Fault vs. No-Fault Divorce Grounds in New Hampshire: RSA 458:7 Strategic Considerations

When you file for divorce in New Hampshire, you must provide the court with a legal reason-known as 'grounds'-for why the marriage is ending. The state gives you two main paths: No-Fault and Fault-based. Choosing the right grounds is one of the most critical strategic decisions you will make. It dictates how aggressively the case will be litigated, how much it will cost, and potentially how your life savings will be divided.

Because alleging fault can escalate a case into a fierce courtroom battle, we strongly suggest browsing our directory to consult with a local New Hampshire family law attorney to map out the best strategy for your specific situation.

No-Fault Divorce: Irreconcilable Differences

Most divorces in New Hampshire are filed as no-fault. Under N.H. Rev. Stat. § 458:7-a, you simply state that 'irreconcilable differences have caused the irremediable breakdown of the marriage.' This means nobody is legally to blame; you just cannot get along anymore. The primary benefit of a no-fault divorce is that it is private, faster, and significantly cheaper because you do not have to put your spouse's bad behavior on public trial.

Statutory Fault Grounds Under RSA 458:7

If your spouse's actions directly destroyed the marriage, you can file under fault grounds. N.H. Rev. Stat. § 458:7 lists several specific reasons you can use to hold your spouse legally accountable. The most common include:

Adultery

If your spouse engaged in a sexual relationship outside the marriage, you can claim adultery. You do not necessarily need photos of the act, but you must provide the New Hampshire Circuit Court, Family Division, Manchester with circumstantial evidence showing your spouse had both the 'disposition' and the 'opportunity' to cheat.

Extreme Cruelty

This ground involves physical or severe emotional abuse that endangers your health or reason. A pattern of domestic violence, violent threats, or psychological torment fits this category.

Habitual Drunkenness

Under N.H. Rev. Stat. § 458:7, VII, you can file for fault if your spouse has been an habitual drunkard for 2 or more years together. Proving this usually requires medical records, police reports (like multiple DUIs), and witness testimony showing chronic intoxication.

Abandonment

If your spouse packed up and left the marital home without your consent and has been absent for two continuous years, you can file for divorce based on abandonment.

How Proving Fault Influences Equitable Property Division

Why spend the money to prove fault? The answer lies in property division. New Hampshire is an 'equitable distribution' state. Under N.H. Rev. Stat. § 458:16-a, the judge presumes that splitting assets 50/50 is fair. However, if you successfully prove a fault ground, the judge is legally permitted to alter that split in your favor.

Simply proving adultery or cruelty is not an automatic guarantee of an unequal distribution. Under N.H. Rev. Stat. § 458:16-a, II(l), to receive a disproportionate share of the assets (such as a 60/40 split), you must prove that the fault ground caused the breakdown of the marriage and either caused substantial physical or mental pain and suffering, or resulted in substantial economic loss to the marital estate or the injured spouse. For example, if your spouse dissipated $50,000 of marital funds on an extramarital affair or subjected you to abuse that caused severe emotional trauma, the court can award you a greater share of property to compensate for that harm. While general property division principles were examined in cases like McAlpin v. McAlpin, 129 N.H. 737 (NH Supreme Court 1987) in the context of no-fault dissolutions, fault-based adjustments are governed strictly by the statutory criteria in section 458:16-a, II(l).

Heightened Litigation Costs and Evidentiary Standards

Alleging fault drastically increases your legal fees. Your attorney cannot just take your word for it; they must gather hard evidence. This means issuing subpoenas, conducting sworn depositions, and often hiring private investigators. A standard no-fault divorce might cost $3,000 to $7,000 in attorney fees, but a fiercely contested fault-based trial can easily exceed $15,000 to $30,000. You must weigh the financial cost of the litigation against the potential financial gain of an unequal property split.

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