Divorce and legal separation are options for couples who can no longer stay in a marriage in the state of New Hampshire. The difference between these options is that spouses who choose legal separation cannot remarry. If they wish to divorce, they can simply petition the court to change a legal separation into a divorce decree.
The court decides on child custody, child and spousal support payments and property division matters during the legal separation process, according to N.H. Rev. Stat. Section 458:27.
Residency Requirements for Divorce Proceedings in New Hampshire
Spouses who wish to permanently separate can file for divorce in New Hampshire if they meet one of these requirements:
- Both spouses reside in the state.
- Plaintiff (spouse filing for divorce) lived in New Hampshire for a continuous one-year period just before filing for divorce.
- Plaintiff lived in New Hampshire for a continuous one-year period just before filing for divorce and can serve the respondent with divorce papers in New Hampshire.
Plaintiffs do not have to remain at the same address to fulfill residency requirements as long as they stay in the state when filing. They will substantiate residency by their sworn complaint.
Legal Separation Agreements in New Hampshire
In New Hampshire, a couple can choose to legally separate, which is much like a divorce, but neither party can remarry. The court formalizes a legal separation with a judge issuing separation orders. A couple may want to legally separate, for example, if:
- One or both spouses have religious beliefs against divorce.
- They hope to work things out in the future.
- They want to retain their joint health insurance.
New Hampshire family law does not require legal separation as a step before divorcing. A separated couple who decides later that they want to divorce can file a motion with the court to change their legal separation into a divorce decree.
The residency requirements for legal separation are the same as those for divorce, and the filing process for both is also the same. If the spouses agree on significant issues, they can file a joint petition. If they don't, the plaintiff must serve the divorce or legal separation papers to the respondent via the sheriff or certified mail.
Division of Property in New Hampshire Divorce
New Hampshire is an equitable distribution state, meaning it considers all property, including assets a spouse acquired before the marriage or gifts given to either party, to be marital property to be divided equally.
A spouse who wants their assets to count as separate property must argue their position to the court. The court will consider several factors when determining how to split assets between a couple, including:
- Health and ages of the spouses.
- Length of the marriage.
- Contributions to spousal education or development.
- Child custody.
- Reasons for divorce.
The court can also award permanent or temporary alimony to a spouse. It will consider the above factors to determine the amount and duration.
Child Support Guidelines in New Hampshire
A noncustodial parent makes child support payments to assist the custodial parent in the financial support of the couple's minor children. Payments are ongoing, and the amount is determined during divorce and separation proceedings. The establishment of paternity or maternity is the only requirement when requesting child support payments. To calculate child support payments, the state uses these methods:
- Income Share: The court uses economic tables to estimate the total cost per month needed by the custodial parent to raise the children. The noncustodial parent gives the custodial parent a percentage of the calculated cost based on their share of income from both spouses.
- Percentage of Income: A set percentage of the noncustodial parent's income is paid to the parent who does. The amount may stay the same or change depending on changes in the noncustodial parent's income.
When parents share custody, the court may deviate from its child support formulas. Other situations that may account for deviation include extraordinary childcare or medical costs.
If the parent paying child support has a gross income that is less than the amount they need to provide for their own support and they are not voluntarily unemployed or underemployed, the court will order them to pay minimum support for the child.
Child Custody in New Hampshire Divorces
When deciding who gets custody, the court determines how to split parental rights and responsibilities between divorcing spouses. Either parent can have the decision-making responsibilities on some or all issues regarding the child. The parent with custody is responsible for providing a home for the child.
The court will assume that the responsibility of joint decision-making is in the child's best interest if both parents agree, or if either spouse asks for the responsibility and the court believes it is appropriate. However, if abuse of the child has occurred, the court will decide whether joint decision-making is appropriate and make a court order that best protects the minor, the abused parent, or both.
Factors for Deciding Custody
When deciding on custody, a New Hampshire court considers what's in the best interest of the child by looking at certain factors, such as:
- Child's wishes, if mature enough to make a sound judgment.
- Both parents' abilities to provide the child with affection, love, nurturing and guidance.
- Both parents' abilities to provide the child with adequate clothing, food, shelter and a safe environment.
- Both parents' abilities to meet the child's development needs now and in the future.
- Minor's adjustment abilities to their school and community.
- Both parents' abilities and willingness to encourage a positive relationship with the minor and their ability to have contact with the other parent.
- Both parents' abilities to support the minor's contact or relationship with the other parent.
- Child's relationship with any other person who may significantly affect them.
The parents must show they can communicate, cooperate and make joint decisions regarding the child. The court will also consider the incarceration of a parent, the reason they're incarcerated, and for how long. State policy regarding parental rights will also factor into the child's best interest, as will evidence of abuse and its impact on the child and their relationship with the abusive parent.
- Women's Law.org: New Hampshire Custody
- Justia: 2021 New Hampshire Revised Statutes Title XLIII - Domestic Relations Title 458 - Annulment, Divorce and Separation Section 458:26 - Legal Separation.
- Marital Laws.com: Child Support Laws
- New Hampshire Divorce Online: New Hampshire Divorce Requirements
- Germaine Law: Understanding Property Division in a New Hampshire Divorce
- HG.org: New Hampshire Divorce Law
- Case Text: N.H. Rev. Stat. § 458:27
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.