Divorce
is an area of Family Law that frequently delves into the
sensitive foundation of the parties’ relationship. Some clients come in
emotional, hurt, and raw, looking to determine the exact cause of their
divorce. However, fault-based divorces are difficult to prove in and of
themselves. Moreover, parties must prove that the alleged fault was the exact
and only cause of the breakdown of the marriage. Even when the parties are
convinced they can achieve a fault-ground divorce (like adultery), there are a
number of traps and pitfalls for potential Petitioners. The defense of
“recrimination” is one such example. As a practical matter, this defense is
frequently conjoined with a cross-petition for a fault-ground divorce to help
support this legal defense.
In
August of 2016, the New Hampshire Supreme Court considered the application of
recrimination for fault-ground divorces, especially in the fault ground of
adultery. Under RSA 458:7, “[a] divorce from the bonds of matrimony shall be
decreed in favor of the innocent party for any of” the statutorily-listed
causes. In short, a fault-based divorce means that the guilty party loses their
right to determine the outcome of the divorce. However, innocent in this
statute is a legal term meaning “free from guilt”. Rockwood v. Rockwood, 105 N.H. 129, 131 (1963). As applied to RSA
458:7, it was accepted that parties must come into the divorce with clean hands
in order to properly maintain a fault-based divorce. As mentioned, the defense
to a fault-ground divorce is recrimination. Recrimination simply means that the
allegedly innocent party is “guilty of an offense against the other spouse,
which would be grounds for divorce.” Id.
The question before the Court was based on the timing and use of this defense.
The Court considered whether one must maintain clean hands through the entire
Court proceeding, instead of only prior to the time of filing.
In the Matter of Ross and
Ross, the Court determined that parties must
remain their innocence in order to maintain their fault-ground divorce. 2016
N.H. LEXIS 184, *1 (Aug. 23, 2016). The parties’ divorce lasted for four years.
Id., at *2. Both parties alleged
fault-grounds at the start of the divorce proceedings. Id. Neither party disputed that the Respondent, who alleged
adultery as a fault-ground for divorce, began a sexual relationship with
another partner after the divorce proceedings began. Id., at *5. The Court decided that causation, or the reason for the
breakdown of the marriage, is not an element of recrimination. Id., at *6. As a legal defense,
recrimination is a simple question of whether a party is guilty of actions that
would lead a Court to grant a fault-ground divorce in accordance with RSA 458:7
against them. In short, recrimination only requires a party to prove the other
party is not innocent at any time during the divorce proceedings. See Rockwood, 105 N.H. at 131.
It
is worthwhile to combine the facts and the law in summarized terms. The parties
were still technically married. One party engaged in a sexual relationship
after the divorce began with someone other than his spouse. He was guilty of
adultery as a legal definition. Thus, his fault claims were dismissed on the
basis of recrimination. The Court does not care if that instance of adultery
could not have possibly caused the breakdown of the marriage. One may say, as
the Respondent attempted to argue, that this is a wholly unreasonable result.
In an interesting moment of self-reflection, the Court at least addressed that
their resolution of this matter might lead to impractical resolutions. However,
the Court indicates that it is the New Hampshire Legislature’s job to address
the concerns of public policy.
Divorces
are difficult enough. It is important to choose an attorney that will attempt
to work with all parties to find an equitable and reasonable solution whether
it be through collaboration or litigation. At Parnell, Michels & McKay we seek to
guide people through the toughest times of their lives by providing sound legal
advice steeped in the practical necessities particular to a client’s life. If
you are interested in learning more about divorce, or have questions and
concerns about family law, please contact us to learn
more. We want to help.
