A person seeking a divorce may cite adultery or an extra marital relationship as the reason for terminating their marital union. The accusation of adultery in New Hampshire is particularly significant because a spouse may seek a fault grounds divorce due to an adulterous relationship. But what is adultery in the eyes of the Court?
In a 2003 decision the New Hampshire Supreme Court, interpreting RSA 458:7, limited the definition of adultery to sexual intercourse between persons of the opposite sex when one of the persons is married. In the Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227-28 (2003). Therefore, the spouse of a person engaging in a homosexual extra-marital sexual relationship could not pursue a fault grounds divorce on the basis of adultery.
In what will likely become known as a landmark opinion the New Hampshire Supreme Court has reversed its decision in Blanchflower and ruled that sexual intercourse between a married person and someone other than that person’s spouse, regardless of either person’s sex or gender, constitutes “adultery.” In the Matter of Molly Blaisdell and Robert Blaisdell, No. 2020-0211, 2021 WL 1222134, at *1 (N/H. Apr. 1, 2021).
The party claiming adultery as the cause of the breakdown of the marriage must also be “innocent” of any fault grounds listed in RSA 458:7.
Additionally, there are a number of factors to consider in regard to a fault grounds divorce. Filing a petition which states that a spouse has engaged in an extramarital relationship, has the potential to anger or embarrass the opposing spouse. This could make an already hostile relationship worse or, in some cases, destroy any potential for an amicable dissolution of the marriage. One should carefully weigh the benefits and costs before proceeding.
Determining whether it is in your best interest to seek a divorce on fault grounds and cite to adultery is extremely fact specific. It is often best to discuss your specific situation with an attorney. Likewise, if your spouse has filed for divorce and alleged fault grounds, you may need to discuss your options with an attorney.
If you are in need of an attorney to assist in your divorce, please contact our office to schedule a consultation.
Samantha Mills is a Law Clerk at The Crisp Law Firm, PLLC and a 2021 graduate of the UNH Franklin Pierce School of Law