI, but in any event shall be no less than the amount of a minimum support order.
The court shall establish and order a reasonable medical support obligation for each parent. The presumptive amount of this obligation shall be 4% of the individual parent's gross income, unless the court establishes and orders a different amount based on a written finding or a specific finding, made by the presiding officer on the record, that the presumptive amount would be unjust or inappropriate, using the statutory criteria set forth below.
When raised by any party to the action or by the court, special circumstances shall be considered in light of the best interests of the child and may result in adjustments in the application of the support guidelines. The court shall make written findings relative to the applicability of the following:
- Ongoing extraordinary medical, dental or education expenses, including expenses related to the special needs of a child, incurred on behalf of the involved children;
- Significantly high or low income of either parent;
- The economic consequences of the presence of stepparents, step-children or natural or adopted children;
- Reasonable expenses incurred by the parent paying support in exercising parental rights and responsibilities, provided that the reasonable expenses incurred by the parent receiving support for the minor children can be met regardless of such adjustment;
- The economic consequences to either party of the disposition of a marital home made for the benefit of the child;
- The opportunity to optimize both parties' after-tax income by taking into account federal tax consequences of an order of support, including the right to claim the child(ren) as dependents for income tax purposes;
- State tax obligations;
- Parenting schedule;
- The economic consequences to either party of providing for the voluntary or court-ordered postsecondary educational expenses of a natural or adopted child; and
- Other special circumstances found by the court to avoid an unreasonably low or confiscatory support order, taking all relevant circumstances into consideration.
Legal Separation and Limited Divorce
After obtaining a Decree of Legal Separation, either party may file a motion to amend the decree to one of divorce. The court may then consider whether justice requires that such a change be made, and, upon such consideration, the court may, in its discretion, grant such a motion.
The procedure for filing a Petition for Legal Separation shall be the same as that for Petitions for Divorce, and the court shall have the same power in all matters relating to restraining orders and decrees, allowances, alimony, parental rights and responsibilities for children and division or apportionment of the property of the parties, as in cases of divorce. The name of the wife shall not be changed.
After the filing of a petition for separation, the superior court may issue orders with such conditions and limitations as the court deems just which may, at the discretion of the court, be made on a temporary or permanent basis.
These orders may include the determination of the temporary custody and maintenance of any minor children as shall be deemed expedient for the benefit of the children and temporary allowance to be paid for the support of the other spouse.
If either spouse is living apart from the other without justifiable cause or willingly absents himself/herself from the other, the Superior Court, upon Petition by the spouse, or if insane, by his/her guardian or next friend, may issue orders which may at the discretion of the court be ex parte and which may grant the same relief as provided for in actions for divorce, annulment, legal separation or decree of nullity. The residency requirements of shall not apply in this instance; and the court may grant this relief to a nonresident plaintiff if the defendant is a resident of this state.
Resumption of Marital Relations:
If the parties to a legal separation wish to resume marital relations, they may file the change in writing, signed, acknowledged and witnessed, with the clerk of the Superior Court for the county where the separation was decreed. This resumption of marital relations shall terminate and annul all restraining orders, and all decrees relating to alimony or parental rights and responsibilities, but shall not affect any decree relating to the division or apportionment of property.
Links to State Resources
- New Hampshire Child Support Guidelines
Links to text of the current NH child support guidelines (current as of 4/1/2011) and of the previous guidelines.
- New Hampshire Divorce Forms
Downloadable forms for divorce and other related topics provided by the NH Judicial Branch.
- New Hampshire Statutes – Title 18: Domestic Relations
Links to the text of NH statutes which deal with marriages, civil unions, annulment, divorce, separation, child custody, child support, parental rights and responsibilities, husband and wife, and adoption.