Considering Premarital Cohabitation in an Equitable Division of Property

In August of 2016, the New Hampshire Supreme Court issued a decision In the Matter of Munson and Beal which gives the Court the clear ability to consider the parties’ premarital cohabitation in the determination of an equitable division of marital property. 

Every discussion about the division of marital property begins with what is marital property.  Many clients come into our office with the belief that assets titled to that party individually or assets that party brought into the marriage are not marital assets.  This is wrong.  In New Hampshire, RSA 458:16-a defines marital property as all assets titled to either party individually or to the parties jointly. This means that all assets are marital assets, no matter how they are titled. The statute also requires the Court to divide the “marital property” equitably, but states there is a presumption that “equal” is “equitable”.  This presumption means that in most cases, the marital property will be divided equally. However, the Court is permitted to deviate from an equal division based on a number of factors or special circumstances. Those factors or special circumstances include the length of the marriage, whether property was owned by one party prior to marriage, the disparity in the parties’ earnings or abilities to acquire assets in the future, and any other factor the court deems relevant in equitably dividing the parties’ assets.

The Munson and Beal decision dealt specifically with the length of the marriage and the trial court’s application of that factor to the determination of an equitable division of marital assets.  In Munson and Beal, the parties were a same-sex couple. They had lived together for about 15 years before entering into a civil union in 2008. In January of 2011, their civil union converted to a marriage by operation of law. In March of 2012, Ms. Munson filed for divorce. At trial Ms. Munson argued that the court should consider the fact that their marriage was of short duration in the equitable division of assets. Ms. Beal argued that the court should consider their 21 year relationship in the equitable division of assets. The trial court issued a decree of divorce awarding Ms. Munson approximately 88% of the marital assets relying heavily on the date of the civil union being the start of the marriage. The trial court concluded that the marriage was a short-term marriage and as such, an equal division of assets was not appropriate. The court refused to consider the parties’ premarital cohabitation when it divided the marital assets.

Ms. Beal appealed the trial court’s decision to the New Hampshire Supreme Court.  The Supreme Court looked at RSA 458:16-a and the many prior cases concerning that statute. With regard to the length of the marriage, the Supreme Court noted prior decisions finding that a marriage of short duration may be considered differently than a long-term marriage, and that the duration of the marriage is only one of the factors for the court to consider when equitably dividing the assets.  The Supreme Court also noted that in prior cases, the Court had not found it necessary to decide whether the trial court may consider premarital cohabitation under RSA 458:16-a, II. Relying on the statute’s language permitting the trial court to consider “[a]ny other factor that [it] deems relevant”, the Supreme Court held that the trial court has the discretion to consider premarital contribution in divorce proceedings when determining whether to apply the presumption that an equal division of assets is an equitable division of assets. As the trial court apparently believed it had no discretion to consider the premarital cohabitation, the Supreme Court vacated that portion of the trial court’s decree of divorce.

Although this case involved a same-sex couple, the Supreme Court was clear to state that the holding in this case that the court may consider premarital cohabitation applies to all divorce proceedings.

As RSA 458:16-a gives the trial court the discretion to consider a number of factors in deciding how to equitably divide the parties’ assets, it is important to discuss these factors and the facts of your case with an experienced family law attorney.  The family law attorneys at Parnell, Michels & McKay have the experience necessary to help you decide whether it would be worthwhile to pursue these factors at trial.